CanLII law, government and open data conference and hackathon

Those interested in access to government information and open data might like these presentations, given today at the CanLII conference in Ottawa.

I watched two sessions, one by federal information commissioner Suzanne Legault about legislative reform and another by Glen McGregor of the Ottawa Citizen about “data journalism.”

Ms. Legault’s clear focus of concern is on electronic communications, which contain data that is unstructured and extremely difficult to deal with. She calls instant messages “black holes into which information hides or disappears.” Ms. Legault ties this to the duty to record, a topic I’ve touched upon here.

Mr. McGregor relies heavily on access legislation in his (fascinating) work and gives a good reporter’s perspective on database requests – i.e., requests for structured data. He tells a good story about a database request that started with a $100,000 plus fee and ended with a $40 fee.

Ms. Legault is very negative. Mr. McGregor is very optimistic. The juxtaposition is notable.

FC confirms ATIA institutions can make only one access decision

On July 11th, the Federal Court held that an Access to Information Act institution’s access decision was null and void because it had made a prior access decision in response to the same request. It confirmed that institutions can only make one decision, though they may make supplementary disclosure based on an Information Commissioner recommendation (pursuant to section 29) and change their position in responding to a section 44 application to Federal Court.

Porter Airlines Inc v Canada (Attorney General), 2013 FC 780 (CanLII).

The duty to document government decisions, deliberation in private and quality decision-making

In this week’s Information and Privacy Commissioner/Ontario report on the deletion of e-mails by the Ontario government, the IPC decries a “verbal culture” in government and recommends a government “duty to document.” What might this duty entail? Is deliberating about difficult decisions through verbal dialogue really objectionable?

This is not the first time this duty to document has been proposed. In March of this year the British Columbia Office of the Information & Privacy Commissioner also endorsed a duty to document. The BC report includes a good history of efforts made to advance the duty in Canada, efforts that date back to 1994 in the BC Commissioner’s account. The BC Commissioner also notes a federal private member’s bill – Bill C-301 – that features a duty to document.

There are two variants of the duty that we should distinguish from each other – one that requires documentation of “actions, decision and reasons” and another that extends to “advice” and “deliberations.”

The BC Commissioner endorses the narrower version. In 2009, former BC Commissioner DavidLoukidelis argued for a duty to document “actions and decisions and reasons therefor” in a submission to the federal Standing Committee on Access to Information, Privacy and Ethics. The March report from BC contains the same recommendation:

I would reiterate that this requirement need not be an onerous one. The duty to record actions, decisions and reasons are not merely a question of creating records for the purposes of openness and accountability, but also go to good governance, the state of information management and information holdings of government.

Bill C-301 features the broader version. Here’s the language:

2.1 Every officer and employee of a government institution shall create such records as are reasonably necessary to document their decisions, actions, advice, recommendations and deliberations under this Act.

The recent IPC report is ambiguous, and unfortunately, suggests that the BC Commissioner has embraced a duty to document deliberations:

Commissioner Denham notes [in her March report] that a number of Information Commissioners have called for the creation of a legislated duty for institutions to document matters related to deliberations, actions and decisions. Commissioner Denham stated:

Among the reasons for instituting a legislated duty to document include good governance, historical legacy of government decisions, and the protection of privacy and access to information rights. Without a legislated duty to document, government can effectively avoid public scrutiny of the rationale for its actions.

She goes on to note that the legislated duty to document is a critical element of the open government movement and an important element of proactive disclosure.

The underlined statement above is correct but misleading; the BC Commissioner did note that others have endorsed a duty to record deliberations but did not do so herself.

The distinction between the broader and narrower versions of the duty to document is one that should become part of the public dialogue, especially because a duty to record deliberations runs against advice that counsel (including this counsel) regularly give public sector institutions; do not think aloud over e-mail.

Deliberating via e-mail (or text message) is a terrible decision-making practice that has only been invited recently by changes in communication technology. The dialogue invited by such a practice will either be too stilted to be effective or too dangerous because every creative, bona fide and ultimately un-pursued idea will be available in the end to undermine a final decision.

Yes, meetings represent a more private decision-making venue, but that is why they support good decision making. Public sector officials should record the actions flowing from meetings along with all decisions made and their rationale. This is, agreed, a matter of good governance. They should also be given the continued ability to discuss matters in confidence.

