Notable quote from recent EWCA freedom of information judgement

On November 22, 2023, the Court of Appeal (England and Wales) held that the Freedom of Information Act 2000 permits the public interest in maintaining non-absolute exemptions to be weighed in the aggregate against the public interest in disclosure.

This decision is technical, and about the unique structure of the United Kingdom’s freedom of information statute. Lady Justice Andrews even remarked, “I anticipate that it will rarely be the case that the issue of statutory construction that we have been asked to resolve would make a practical difference to the outcome of an application for disclosure under FOIA.” The ICO is apparently appealing nonetheless.

I am blogging about the decision because Lord Justice Lewis provides us with this good quote that challenges the idea that a purposive interpretation of an access statute necessarily favours access. He says:

…it is too simplistic to say, as the Upper Tribunal did and as the respondents do, that aggregation of the different public interests in non-disclosure would lead to less disclosure of information and so run counter to the purpose of FOIA which is to promote openness. Similarly, it is unduly simplistic to take the view that FOIA is to be interpreted in as liberal a manner as possible in order to promote the right to information. As Lord Hope recognised in the Common Services Agency case, the right to information is qualified in significant respects and appropriate weight must be given to those qualifications as the “scope and nature of the various exemptions plays a key role within the Act’s complex analytical framework” (see paragraph 34 above). A similar approach to FOIA has been recognised by Lord Walker in BBC v Sugar (No.2) [2012] UKSC 4, [2012] 1 WLR 439, especially at paragraphs 76 to 84 and in Kennedy by Lord Mance and Lord Sumption (with whom Lord Neuberger and Lord Clarke agreed) in the quotations set out at paragraphs 35 and 36 above. Rather, the wording of section 2(2) should be considered, in the light of the statutory context, to determine how Parliament intended the system of exempting information from disclosure to operate.

Bear in mind that the purpose sections in Ontario’s freedom of information statutes expressly state that statutory “exemptions” from the public right of access should be “limited and specific.” The Divisional Court, however, has also held that the statutory purpose of FIPPA and MFIPPA weights in favour of narrowly construing exclusions – the provisions that remove certain records entirely from the scope of the right of access. I question that approach for the reasons articulated by Lord Justice Lewis; it is too simplistic an approach to discerning legislative intent.

Dept for Business and Trade v IC and Montague [2023] EWCA Civ 1378.

BCSC addresses university possession and control of research records

On November 6th, the Supreme Court of British Columbia affirmed a British Columbia OIPC finding that a university was in possession and control of e-mails sent and received by a faculty member that the University claimed related to research. The Court nonetheless quashed the OIPC’s order to issue a decision in respect of the e-mails on the basis that they were not excluded from the public right of access.

The request was for e-mail correspondence between a faculty member and his research collaborator in Japan over a lengthy time period. The University denied the request based on the statutory exclusion for “research information” in British Columbia FIPPA – an exclusion meant to safeguard academic freedom.

On appeal to the OIPC, the University relied on an affidavit from the targeted professor that stated all of the requested communications were related to ongoing research. The affidavit also described the general nature of the communciations, but did not include an index.

The requester responded that the faculty member and his colleague from Japan “have collaborated on numerous formal complaints to TRU about Dr. Pyne’s professional work and behavior” and indicated that they were seeking correspondence that established an improper leak of related information by the faculty member to the colleague – an act of “professional activism.” The OPIC held that the records were under the University’s possession and control and that the University failed to meet its onus of establishing that they were excluded. It ordered it to make a decision as to their release under FIPPA.

The Court affirmed the OIPC’s possession and control finding, dismissing the University’s argument that academic freedom rendered the e-mails beyond its possession and control. The Court said:

[49] Much of TRU’s argument on both arms of the custody and control issue is an attempt to characterize the academic university setting as one in which ordinary analysis does not apply. The argument is that academic faculty members are special: they have academic freedom, which is to say, a protected sphere of individual autonomy, within which they are free from oversight and direction by the university, and their email correspondence within that sphere should be no more subject to disclosure under FIPPA than would be purely personal correspondence.

