On December 22, the Newfoundland and Labrador Supreme Court (Trial Division ) held that the amount of taxable income earned by a Newfoundland public sector employee is not accessible under the Newfoundland Access to Information and Protection of Privacy Act.
The analysis ought to have turned exclusively on the deeming provision embodied in section 40(2)(f), which reads as follows:
A disclosure of personal information is not an unreasonable invasion of a third-party’s privacy where… (f) the information is about a third party’s position, functions or remuneration as an officer, employee or member of the public body or as a member of a Minister’s staff
This “deeming provision” is intended to foster transparency regarding public sector employment and compensation. The word “remuneration” is used in contrast to the phrase “salary range” that appears in other provinces’ access and privacy statutes – an indication that the Newfoundland legislature intended information about the specific salary earned by every public sector employee to be accessible to the public. This intent is consistent with a recommendation made by a legislative committee, which stated “The Committee concludes it is unfair to single out employees at any particular income level, and recommends that salaries and benefits of all employees a public bodies be subject to disclosure.” The language of the statute and the legislative context therefore strongly suggest that the Newfoundland legislature chose against a “sunshine list” model of public sector salary disclosure that requires proactive disclosure of salaries over a threshold amount and, instead, created a broad right of access to specific salary information upon request.
The Court failed to grasp this text and context and accepted an argument that the above deeming provision does not apply because does not specify that it precludes the disclosure of remuneration information together with an individual’s name. It ought to have accepted the Government’s and the Privacy Commissioner’s argument that such specification is unnecessary given the function of the deeming provision. This decision should be appealed.
NLTA v Newfoundland and Labrador English School District, 2016 NLTD(G) 211.
Yesterday the Supreme Court of Canada issued a decision in which it held that the Information and Privacy Commissioner of Alberta does not have the power to compel the production of documents over which solicitor-client privilege is claimed in conducting an access inquiry under Alberta’s public sector access and privacy statute.
The case – which arose out of an access request made to the University of Calgary – is a sequel to the 2008 Blood Tribe Department of Health case in which the Supreme Court of Canada made a similar finding regarding the Office of the Privacy Commissioner of Canada’s powers under the Personal Information Protection and Electronic Documents Act. Blood Tribe established that solicitor-client privilege cannot be abrogated by statutory language that is any less than “clear, explicit and unequivocal.” PIPEDA, however, is a unique statute. It establishes the OPC as an ombudsperson and not in adjudicator, and the power to produce that the OPC relied upon in Blood Tribe was drafted in the most general terms. Accordingly, Blood Tribe left a question about the powers of other privacy commissioners under more traditional statutes.
That question is now answered.
The Alberta Freedom of Information and Protection of Privacy Act gives the Alberta Commissioner the power to order production despite “any privilege of the law of evidence.” This phrase appears in a number of other public sector access and privacy statutes as does the similar phrase “any privilege under the law of evidence.” Ten privacy and access authorities therefore intervened in the University of Calgary case to argue in support of their mandates.
Nonetheless, a five judge majority held that the language of Alberta FIPPA is not clear enough to override solicitor-client privilege. The majority took pains to root its analysis in statutory interpretation principles, but its finding is best understood as reflecting a near absolute dedication to the supremacy of solicitor-client privilege. The majority also viewed the Alberta Commissioner as something less than an impartial adjudicator, alluding to the tradition by which information commissioners often act as parties in reviews of their own orders.
We must be careful in drawing broad conclusions about a finding under a particular access and privacy statute, but this decision will have a ripple effect. Commissioners across Canada may adjust their protocols for dealing with solicitor-client privilege claims and may lobby for statutory amendments. University of Calgary is a good news decision for institutions given the burden of arguing solicitor-client privilege claims on a record-by-record basis.
Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 (CanLII).
