Federal Court says open courts principle overrides Privacy Act

29 Aug

On June 5th the Federal Court of Appeal held that material filed in a Canadian Transportation Agency dispute resolution proceeding is accessible to the public notwithstanding the prohibition on disclosing personal information in the federal Privacy Act.

The CTA exercises, in part, a quasi-judicial dispute resolution function. In excercising this function the CTA passed rules requiring that materials filed in a proceeding be placed on the public record unless subject to a confidentiality order. The applicant argued that records filed and not subject to a confidentiality order are “publicly available” and therefore exempt from a prohibition on disclosure arising under sections seven and eight of the Privacy Act. The Office of the Privacy Commissioner of Canada, an intervener, argued that information is not publicly available unless it is “obtainable from another source or available in the public domain for ongoing use by the public.”

The Court agreed with the applicant. It said:

From the time of their placement on the Public Record, such documents are held by the Agency acting as a quasi-judicial, or court-like body, and from that time they become subject to the full application of open court principle. It follows, in my view, that, once on the Public Record, such documents necessarily become Publicly Available.

Lukács v. Canada (Transport, Infrastructure and Communities), 2015 FCA 140 (CanLII).

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