[50] Counsel for OIPC submits that both arms of TRU’s argument are analytically misplaced because, while FIPPA recognizes the importance of academic freedom, it does so under the aegis of the research information (or research materials) exception in s. 3(1)(e) (now s. 3(3)(i)). I agree with this submission. The research information exception makes room for TRU’s argument. It is unhelpful to have to deal with it separately as an argument about custody or control.

The suggestion in the last sentence above is that the existence of the statutory exclusion lends support to institutional possession and control – i.e., that academic freedom is protected by the exclusion but does not restrict a University’s ability to handle faculty records in processing requests.

The Court nonetheless quashed the OIPC’s order. It held that the University’s evidence established that at least some of the responsive e-mails were excluded, and that the resulting order to issue a decision in respect of all responsive records was over-broad. In making this finding, it held that the OPIC had a reasonable basis for doubting the faculty member’s “blanket assertion” given the competing evidence about “professional activism.”

IMHO the University’s affidavit ought to have carried the day. It may make sense to require better, more particular evidence to support an exclusion claim when the claimant’s evidence is rebutted, but I don’t believe it was rebutted in this case. The only assertion by the requester is that the set of responsive e-mails likely contained information about a research misconduct matter, and research misconduct is typically treated as within the scope of academic freedom and subject to academic self governance and freedom.

Thompson Rivers University v British Columbia (Information and Privacy Commissioner), 2023 BCSC 1933 (CanLII).

Federal Court of Appeal modifies test for application of open courts principle to administrative tribunals

On July 27th, the Federal Court of Appeal held that the Parole Board of Canada erred in denying the media access to recordings of its hearings.

The matter was about an application for copies of recordings of parole hearings involving notorious convicted criminals Paul Bernardo, William Shrubsall and Craig Monro. The Corrections and Conditional Release Act provides for parole hearings that the Supreme Court of Canada has said are inquisitorial in that the Board is bound to consider all evidence put before it in conducting a form of risk assessment. The Act also gives the public a presumptive right to attend hearings. The media can therefore (presumptively) attend and report on hearings, though the Act deems personal information in the recordings (and other documents on the record) not to be publicly available for for the purpose of the Access to Information Act and the Privacy Act.

The CBC relied on the open courts principle, though the Court ultimately determined the matter on administrative law grounds. It held the Board unreasonably reckoned with the odd scenario – that the media had already heard and reported on everything recorded even though it was deemed not to be publicly available – and erroneously refused to disclose the recordings “outright” based on an unreasonable amplification of the privacy risk. It suggested that there may be some privacy risks in providing access, but that they could be satisficed by imposing conditions on storage and republication.

As for the open courts principle, the Court accepted the following Board argument against application:

The Board says that it is not because its proceedings are inquisitorial – not adversarial – in that the Board is engaged in a risk assessment process in the course of which it receives information from Corrections Canada and submissions from the offender and victims. The offender is not opposed by a representative of the state, as is the case, for example, in a sentencing hearing. Similarly, the offender’s counsel, if they have one, has a limited role in Board hearings.

It also, however, modified and expanded the test for application, noting that the test should focus on the degree to which a tribunal presides over an adversarial proceeding rather than the procedural trappings of the proceeding. It explained:

It appears that, whatever other distinctions may exist between different kinds of administrative tribunals, the fact that a tribunal presides over adversarial proceedings as an adjudicative body is a reliable indicator that the tribunal is subject to the open court principle. It is the fact of adjudicating competing interests that imposes the duty of fairness and impartiality which gave rise to the description of some tribunals as quasi-judicial. In Toronto Star Newspapers Ltd. v. Ontario (Attorney General), 2018 ONSC 2586, 142 O.R. (3d) 266, such tribunals were described as adjudicative tribunals. The characteristic that gives rise to the application of the open court principle to an administrative tribunal is the presence of an adversarial process, as opposed to the formalities by which that adversarial process is conducted. In short, the open court principle applies to adjudicative tribunals.