Whether a duty to document should encompass “advice” also deserves debate. It may not be objectionable if it is decipherable from a duty to document deliberations. Notably, the degree to which the exemption for “advice and recommendations” under our freedom of information legislation protects the deliberative aspects of decision-making will be addressed in an important Supreme Court of Canada case to be heard this November. The Ontario Commissioner will be joined by four other commissioners in arguing for a narrow interpretation of the exemption so that recorded deliberations will be more accessible to the public. If they succeed, public officials will face greater pressure to engage in verbal dialogue. They should not be castigated for craving a zone of privacy.

FCA opines on breadth of continuum of communications protected by s-c privilege

On April 17th the Federal Court of Appeal issued a judgement that nicely illustrates the scope of the continuum of communications that are protected by solicitor-client privilege. Justice Stratas explained that operational policies that are the product of legal advice are not privileged unless they truly embody the legal advice:

[28] In determining where the protected continuum ends, one good question is whether a communication forms “part of that necessary exchange of information of which the object is the giving of legal advice”: Balabel, supra at page 1048. If so, it is within the protected continuum. Put another way, does the disclosure of the communication have the potential to undercut the purpose behind the privilege – namely, the need for solicitors and their clients to freely and candidly exchange information and advice so that clients can know their true rights and obligations and act upon them?

[29] For example, where a Director of a government department receives legal advice on how certain proceedings should be conducted and the director so instructs those conducting proceedings, the instructions, essentially cribbed from the legal advice, form part of the continuum and are protected: Minister of Community and Social Services v. Cropley 2004 CanLII 11694 (ON SCDC), (2004), 70 O.R. (3d) 680 (Div. Ct.). Disclosing such a communication would undercut the ability of the director to freely and candidly seek legal advice.

[30] In some circumstances, however, the end products of legal advice do not fall within the continuum and are not privileged. For example, many organizations develop document management and document retention policies and circulate them to personnel within the organization. Often these are shaped by the advice of counsel. However, such policies are usually disclosed, without objection, because they do not form part of an exchange of information with the object of giving legal advice. Rather, they are operational in nature and relate to the conduct of the general business of the organization.

[31] Similarly, an organization might receive plenty of legal advice about how to draft a policy against sexual harassment in the workplace. But the operational implementation of that advice – the policy and its circulation to personnel within the organization for the purpose of ensuring the organization functions in an acceptable, professional and business-like manner – is not privileged, except to the extent that the policy communicates the very legal advice given by counsel.

The Court held that a protocol negotiated between the DOJ and RCMP that dealt with the civil production of documents held by the RCMP was not privileged except for its first three paragraphs, which memorialized legal obligations for the benefit of DOJ and RCMP personnel working under the protocol.

Canada (Public Safety and Emergency Preparedness) v Information Commissioner of Canada, 2013 FCA 104 (CanLII).

BC Information and Privacy Commissioner Orders Release of Union Pension Plan Information

The British Columbia Information and Privacy Commissioner (IPC) recently released a decision ordering the provincial pension regulator (Financial Institutions Commission or FICOM) to release certain information about union-run pension plans to the Independent Contractors and Business Association (ICBA), an employers’ association. What is interesting about this case is the basis upon which the unions and trustees of the union pension plans attempted to avoid disclosure; they argued that release of the requested information would harm the business interests of the pension plans.

ICBA requested copies of pension plan filings for 16 pension plans that the trade unions had sponsored. The information requested related to the following issues: the average annual pension paid; the average accrued monthly pension; the surplus or unfunded liability from the previous valuation report; and the surplus or unfunded liability from the current valuation report for each of the pension plans. ICBA has asked for this information to be extracted from the filings made with FICOM, rather than copies of the actual documents which were filed with FICOM. FICOM withheld some of the information under s. 21 of the Freedom of Information and Protection of Privacy Act (FIPPA) on the grounds that disclosure would harm the business interests of the pension plans. FICOM subsequently changed its decision to apply s. 21 of FIPPA and gave the trustees of the 16 pension plans formal notice under FIPPA that it would release the information in full. Trustees of 13 of the 16 pension plans (“Objecting Trustees”) objected to the disclosure of the information about their pension plans and requested that the IPC review the decision of FICOM to release the information.

The pension plans were all registered under the Pension Benefits Standards Act (PBSA) which includes a provision allowing any person to request pension plan documents (generally understood to be the plan texts and amendments, rather than filings regarding funded status). This is unlike most other provinces, which limit access to pension information to employers, members and other beneficiaries of pension plans. (As an aside, British Columbia will be enacting new pension legislation in 2014 and has not carried this broad right of access through to the new legislation.)

