BC Supreme Court quashes decision ordering identification of RFQ evaluators

On December 9th, the British Columbia Supreme Court held that the British Columbia OIPC erred in its handling of a claim that the identities of BC Hydro employees who had evaluated an RFQ for services at a controversial hydroelectric project should be withheld. Hydro argued that identifying information may be withheld due to the potential harm to the employees’ physical and mental health.

The Court held that the OIPC improperly elevated the test for harm set out in the Supreme Court of Canada’s Merck decision – more than a possibility but less than a probability. Helpfully, it said the OIPC was wrong to suggest that Hydro “had to establish some employees were physically hurt or employees suffered from mental health issues before bringing itself within the [applicable exemption.” It also said, “I am also troubled by the Delegate’s comment that there was no evidence proffered from employees regarding how the disclosure of their names might threaten their mental health… It was unreasonable to expect such evidence in the circumstances.”

British Columbia Hydro and Power Authority v British Columbia (Information and Privacy Commissioner), 2019 BCSC 2128 (CanLII).

Threat Exchanges and FOI Legislation

Here’s the second paper that relates to the panel I will be sitting on later this week. It is a collection of FOI case digests about the hacking threat with a covering thesis about the need for greater protection from disclosure. This one particularly caught my interest and includes some ideas I will come back to. Enjoy, and again, please send comments by PM.

 

Federal Court says firearm serial numbers not personal information

On October 9th, Justice McHaffie of the Federal Court held that firearm serial numbers, on their own, are not personal information. His ratio is nicely stated in paragraphs 1 and 2, as follows:

Information that relates to an object rather than a person, such as the firearm serial numbers at issue in this case, is not by itself generally considered personal information”since it is not information about an identifiable individual. However, such information may still be personal information exempt from disclosure under the Access to Information Act, RSC 1985, c A-1 [ATIA] if there is a serious possibility that the information could be used to identify an individual, either on its own or when combined with other available information.

The assessment of whether information could be used to identify an individual is necessarily fact-driven and context-specific. The other available information relevant to the inquiry will depend on the nature of the information being considered for release. It will include information that is generally publicly available. Depending on the circumstances, it may also include information available to only a segment of the public. However, it will not typically include information that is only in the hands of government, given the purposes of both the ATIA and the personal information exemption.

This is not a bright line test, though Justice McHaffie did say that the threshold should be more privacy protective than if the “otherwise available information” requirement was limited to publicly available information or even information available to “an informed and knowledgeable member of the public.”

Canada (Information Commissioner) v Canada (Public Safety and Emergency Preparedness), 2019 FC 1279 (CanLII).

Transparency, open courts and administrative tribunals: implications of Toronto Star v AG Ontario

Here’s some commentary I submitted in support of my panel appearance on Wednesday at the above-named OBA conference.

It appears there are not too many fans of the Toronto Star decision among administrative tribunal practitioners, though the tribunals themselves seem to be more ambivalent. I’m among those who don’t like the policy implications of Toronto Star. For insight please read my commentary.

On Wednesday I spoke about the practical impact of practicing under truly presumptive, court-like openness in which no adjudicative decision (with due process rights) stands between a requester and a client’s filings. In short, it will invite the application of a new analysis prior to making any filing. What in here is confidential? Can I compromise – making my client’s case without it? At what cost? Is it better to seek a confidentiality order of some sort? At what cost? Does the media require notice of my motion? At what cost? Did I mention cost?

I encouraged tribunal staff in attendance to think about how critical a concern privacy has become and how individuals expect and are owed, at a minimum, due process. In my view requiring applications for access (made on notice) is a model for access that’s more consistent with the object of administrative justice – specialized, low cost, accessible justice.

Ont CA says doctor gross revenue information is not personal information

As reported widely, yesterday the Court of Appeal for Ontario affirmed an IPC/Ontario finding that gross revenue earned by Ontario’s top earning doctors was not their personal information.

There’s not much to the decision. (A number of the grounds for appeal were “optimistic.”) The decision illustrates that information must reveal something of a personal nature about an individual (in the relevant context) to be the individual’s personal information. In the doctors’ case, the link between gross income and the personal finances was not strong, as noted by the Court:

The information sought was the affected physicians’ gross revenue before allowable business expenses such as office, personnel, lab equipment, facility and hospital expenses. The evidence before the Adjudicator indicated, however, that, in the case of these 100 top billing physicians, those expenses were variable and considerable.