The Court ordered the matter to be returned to the Board for reconsideration.

Canadian Broadcasting Corporation v. Canada (Parole Board), 2023 FCA 166 (CanLII).

BCSC quashes FOI decision about risk of harm to Airbnb hosts

On July 4th, the Supreme Court of British Columbia quashed a British Columbia OIPC order to provide an FOI requester with access to information about Airbnbs operating in the City of Vancouver.

The City licenses short term rentals. It publicly discloses license information, presumably to enable renter inquires. However, the City stopped publishing host names and rental addresses with license information in 2018 based on credible reports of safety risks. Evidence of the safety risks was on the record before the OIPC – general evidence about “concerned vigilante activity” and harassment, evidence about a particular stalking episode in 2019 and evidence that raised a concern about enabling criminals to determine when renters likely to be out of the country.

The OIPC nonetheless ordered the City to disclose:

License numbers of individuals;
Home addresses of all hosts (also principle residences given licensing requirements); and
License numbers associated with the home adresses.

It was common ground that the above information could be readily linked to hosts by using publicly available information, rendering the order upsetting to Airbnb’s means of protecting its hosts. Airbnb only discloses the general area of rentals on its platform, which allows hosts to screen renters before disclosing their address.

The evidence affirmed the OIPC dismissal of the City’s safety concern as a reasonable application of the Merck test, but held that the OIPC erred on two other grounds.

First, the Court held that the OIPC unreasonably held that home address information was contact information rather than personal information. It failed to consider the context in making a simplistic finding that home address information was “contact information” because the home address was used as a place of business. The disclosure of the home address information, in the context, had a significant privacy impact that the OIPC ought to have considered.

Second, the Court held that the OIPC erred in not giving notice to the affected hosts – who numbered at least 20,000 – and for not providing reasons for its failure. The Court said this was a breach of procedural fairness, a breach punctuated by the evidence of a stalking and harassment risk that the OIPC acknowledged but held did not meet the Merck threshold.

This is a wonderful case that illustrates how judicial review works. In my view, the evidence about the risk of harm drove the outcome despite the Court’s affirmation of the OIPC finding. The Court simply found an easier way to address the problem with the OIPC’s outcome – a procedural fairness finding. The notice obligation is no small obligation in cases like this, but cannot be rightly ignored.

Airbnb Ireland UC v Vancouver City, 2023 BCSC 1137.

NLCA opts for narrow interpretation of third-party information exemption

On February 2nd, the Court of Appeal of Newfoundland and Labrador held that only a party who owns third-party information has standing to rely on the third-party information exemption in the Newfoundland Access to Information and Privacy Act.

The Newfoundland exemption is in section 39, and reads as follows:

39.(1) The head of a public body shall refuse to disclose to an applicant information

(a) that would reveal

(i) trade secrets of a third party, or

(ii) commercial, financial, labour relations, scientific or technical information of a third party;

(b) that is supplied, implicitly or explicitly, in confidence; and

(c) the disclosure of which could reasonably be expected to

(i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party,

(ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied,

(iii) result in undue financial loss or gain to any person, or

(iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into alabour relations dispute.

The words “of a third party” are not common to all FOI statutes. Ontario’s statutes, for example, simply say, “A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information supplied…”

The Court of Appeal gave effect to these words in an appeal about a request for a table listing all video lottery terminal (VLT) operators in Newfoundland and Labrador with their retailer operating name, location, and the total net revenue generated by VLTs at that location. The Atlantic Lottery Corporation supplied this information to the Department of Finance, who received the request. After the Atlantic Lottery Corporation had lost an appeal to court in its attempt to shield the information from the right of public access, the Beverage Industry Association of Newfoundland (the BIA) and Labrador asserted third party standing on behalf of the VLT operators.