In opposition to the disclosure, the unions and Objecting Trustees made the following arguments:

1. The Objecting Trustees asserted that despite being averages, two pieces of requested information “provide personal information about the members of the plans, being the income plan members draw in retirement and the amount Plan members accrue each year before reaching retirement.” The Objecting Trustees referred to this as “sensitive personal information about its members”.

The IPC found that because the information consists of only average amounts, the information at issue was not about identifiable individuals and the information would also not reveal information about identifiable individuals, and therefore did not constitute “personal information”.

2. The Objecting Trustees argued, with the support of FICOM, that they submitted the filings from which the requested information would be obtained in confidence. Both the Objecting Trustees and FICOM took the position that s. 22 of the PBSA did not apply to financial filings, only pension plan documents, and the financial filings were submitted in confidence.

The IPC accepted that the filings were submitted in confidence and also found that just because the filed documents may be available to pension plan members does not make such documents widely or publicly available.

3. The Objecting Trustees and the unions argued that ICBA’s motives were tainted with anti-union malice and that the ICBA’s goal is to promote an “open-shop” workplace. The unions focused on the fact that the ICBA offers retirement savings plans (group RRSPs) that directly compete with the union pension plans. The Objecting Trustees argued that FIPPA is not intended to give a competitive advantage, and that it is relevant that the ICBA is not seeking the information in order to ensure that FICOM is accountable, but to assist its own members in their competition for labour.

With respect to the harm to the pension plans or the unions, the IPC held that the ICBA’s motivations in seeking release of the information cannot be relevant to the outcome of the FIPPA analysis and specifically stated that whether the ICBA was motivated by a legitimate desire to promote government accountability or by its opposition to unions was not a matter which needs to be adjudicated.

4. The Objecting Trustees also argued that the information at issue would be used to “undermine political and economic support for the pension plans” by allowing ICBA to generate a comparison between the pension benefits paid and accrued under the plans and the benefits paid under RRSP arrangements, with a particular focus on the under-funded status of the union pension plans. Similarly, the unions also argued that disclosure would harm their financial interests in collective bargaining on the basis that if an employer was aware of the actual funded status of the pension plan, this would significantly and negatively affect the bargaining position of union with respect to negotiating employer contributions to the pension plan.

FICOM also recognized that the type of information requested “could reasonably be expected to harm significantly the competitive position of the union, and interfere significantly with the negotiating position of the sponsoring union and other union and non-union employers when negotiating work rates since the financial information is key to establishing competitive wage or bid rates and securing business contracts”. However, it decided to release the information because “the date of the data is no longer such that it would place the union sponsors under a competitive disadvantage or interfere with labour relations to the extent that significant harm might reasonably result from the disclosure of the records.”

As to whether the release of the information requested regarding the pension plans would cause harm to the business interests of the pension plans or the unions, the IPC was not persuaded that disclosure of the information at issue could reasonably be expected to cause the pension plans to lose members. The IPC also accepted that the under-funded status of the pension plans was widely and publicly known, as it has been the source of public news and information for some time. The IPC also did not accept that the release of the information would enable ICBA to develop significantly more attractive retirement vehicles than the registered pension plans offered by the unions. Finally, the IPC found that past disclosures of similar information have failed to evidence the harm argued by the Objecting Trustees and the unions and the IPC found that the assertion the pension plans would lose members was merely speculative and was not supported by objective evidence.

As a result, the IPC ordered FICOM to release the requested information to the ICBA.

Judicial review petitition moot after requester loses interest in obtaining access to record

On January 8th, the Supreme Court of British Columbia dismissed a British Columbia Lottery Corporation petition for judicial review because the requester was no longer interested in receiving a copy of the policies and procedures manual at issue. It rejected the BCLC’s argument that the petition should be heard because of the prejudice it would face in dealing with future requests for the same record, stating “If, in the future, some other party seeks production of the Manual, the Commissioner will have to decide the matter based on the law and evidence as it then exists.”

British Columbia Lottery Corporation v Dyson, 2013 BCSC 11 (CanLII).

BC access decision quashed for improper consideration of expert evidence

On January 8th, the Supreme Court of British Columbia quashed an access decision because the Commissioner admitted opinion evidence, but did not consider it to be expert evidence.

