Court affirms order to disclose salaries based on public interest override

On October 30th, the Divisional Court affirmed a 2010 order by the IPC/Ontario that required a police board to publicly disclose the specific salary entitlements of a police chief and two deputy chiefs.

The request dealt with base salary entitlements for various years (as granted and recorded in employment contracts). Total salary to be paid to the affected employees exceeded the $100,000 threshold for annual publication under the Public Sector Salary Disclosure Act. The requested disclosure, therefore, would reveal the amount of performance pay received by the affected employees.

The IPC held that disclosure of the affected employees’ salary entitlements would constitute an unjustified invasion of personal privacy based on a provision that shields an employee’s “income” from public disclosure. However, it also issued a broadly-framed finding that disclosure of the “senior level” employees’ personal information was nonetheless warranted based on the “public interest override.” The Divisional Court affirmed the latter finding as reasonable.

York (Police Services Board) v (Ontario) Information and Privacy Commissioner, 2012 ONSC 6175 (CanLII).

Nova Scotia judge deals with FOI requests, responsiveness and “mixed” e-mails

On October 22nd, Justice Scanlan of the Nova Scotia Supreme Court said the following about the responsiveness of e-mails in disposing of an FOI appeal:

There are a couple of issues that I wish to address further. It appears the initial review officer may have taken the position that the Respondent could not withhold documents on the basis that they were irrelevant. The Respondent referred to those materials as “not applicable”. According to the Respondent the Review Officer suggested there was no recognized exemption under FOIPOP legislation for “non applicable” materials. Any such ruling would defy commonsense. What possible relevance would it be to the Appellant if someone commented in a document that their grandmother had a wart removed from her nose. (Not that any such comment was made in the redacted materials). With e-mail communications the author on a number of occasions mixed personal or non relevant communications with information which was properly disclosed. The personal, non relevant, information is not something to which the Appellant is entitled to access. There are some things in records, such as e-mail, which are clearly irrelevant and should not be disclosed. The types of documents that fall inthe “not applicable” category include, for example notes from unrelated investigations or proceedings. The Appellant has no right to see those types of documents just because they are in an officer’s notebook. As I have noted, to suggest non relevant documents are to be produced on a FOIPOP application defies common sense and the scope of the legislation.

Under a strict analysis the “responsiveness” of an entire record is assessed against the wording of an FOI request. Justice Scanlan supports a more purposive approach (which reflects common practice) in which parts of records that are unresponsive may be redacted.

Stevens v. Nova Scotia (Labour ), 2012 NSSC 367 (CanLII).

Alberta court issues important e-FOI decisions – faculty e-mails not in custody or control

The Alberta Court of Queen’s Bench issued a pair of judgements about access to faculty e-mails on April 23rd, ultimately deciding that the Alberta OIPC erred in finding that faculty member e-mails relating to participation on a Social Sciences and Humanities Research Council of Canada committee were in the custody or control of the University of Alberta.

Here are the four points of significance.

First, the Court held that the standard of review for custody or control decisions is reasonableness based on the strong presumption established by the Supreme Court of Canada last December in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association. This is a change, albeit a predictable one in light of Alberta Teachers’ Association. Despite the outcome in this case, custody or control decisions will generally be harder to challenge on judicial review than in the past.

Second, the Court held that the Association of Academic Staff of the University of Alberta did not have a right to notice of standing in the OPIC’s hearing as an affected party or as a matter of fairness. It held that the AASUA interest in the precedential effect of the OIPC’s finding did not give it an interest in the request under appeal sufficient to justify a right to notice and standing.

Third, the Court held that the OIPC erred in finding that the records at issue were under the university’s custody or control.

In part, the Court’s reasoning highlights the growing importance of assessing the purpose of access to information legislation in deciding custody or control issues. It held the OPIC erred by failing to recognize that the faculty member’s e-mails related to a grant funding process in which the university had no role. They therefore shed no light on the university’s own operation in furtherance of the statutory aims. Rather, the records at issue shed much more light on another public institution’s operations, something the Court said the OIPC also ought to have considered.

The Court’s reasoning also suggests that standard technical processes used in the management of business e-mail systems will not govern whether e-mails are in the custody or control of a public institution. It held that the OIPC erred by inferring too much from the routine backup of e-mails and the right to monitor. The Court said, “It was unreasonable to focus on the general computer use policy, rather than considering the particular records in question.”

Finally, the Court declined to address a bold argument by the AASUA that all records produced by faculty members in the course of participating in external committee work and in the context of their internal research and other academic work are not subject to a university’s custody or control. The Court said, “Academic freedom may be one relevant factor in considering whether a university has custody or control of records, but until the Commissioner considers that question in a hearing that raises the issue at first instance, this Court need not address it here.”

University of Alberta v. Alberta (Information and Privacy Commissioner), 2012 ABQB 247 (CanLII) (standard of review, custody or control).

Association of Academic Staff of the University of Alberta v University of Alberta, 2012 ABQB 248 (CanLII) (notice and standing).