The Court held that the VLT operators had no standing because they did not own the information. It rejected the BIA argument that a beneficial interest in the information was sufficient to support standing given the purpose of the Act, which is to foster transparency.

The Court also held that this point was so clear that neither the Department (pursuant to its mandatory duty to notify affected third parties) nor the Information and Privacy Commissioner (as a matter of fairness and discretion) failed to meet their respective duties on account of not notifying the BIA.

Newfoundland and Labrador (Information and Privacy Commissioner) v Beverage Industry Association of Newfoundland and Labrador, 2023 NLCA 2 (CanLII).

Manitoba judge implores common sense approach to privacy protection

On November 11th of last year, the Manitoba Court of Kings Bench ordered the City of Winnipeg to release information sought by an FOI requester, rejecting a claim that the information constituted “personal information.”

The media requester sought access to records of breaches and penalties imposed on Winnipeg police officers for breach of police service regulations. The City recorded this information in quarterly reports without names or other direct identifiers, and routinely published the reports internally to approximately 2,000 civilian and police service members.

In answering the request, the City redacted information about penalties imposed for each violation (identified only by regulation number) under the “unjustified invasion of personal privacy” exemption. It claimed that to include penalty information would render the information personal information, the disclosure of which constituted an unjustified invasion of personal privacy. Here is the City’s re-identification risk argument:

[7] Some of the penalties in the Routine Orders are unique and significant and might be apparent to family and close friends of the member who received the penalty. If a member received a penalty of loss of days, family or close friends of the member could be aware of a change of routine because the member has reduced pay or less leave. Family or close friends who saw the penalty in combination with the timeframe on the Routine Order in which the penalty was registered might make the connection and realize that their friend or relative was investigated by their employer and what the particular charge was.

And more:

[9] Some of the charges in the Routine Orders are specific and could result in public identification of the member by that fact alone. For example, witnesses, and complainants could be aware of the circumstances that resulted in the Regulatory charge and if they saw the charge and the Routine Orders in combination with the timeframe on the Routine Order in which the penalty was registered, could then become aware of the penalty imposed.

The Court rejected this argument and found that the information was not personal information based on the well-established reasonable expectations test – a test that asks whether a proposed disclosure, in conjunction with other available information, could reasonably be expected to identify an individual. Notably, the court held that this standard imposes the same evidentiary burden articulated by the Supreme Court of Canada in Merck Frosst – a burden that requires proof of a non-speculative event considerably more likely than a mere possibility but not necessarily proof of an event that is likely.

Like most public sector access and privacy statutes, the Manitoba Freedom of Information and Protection of Privacy Act does not shield personal information from the right of public access entirely – it only protects against unjustified invasions. The judge noted this, noted the City’s broad internal publication of the penalty information at issue and urged those charged with facilitating access to records to approach their task “with a healthy dose of common sense.”

Annable (CBC) v. City of Winnipeg, 2022 MBKB 222 (CanLII).

IPC/Ontario addresses legibility and the duty to accommodate FOI requesters

On December 23rd, the Information and Privacy Commissioner/Ontario issued an order that illustrates the Ontario law governing the legibility of records and institution’s duty to accommodate freedom of information requesters with disabilities.

These issues are governed by section 48(4) of the provincial act and section 37(3) of the municipal act. They read as follows:

Where access to personal information is to be given, the head shall ensure that the personal information is provided to the individual in a comprehensible form and in a manner which indicates the general terms and conditions under which the personal information is stored and used.

The IPC has held that these sections require institutions to provide reasonable quality copies, though not to transcribe or provide records in an alterative format subject to a duty to accommodate. Regarding accommodation, the IPC has held that institutions have a duty to provide disabled requesters with their personal information in a format that is comprehensible or intelligible to them. This duty is to be informed by the duty to accommodate in respect of service provision as established by the Human Rights Code, and presumably has a similar scope.