In another context, gross revenue information could be personal information. What is and is not personal information is a VERY contextual matter.

Ontario Medical Association v. Ontario (Information and Privacy Commissioner), 2018 ONCA 673.

OCA says Children’s Lawyer records not under MAG’s custody or control

On June 18th the Court of Appeal for Ontario held that the Ministry of the Attorney General is not in custody or control of records in a Children’s Lawyer litigation file even though the Children’s Lawyer, for administrative purposes, is part of MAG. The finding turns on the Children’s Lawyer’s independence and the privacy interests of the children it represents. These kind of contextual factors are important to the custody or control analysis. As stated by the Court, “an organization’s administrative structure is not determinative of custody or control for purposes of FIPPA.”

This decision is consistent with other law that suggests records within an institution are not always in custody or control of an institution – e.g., certain faculty records and personal e-mails. Custody or control is therefore no simple concept to administer and is prone to dispute. At least for now IPC decisions will be subject to judicial review on the correctness standard, another (surprising) finding the Court of Appeal made in rendering its decision.

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII).

 

Ontario Court says FOI statute fails in providing access to administrative tribunal records

Yesterday the Ontario Superior Court of Justice held that the Ontario Freedom of Information and Protection of Privacy Act violates section 2(b) of the Charter because it goes too far to protect the privacy of parties, witnesses and others in matters heard by the Ontario Human Rights Tribunal, Ontario Labour Relations Boards and other statutory tribunals.

The Toronto Star brought the Charter application. It argued that the access regime created by FIPPA is too restrictive and too slow to meet its Charter-based right of access to “adjudicative records” – records of things filed before tribunals like pleadings and exhibits as well as tribunal decisions. A number of Ontario tribunals process requests for adjudicative records formally under FIPPA while others provide access more informally. The Star argued that the informal process must be the norm.

Justice Morgan allowed the application and declared that FIPPA violates the Charter by imposing a presumption of non-disclosure of “personal information” in adjudicative records. It is a puzzling decision for two reasons.

First, there is virtually no discussion about whether the open courts principle ought to apply to administrative tribunals. The Court’s application of the open courts principle appears to be derived from a provision requiring openness in the Statutory Powers Procedure Act:

All parties acknowledge that administrative hearings governed by the Statutory Powers Procedure Act (“SPPA”) are required to be open to the public. In principle, therefore, it is uncontroversial that “[t]he ‘open court’ principle” – at least in some version – “is a cornerstone of accountability for decision-making tribunals and courts.”

One might argue that the Court elevates a statutory presumption (which ought to be read in harmony with FIPPA) into a constitutional right. One might also argue that there are policy imperatives for administrative justice that weigh against recognition, in respect of tribunals, of the same level of openness that applies to courts – expediency and ease of access, for example. These two imperatives in particular are likely to suffer if administrative tribunal records are treated similarly to court records.

Second, the Court’s decision rests on what it says is a flawed “presumption of non-disclosure” – one that makes personal information in adjudicative records presumptively inaccessible. According to the Court this presumption arises out of the framing of FIPPA’s section 21 “unjustified invasion of privacy exemption,” which states that personal information shall be withheld unless its disclosure would not constitute an “unjustified invasion of privacy.”

It is too strong to call this a presumption, particularly in light of section 53 of FIPPA, which states, “Where a head refuses access to a record or a part of a record, the burden of proof that the record or the part falls within one of the specified exemptions in this Act lies upon the head.” To the contrary, all records in an institution’s custody or control are presumptively accessible under FIPPA, with limitations on the right of access dictated to be “limited and specific” as stipulated FIPPA’s purpose provision.

It’s quite arguable that FIPPA grants a right of access subject to a balancing of interests that has been carefully calibrated by the legislature and ultimately governed by an expert tribunal – the Information Privacy Commissioner/Ontario. Justice Morgan did not hide his views about the IPC, stating “In terms of the expertise of the institution heads and, in particular, the IPC, it is fair to say that the jury is still out. ”

 Toronto Star v. AG Ontario, 2018 ONSC 2586.