Federal Court Upholds Pension Regulator’s Refusal to Order Disclosure of Member Information

On July 21, 2011, the Federal Court released a decision in a long running pension fight. The applicants in Buschau v. Rogers Communications Inc., 2011 FC 911 have been pursuing access to the surplus in their pension plan since 1995. This decision has been to every level of Court, and sometimes twice. Most recently, the applicants requested that the Federal Superintendent of Financial Institutions (the “Superintendent”) order that Rogers be required to disclose the following information:

the employment and pension data of any new members it proposes to add to the Pension Plan…
the information Rogers has, or should have, as to which members of the Pension Plan it has offered a “buy-out”, the value of such “buy-out” and the members’ acceptance or rejection of such offers…

The applicants purported to require this information to be able to identify potential new members of the Pension Plan to inform them of Rogers’ past actions allegedly taken in bad faith (notwithstanding existing decisions indicating that Rogers has been acting in compliance with legislative requirements) and to determine what happened to any applicable surplus relating to members who accepted a buy-out.

The Superintendent refused to order the disclosure. The Superintendent determined that the Pension Benefits Standards Act, 1985 (“PBSA”) (the legislation governing the Pension Plan), specifically section 28 and the associated Regulations, set out Rogers’ disclosure requirements and the requested information did not fall within the legislative requirement. The Superintendent also indicated that Rogers’ was obliged to comply with the provisions of the Personal Information Protection and Electronic Documents Act. The applicants sought judicial review of the Superintendent’s decision.

The Federal Court agreed with the Superintendent’s determination and found that she decision was reasonable. Of particular note for plan administrators facing disclosure requests from members, the Federal Court stated the following:

[100] I find that the Superintendent’s decision in this regard was reasonable. Section 28 of the PBSA sets out the members’ “Rights to Information”. It also indicates that the plan members are entitled to certain information as set out in the Pension Benefits Standards Regulations, 1985, SOR/87-19 [Regulations]. Neither section 28 of the PBSA nor the associated Regulations mandate that the respondent, in the current circumstances, is obligated to disclose the type of information that the applicants are seeking.

This decision is one of the first examining the scope of a plan administrator’s disclosure obligations under the Federal pension legislation. Plan administrators will likely take comfort in the finding that their disclosure obligations are limited to the specified documents (such as plan texts, amendments, trust agreements, valuation reports, financial statements) and there is no obligation to disclose information outside of the scope of the PBSA requirements if requested to do so by other members.

IPC/Ontario Continues to Show Pragmatism in Dealing with e-FOI Issues

The Information and Privacy Commissioner/Ontario has thus far demonstrated a good deal of pragmatism in exercising its power to review the quality of FIPPA and MFIPPA institutions’ e-mail searches. On June 30th, for example, it issued an order in which a requester claimed that an institution ought to have retained an independent IT expert to search and retrieve responsive e-mails, including “erased e-mails.” Despite the requester’s perception of conflict, IPC Adjudicator Morrow upheld the institution’s search as “coherent, systematic and responsible” in the circumstances.

This demonstrates that the IPC will defer to a reasonable search process and, absent special circumstances, is not likely to order the use of an external “e-discovery vendor.” Note that the IPC has also endorsed the choice to use vendors, a choice which allows institutions to pass through 100% of the reasonable costs of search and retrieval (which is not the case for internal searches). For an example of a case in which the use of an external IT vendor led to a valid yet very high yet reasonable fee estimate see Order MO-2154 .

IPC Order MO-2634, 2011 CanLII 43653 (ON IPC).

Another Procedural Order Issued in Faculty E-Mail Case

On June 21st the Alberta Court of Queen’s Bench issued a procedural order related to two significant judicial review applications. The matter that underlies both applications is about an FOI 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 claimed it ought to have been given notice and standing by the OIPC. Over the university and OIPC’s objection, the Court allowed the association’s application to proceed based on the association’s limited but very significant procedural ground. Later, in February of this year, the Court held that the two applications should be heard consecutively, with the association’s application proceeding first.

In this most recent order, the Court allowed allowed the association to intervene in the university’s judicial review application, which unlike the association’s own application, challenges the substantive basis for the OIPC’s custody or control finding. The association argued that it could provide input on “the true nature of emails within the context of the relationship between the UofA and the staff association.” The Court ordered that the association’s submissions would be limited to the interpretation of the faculty agreement and “its expertise and insight as to the University-academic employment relationship, the effect academic freedom has on that relationship and documents created by faculty members, and the unique nature of committee work.”

University of Alberta v. Alberta (Information and Privacy Commissioner), 2011 ABQB 389 (CanLII).

Federal Court Says it has no Jurisdiction to Hear Application About ATIA Request Administration

On June 8th, the Federal Court held that it did not have jurisdiction to hear an application that alleged the Attorney General of Canada gave notice of an unreasonable time limit extension in responding to an Access to Information Act request. The Court held it had no jurisdiction in advance of an actual or deemed refusal and distinguished a case in which the Crown had conceded that an unreasonable extension amounted to a deemed refusal.

Public Service Alliance of Canada v. Canada (Attorney General), 2011 FC 649 (CanLII).

Divisional Court Says Homeowner Privacy Concern Required Notice to Homeowners

On May 12th, the Divisional Court issued a brief judgment by which it sent an FOI matter back to the Information and Privacy Commissioner/Ontario for a re-hearing after notice is given to affected parties.

The records at issue contain toxicity test results that are associated with “homeowner’s addresses or location information.” The Court held that this information is arguably the personal information of homeowners, who should have been given notice of hearing by the IPC as a matter of procedural fairness, in particular given the information was collected by the Ministry of the Environment based on an assurance of confidentiality.

Northstar Aerospace v. Ontario (Information and Privacy Commissioner), 2011 ONSC 2956 (CanLII).

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).