As with accommodation requests made under the Code, requesters who seek accommodation have a duty to establish the existence of a disability and their related medical needs. In its December order, the IPC dismissed an appeal that claimed a university had a duty to provide handwritten notes in an alternative format because the requester’s disability rendered the notes illegible. The requester did not provide sufficient evidence of his medical needs to establish a right to accommodation.

McMaster University (Re), 2022 CanLII 123506 (ON IPC).

Alberta CA interprets intergovernmental relations FOI exemption broadly

On December 6th, the Court of Appeal for Alberta held that a record supplied by a local police service to another local police service is amenable to withholding under the intergovernmental relations exemption in the Alberta Freedom of Information and Protection of Privacy Act.

The document at issue was a threat assessment report supplied by the RCMP to the Edmonton Police Service. The RCMP was acting under contract to provide local police services, which led the Alberta OIPC to find that it was an agency of the province. The OIPC relied on the heading “disclosure harmful to intergovernmental relations” and held that information supplied to a public body by an entity within Alberta could not qualify for exemption.

The Court held that the OIPC erred in its narrow interpretation of the exemption and by finding that the RCMP was an agency of the province. In the circumstances, the RCMP was to be treated as any other police service – a “local government body” – and one who could benefit from the exemption in disclosing information to another local public body. The OIPC put too much weight on the “intergovernmental relations” heading, it said, and ignored the plain wording of the Act.

Edmonton Police Service v Alberta (Information and Privacy Commissioner), 2022 ABCA 397 (CanLII).

IPC/Ontario affirms $140,000 fee estimate for e-mail request

On September 28th, the Information and Privacy Commissioner/Ontario affirmed a $140,132 fee estimate and decision to deny a request to waive the same.

The requester was interested in matters related to the expenditure of funds on a new hospital site in Windsor. In relation to this interest, he sought hospital e-mails from 17 accounts that spanned a nine year period. The requester provided 100 search terms that were broad and seemingly un-targeted at the subject matter of interest.

The hospital generated its estimate based on an application of the requester’s terms. It estimated 145,000 pages of responsive records and calculated the estimate based on the (standard) two minutes of preparation time per page. It did not include time for its search.

The IPC upheld the fee estimate and the fee waiver denial. It said, “a fee waiver would shift an unreasonable burden of the cost to hospital.”

I’ve been tracking “e-FOI” decisions for many years, and believe this to be the highest estimate the IPC has affirmed. In general, and thankfully, the IPC has been pragmatic in handling fee, fee estimate and fee waiver appeals. This is important given how expensive it can be to process e-mail requests and because the law ought to encourage requesters to work with institutions to tailor their requests.

Windsor Regional Hospital (Re), 2022 CanLII 91591 (ON IPC).

The perils of e-mail attachments and privilege claims

The Court of Appeal for Saskatchewan issued a freedom of information judgement last week that illustrates a good practice point for FOI practitioners: claim privilege over privileged e-mails and their attachments together.

“Record 1” was an e-mail sent to Ministry legal counsel for the purposes of obtaining legal advice about its attachments. Though part of the privileged communication, the Ministry indexed the attachments as “Record 2” and “Record 3.” It claimed that the attachments were privileged, and also exempt pursuant to the Saskatchewan exemption for “information obtained in confidence from other governments.”

By making its exemption claims in this way, the Ministry revealed that it sought legal advice on communications (and information) it received from other governments. Is it any surprise, then, that the Court affirmed a finding that the attachments were not protected by solicitor-client privilege?

While viewing the Court’s finding is understandable, I don’t agree that it is correct. The attachments to (privileged) Record 1 are clearly part of a privileged communication. As part of that communication (and not necessarily on their own), the attachments are privileged. The Ministry ought to have better protected its privilege by indexing Record 1 in its entirety and, if Records 2 and 3 were responsive on their own, indexing each separately.

Saskatchewan (Ministry of Health) v West, 2022 SKCA 18 (CanLII).