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.

BCCA addresses public right of access to “a record of a question”

On April 13th, the Court of Appeal for British Columbia held that a rubric for an undergraduate admissions test administered by UBC was excluded from British Columbia’s public sector access and privacy act as a “record of a question.” It interpreted this phrase purposely, as encompassing “anything that is inregral to the question such that disclosure would defeat the purpose of the question for future use.”

University of British Columbia v. Lister, 2018 BCCA 139 (CanLII).

IPC decides on request for threat assessment records

On June 30th, the Information and Privacy Commissioner/Ontario issued an interim order regarding a request for records of a school board’s threat assessment process – a request made by the student who was the subject of the assessment.

The IPC held that input given by student witnesses was exempt because its disclosure would constitute an unjustified invasion of privacy and that opinions expressed by members of the board’s threat assessment team were exempt because their disclosure could reasonably be expected to threaten the members’ safety. This is decision rests on the facts before the IPC in this case, though sets out a roadmap for shielding the most sensitive information in a threat assessment file.

The IPC decided to give notice to staff members before deciding whether information related to them (other than opinions) should be released. The matter continues.

Toronto Catholic District School Board (Re), 2017 CanLII 45048 (ON IPC).

Court affirms IPC decision on doctor payments

On June 30th, the Divisional Court affirmed an Information and Privacy Commissioner/Ontario decision that the amounts billed to OHIP by top billing doctors did not constitute the doctors’ personal information.

The Court’s decision is a standard of review decision – i.e., one that accepts the IPC’s decision as reasonable. Notably, the Court was influenced by an argument made by the doctors that (pre-expense) billing amounts do not fairly represent personal income yet could be misconstrued as such by the public. The answer to such arguments is an easy one for most FOI adjudicators and courts: provide an explanation to the public if you think you’ll be misunderstood. The Court didn’t say that in this case, but noted that the doctors’ argument was supportive of the IPC decision that their billing amounts were not revealing enough to be personal information.

Otherwise, the Court made short work of the doctors’ attempts to impugn the IPC’s reasoning and an argument that the IPC procedure gave rise to a reasonable apprehension of bias.

Ontario Medical Association v Ontario (Information and Privacy Commissioner), 2017 ONSC 4090 (CanLII).

FCA speaks on impact of a consent to disclose third-party information under the ATIA

On June 22nd, the Federal Court of Appeal ordered Public Works and Government Services Canada to re-determine an access request because it decided that a third-party’s consent to disclose its commercial information ruled out an exemption claim.

The request was for personnel rates offered to government by a staffing company. The company agreed to a contract clause that the Court held constituted a consent to disclose the information to the public at large.

The Court held that PWGSC erred by treating the clause as an “outright bar” to the company’s reliance on the third-party information exemptions in the Access to Information Act. It held that PWGSC ought to have first determined if any of the third-party exemptions applied and then considered whether or not to disclose the information because of the consent [thereby exercising the discretion granted in section 20(5)].

The decision also includes helpful dicta on the kind of evidence that third-parties must adduce to establish probable economic harm – dicta that supports an argument that the likelihood of harm can oftentimes be inferred from rather basic facts about the competitive context. (Rate or unit price information, in particular, is associated with some rather obvious potential harms.)

Canada (Office of the Information Commissioner) v. Calian Ltd., 2017 FCA 135 (CanLII).

BCCA gives broad protection to e-mail communications with inside counsel

It is inappropriate to closely parse solicitor-client communications in assessing the scope of privilege; the entire “continuum of communications” must be protected. This is the principle articulated in a June 8th decision of the Court of Appeal for British Columbia.

The Court allowed the appeal of a chambers judge order to produce parts of a series of e-mails between a government lawyer and staff at an administrative tribunal. The content ordered to be produced included:

two paragraphs and two sentences of a ten paragraph advisory e-mail in which the chambers judge suggested the lawyer stepped beyond his role as legal advisor and impinged upon the tribunal’s decision-making authority;
a follow-up e-mail that the chambers judge held was not privileged for similar reasons; and
follow-up correspondence between (internal) clients discussing the lawyer’s advice.

The Court held that all this communication was part of the “continuum of communications” that supported the solicitor-client relationship and was therefore privileged. It held there was no basis for a finding that the lawyer usurped the tribunal’s decision making authority, also stating:

In my view, it is in the nature of legal advice that it may influence the decision-making of the client. The purpose of legal advice is normally to advise the client on the best course of action to comply with the relevant law. Advice provided to a statutory decision-maker as to what should be done in order to be legally defensible is still legal advice.

The dispute arose after the above communications were inadvertently disclosed in response to a freedom of information request made by a law firm. The receiving lawyer obtained the communications as part of a disclosure package in which government made a number of exemption claims. She believed government to have waived privileged and used the communications in a proceeding, which led government to assert its privilege claim and claim its disclosure was inadvertent. The Court held there was no waiver. It wasn’t highly critical of the receiving lawyer given these facts, but reminded lawyers of their duty to give notice when they receive communications that are apparently privileged.

British Columbia (Attorney General) v. Lee, 2017 BCCA 219 (CanLII).

Newfoundland court says salary information not accessible to public

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.

SCC deals blow to privacy commissioner powers – privilege reigns supreme

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).

Alberta CA comments on meaning of “personal information”

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).