Whether information is “personal information” – information about an identifiable individual – depends on the context. The Court of Appeal of Alberta issued an illustrative judgement on April 14th. It held that a request for information about a person’s property was, in the context, a request for personal information. The Court explained:
In general terms, there is some universality to the conclusion in Leon’s Furniture that personal information has to be essentially “about a person”, and not “about an object”, even though most objects or properties have some relationship with persons. As the adjudicator recognized, this concept underlies the definitions in both the FOIPP Act and the Personal Information Protection Act. It was, however, reasonable for the adjudicator to observe that the line between the two is imprecise. Where the information related to property, but also had a “personal dimension”, it might sometimes properly be characterized as “personal information”. In this case, the essence of the request was for complaints and opinions expressed about Ms. McCloskey. The adjudicator’s conclusion (at paras. 49-51) that this type of request was “personal”, relating directly as it did to the conduct of the citizen, was one that was available on the facts and the law.
The requester wanted information about her property because she was looking for complaints related to her actions. The request was therefore for the requester’s personal information. Note the Court’s use of the word “sometimes”: context matters.
Edmonton (City) v Alberta (Information and Privacy Commissioner), 2016 ABCA 110 (CanLII).
I finally got around to reading Access Denied – the British Columbia OIPC’s October 22nd bombshell of an investigation report on the processing of freedom of information requests.
You’ve likely heard about the OIPC’s finding that a Ministerial Assistant in the Ministry of Transportation and Infrastructure commandeered an executive assistant’s workstation to wilfully “triple delete” e-mails responsive to an FOI request. While shocking, you may be just as interested in the OIPC’s less headline-catching recommendation that government re-configure its e-mail system so e-mails cannot be deleted by users before they are captured in monthly backups “for investigative and legal purposes.” The OIPC doesn’t back this recommendation with many details, but it seems to treat backups as a data source with an all-too-routine reason to access.
You may also be interested in the OIPC’s recommendation to create a legislative duty to document. I’ve wrote about the duty to document in some detail in this June 2013 post.
In Ontario, amendments to FIPPA and MFIPPA relating to the preservation of records come into force on January 1st. Read more here.
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).
On April 2nd, the Court of Appeal of Alberta held that the Alberta Freedom of Information and protection of Privacy Act does not give the Alberta OIPC the power to compel the production of records over which a public body has asserted solicitor-client privilege.
The Court considered the power granted by the following provision:
Despite any other enactment or any privilege of the law of evidence, a public body must produce to the Commissioner within 10 days any record or a copy of any record required under subsection … (2).
It held that this language was not clear, unequivocal and ambiguous enough to overcome the presumption against abrogation of solicitor-client privilege. The ratio, at paragraph 48, is very clear and simple: “This [authorization of infringement] requires specific reference to solicitor-client privilege.”
Also of significance, the Court held that the chambers judge (below) erred by construing provision according to “modern approach,” which it said cannot be reconciled with the rule of strict construction established by the Supreme Court of Canada in Blood Tribe. The Court allowed the appeal and ordered the OIPC to pay the institution’s costs.
University of Calgary v JR, 2015 ABCA 118.
The IPC/Ontario issued an order on December 17th in which it noted an inconsistency in its treatment of OHIP billing information as personal information. It said:
As the parties have noted, a number of IPC orders have considered the issue of whether OHIP billings reveal personal information of doctors. In these orders, this office has concluded that OHIP billings that can be connected with specific doctors are their personal information. For example, in Order P-1502, the Commissioner found that payment to a physician for services rendered in connection with the prescription of home oxygen services was a “financial transaction” within the meaning of section 2(1)(b) of the Act, and therefore qualified as personal information. I followed this above approach in Order PO-3200.
Interestingly, the above approach can be contrasted with the treatment of other professionals whose billing information has been ordered disclosed under the Act. In Order PO-3207, I found that information about legal fees paid to a lawyer by a hospital was not exempt from disclosure under the personal privacy exemption, as it was not personal information. In Orders MO-2363 and MO-2927, among others, this office found that the details of fee arrangements between government institutions and professional consultants did not qualify as the personal information of the consultants.
Though making this note, it was unnecessary for the IPC to resolve the inconsistency or depart from its prior decisions to make the order. The information at issue related to payments made to group practice. The IPC held that, in the circumstances, the information did not reveal anything about an individual physician.
Ministry of Health and Long-Term Care (Re), 2014 CanLII 77316 (ON IPC).