SCC Establishes Scope of Access to Information Act

Yesterday, the Supreme Court of Canada issued a decision that deals with the scope of Access to Information Act application, in particular to “ministerial” records.

The Court considered a series of ATIA requests filed in 1999 by a Reform Party staffer, including a requests for former Prime Minister Chretien’s agenda books from the Privy Council Office and the Royal Canadian Mounted Police and requests for records from the former transport and defence ministers.

The bulk of the records in dispute were only in the custody of the PMO, the Office of the Minister of Transport and the Office of the Minister of National Defence, raising a question about whether these offices are subject to the act as “institutions.” None of these political offices are listed in the Act’s schedule of institutions, but their bureaucratic counterparts are – namely, the Privy Council Office, the Department of Transport and the Department of National Defence.

In June 2008, Justice Kelen of the Federal Court, conducted a lengthy analysis of the text and structure of the ATIA and extrinsic factors showing Parliament’s intent. He concluded that, for the purposes of the ATIA, the PMO is not part of the PCO nor are other ministerial offices part of their departments. According to this finding, records within the PMO and ministerial offices can only be subject to the ATIA if they are in the “control” of the bureaucracy. Parts of former Prime Minister Chretien’s agenda book, for example, were admitted to be in the control of the Privy Council Office and the Royal Canadian Mounted Police and subject to the Act. Justice Kelen ordered this information to be disclosed based on a finding that the Prime Minister is an “officer” of the Privy Council Office and, cannot shield information which “relates to the position or functions of the individual” from public access based on the personal information exemption. This last finding was overturned by the Federal Court of Appeal in June 2009.

The Supreme Court unanimously dismissed the Information Commissioner of Canada’s appeal, with Justice Charron writing for eight judges and Justice LeBel writing a concurring judgement on his own. It is therefore clear that the PMO and ministerial offices are not institutions under the ATIA and that the Prime Minister is not an officer of the PCO. The Court also unanimously endorsed the two-part control test articulated by Justice Kelen: records are under the control of a government institution if (1) they relate to a departmental matter and (2) the government institution could reasonably expect to obtain a copy of the document upon request. Regarding the second part of this test, Justice Charron  stressed that the required analysis is contextual and normative:

Under step two, all relevant factors must be considered in order to determine whether the government institution could reasonably expect to obtain a copy upon request. These factors include the substantive content of the record, the circumstances in which it was created, and the legal relationship between the government institution and the record holder. The Commissioner is correct in saying that any expectation to obtain a copy of the record cannot be based on “past practices and prevalent expectations” that bear no relationship on the nature and contents of the record, on the actual legal relationship between the government institution and the record holder, or on practices intended to avoid the application of the Access to Information Act (A.F., at para. 169). The reasonable expectation test is objective. If a senior official of the government institution, based on all relevant factors, reasonably should be able to obtain a copy of the record, the test is made out and the record must be disclosed, unless it is subject to any specific statutory exemption. In applying the test, the word “could” is to be understood accordingly. (emphasis in original)

The split between Justice LeBel and the majority is puzzling. Justice LeBel joins the majority on all findings but takes great issue with its reasoning, which suggests that Parliament intended ministerial records to have special excluded status. Justice LeBel accuses the majority of creating a presumption that such records are not subject to public access, which the majority flatly denies. Given the majority’s denial, Justice LeBel’s split should not have great practical significance.

Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.

NSCA Opines on Waiver of Privilege

Last Friday, the Nova Scotia Court of Appeal issued a judgment in which it affirmed a finding that that the province’s Department of Transportation and Infrastructure Renewal waived privilege by providing a summary of an opinion to citizen who later requested a copy of the full opinion in an FOI request.

The Court rejected the Department’s argument that privilege held by the provincial crown can only be waived by the executive branch. It said that, “a court should look at the authority of a particular government actor and determine whether the advice sought and any waiver ‘follow’ or is ‘coextensive’ with that person’s subject-matter and/or territorial responsibilities.”

The Court also affirmed a finding that the Department official who disclosed the summary did not “voluntarily evince an intention” to waive privilege by making the summary. It did not quarrel with case law the Department put forward for the principle that sharing the conclusions of a legal opinion does not indicate an intention to waive privilege. Rather, the Court relied on the application judge’s finding that the offical had disclosed reasons for the opinion along with the “heart of the opinion.”

Finally, the Court made a comment on waiver of privilege based on the need to promote fairness and consistency. It did not outright reject the Department’s argument that the fairness and consistency basis for waiving privilege applies only in the context of litigation, but suggested (at para. 42)  that fairness issues are engaged when a government actor responds to valid queries from a citizen by reference to a legal opinion.

Nova Scotia (Transportation and Infrastructure Renewal) v. Peach, 2011 NSCA 27 (CanLII).