The Court differed with the Commissioner in finding that the opinion was “necessary” to resolve an issue about whether the disclosure of sales data, by postal code, could reasonably be expected to cause economic harm to the British Columbia Lottery Corporation. The Commissioner held that the opinion was unnecessary because it went to the very question before her. The Court held that the opinion was necessary because it went to constituent facts such as whether the data had monetary value and could provide grey market competitors with a competitive advantage. Given the opinion met the criteria for admissibility, the Court held the Commissioner erred in law by failing to consider it as expert evidence. It said, “Opinion evidence is only admissible as expert evidence.”

British Columbia Lottery Corporation v Skelton, 2013 BCSC 12 (CanLII).

Docs obtained under access legislation producible in litigation despite any government interest

On January 10th, the New Brunswick Court of Appeal held that various RCMP records obtained by a plaintiff under access legislation and listed in her Schedule B were producible notwithstanding her privilege claim.

The Court, in essence, rejected the plaintiff’s suggestion that the RCMP had a continuing interest in the plaintiff’s use of the documents. It held that the Wagg screening process for dealing with production and use of Crown brief materials did not apply because the plaintiff did not obtain the records from the Crown pursuant to the Stinchcombe duty. Similarly, it held the documents could not be subject to public interest privilege given they had been produced by the RCMP pursuant to an access reqeust. The Court commented:

Ms. Bennett’s claim that “[f]rom a public policy perspective a person should be able to access their personal information which is held by any government department including the RCMP without fear that once they access that information it could be subject to production to a stranger by virtue of litigation” is irreconcilable with the disclosure obligations of a party who launches a civil action where the documents are relevant to the subject-matter of the claim.

The Court also held the records were not subject to litigation privilege, though obtained by the plaintiff’s counsel after the start of litigation.

Bennett v State Farm Fire and Casualty Company, 2013 NBCA 4 (CanLII).

IPC issues strong order limiting access to “constitutency records”

On December 21st the IPC/Ontario issued an order that held that communications about “cycling issues” between two councillors were not under a municipality’s custody or control.

The IPC reached its finding even though the requested records (assuming their existence) would relate to municipal business and be found (at least in part) on the municipality’s information technology system. It explained, in general terms, that records arising exclusively out of a councillor’s political activity – commonly called “constituency records” – are not subject to the right of public access:

Although the distinction between “constituency records” and “city records” is one framework for determining custody or control issues, it does not fully address the activities of municipal councillors as elected representatives or, as described in St. Elizabeth Home Society, above, “legislative officers.” Records held by councillors may well include “constituency records” in the sense of having to do with an issue relating to a constituent. But they may also include communications with persons or organizations, including other councillors, about matters that do not relate specifically to issues in a councillor’s ward and that arise more generally out of a councillor’s activities as an elected representative.

The councillors have described such records as “personal” records but it may also be appropriate to call them “political” records. In any event, it is consistent with the scheme and purposes of the Act, and its provincial equivalent, that such records are not generally subject to access requests. In National Defence, the Court stated that the “policy rationale for excluding the Minister’s office altogether from the definition of “government institution” can be found in the need for a private space to allow for the full and frank discussion of issues” and agreed with the submission that “[i]t is the process of being able to deal with the distinct types of information, including information that involves political considerations, rather than the specific contents of the records” that Parliament sought to protect by not extending the right of access to the Minister’s office.

The policy rationale applies with arguably greater force in the case of councillors who, unlike Ministers, do not have responsibility for a government department and are more like MPP’s or MP’s without a portfolio. A conclusion that political records of councillors (subject to a finding of custody or control on the basis of specific facts) are not covered by the Act does not detract from the goals of the Act. A finding that the city, as an institution covered by the Act, is not synonymous with its elected representatives, is consistent with the nature and structure of the political process. In arriving at this result, I acknowledge that there is also a public interest in the activities of elected representatives, and my determinations do not affect other transparency or accountability mechanisms available with respect to those activities.

Toronto (City) (Re), 2012 CanLII 81955 (ON IPC).

Councillor records not subject to MFIPPA

The exclusion of “constituency records” from the right of public access in Ontario is not new but has garnered recent attention. On October 30th, the IPC held that a request for councillor records “discussing or tracking public opinion on specified issues” was not a request for records under the custody or control of a municipality. Adjudicator Liang held that, although the request was for records relating to matters within the municipality’s mandate, given the municipality had not authorized the named councillors to consider or track public opinion, the request targeted constituency records – records made by the elected officials exclusively in their political capacity.

Toronto (City) (Re), 2012 CanLII 69026 (ON IPC).