Alberta Court set to Hear Faculty E-mail Case

On February 22nd, the Alberta Court of Queen’s Bench issued a procedural order dealing with two judicial review applications about a request for e-mail communications between a University of Alberta faculty member and a selection committee of the Social Sciences and Humanities Research Council.

The university brought an application to quash a decision in which the OIPC found that the e-mails sought by the requester were under its custody or control. The Association of Academic Staff of the University of Alberta brought its own application, and also claimed it ought to have been given notice and standing by the OIPC. Over the university and OIPC’s objection, the Court earlier held the the association’s application could proceed based on this very significant procedural ground. On February 22nd the Court held that the two applications should be heard consecutively, with the association’s application proceeding first.

University of Alberta v. Alberta (Information and Privacy Commissioner), 2011
ABQB 100
.

The Pitfalls of Accessing Private Emails

Here’s a link to a Law Times article, reviewing an interesting decision recently released by the B.C. Supreme Court, which awarded damages for improper publication of the plaintiff’s personal emails.  The parties were former spouses who were already engaged in extensive family law litigation — which sets the unfortunate and messy backdrop for the privacy-related litigation.  The defendant husband published a number of defamatory comments about his ex-wife, by way of emails and internet postings.  He included references to private email exchanges of his former spouse, and which he discovered on an old home computer.

The Court concluded that the defendant had “taken his battle with [his ex-wife] over custody and access far outside the ordinary confines of the family court litigation.”  In addition to defaming his ex-wife, the defendant was found to have breached her privacy by publishing the contents of her private emails.  As a result, he was ordered to pay damages of $40,000 for breach of privacy and defamation.

The breach of privacy aspect of the decision flows from B.C.’s Privacy Act, which creates an express statutory recourse for privacy violations.  Other jurisdictions, including Ontario, have not adopted such statutory causes of action for violation of privacy, so courts in those jurisdictions would not necessarily arrive at the same result.  However, some cases have suggested that there may be a common law tort for invasion of privacy, which could form the basis for similar claims.

The decision provides a reminder of the need to be prudent in accessing – and certainly in publishing – emails in respect of which there is a right or an expectation of privacy.

Also a good reminder of the wisdom of avoiding family law litigation!

Court of Appeal quashes Ontario IPC order on “correctional records” exemption

Today, the Ontario Court of Appeal held that the IPC erred in finding that an exemption to the right of access to personal information for “correctional records” did not apply to records related to a period of pre-sentence detention. It quashed the IPC’s order and referred the unresolved issues in the matter back to the IPC to be considered afresh by a new adjudicator.

The decision is about an exemption to the right of access to personal information contained in section 49(e) of FIPPA. It reads:

49.  A head may refuse to disclose to the individual to whom the information relates personal information,

(e) that is a correctional record where the disclosure could reasonably be expected to reveal information supplied in confidence

The Court held the IPC’s distinction between pre- and post-sentence custody was “artificial,” “unworkable” and “unreasonable.” First, it suggested that the IPC gave too much weight to the dictionary definition of “correction” and too little weight to meaning derived from the (broad) definition of “correctional services” in the Ministry of Correctional Services Act. Second, it stressed the narrowness of the section 14 “law enforcement” exemption in rejecting an argument that application of section 49(e) to pre-sentence detention records would cause an inexplicable redundancy in the statute. Finally, the Court suggested the IPC’s interpretation was not “workable” in light of the objective context – that is, it held “that at every stage of the [detention] process, be it at the pre-trial custodial stage or the post-sentence supervisory stage, correctional authorities are liable to be exposed to sensitive information about an inmate that has been provided on a confidential basis.”

The legal finding here is narrow, but the Court does endorse a nice statement from Sullivan and Driedger on the use of dictionary definitions in statutory interpretation: “However, while definitions may provide a useful starting point in interpreting a statutory provision, ‘definitions found in dictionaries say very little about the meaning of a word use in a particular context’: R. Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Toronto: Butterworths, 2002), at p. 27.”

Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2011 ONCA 32.

What happens when institutions withhold records in which they claim solicitor-client privilege from an FOI adjudicator?

The Information and Privacy Commissioner/Ontario issued a university-sector FOI order late last year that dealt with a solicitor-client privilege claim. The outcome turns on the facts, but the order is nonetheless notable because it contains a narrative of how the IPC dealt with the University’s decision to only provide an index of records and supporting affidavit based on its solicitor-client privilege claim. Though not very clear in the order, it appears the IPC asked for a supplemental affidavit (to deal with exclusion claims also made to the withheld records), which led to an agreement to allow the IPC adjudicator to attend at the University to examine the records.

For another window into the process by which the IPC deals with institutions who elect not provide records to review, see this Divisional Court decision from last March.

York University (Re), 2010 CanLII 77658 (ON I.P.C.).