Category: Uncategorized

Blood Tribe released by SCC

The much anticipated Blood Tribe decision has just been released by the Supreme Court of Canada, which dismissed the federal Privacy Commissioner’s appeal from the Federal Court of Appeal. Here’s a summary of the FCA decision. Looking forward to reading the case later today and will post a summary.

Case Report – Forensic inspection ordered but party trusted to deal with results

In a oral award issued on July 11th, Mr. Justice Elliot Myers of the BCSC ordered the forensic examination of a computer hard drive, declined to order the appointment of independent counsel and suggested the forensic expert was precluded from communicating the results of his analysis to the parties to whom records were produced.

The hard drive was in the custody of the plaintiffs and involved records relating to a fatal helicopter crash. The parties agreed that it contained relevant records, some of which were deleted prior to litigation and needed to be recovered. This caused the plaintiffs to hire a forensic computer specialist to retrieve and produce records to the defendants, but when the defendants asked for information about the methodology used by the specialist the plaintiffs refused. They claimed that providing the requested explanation would involve a substantial expense and, for whatever the reason, neither the defendants nor the plaintiffs invited the Court to assess or order the obvious mid-ground solution – simply ordering the plaintiffs to provide the information originally requested by the defendants.

In making his order (which entailed having the defendants’ forensic computer specialist administer agreed-upon search terms), Myers J. distinguished between the need for an order to give assurance that a search is done effectively and the need for an order to protect against bad faith conduct.

In ordering an inspection by an expert selected by the defendant’s, he said:

The real issue here is that the defendants cannot verify the quality or the thoroughness of the hard drive search because Mr. Camp has not provided them with the necessary information. Mr. Camp can only rely on the advice of Mr. Kojima that the hard drive analysis was done using the appropriate methodology; he did not presume to have the technical expertise to effectively supervise that exercise. Therefore, the defendants cannot rely on the obligation of counsel to ensure that all relevant documents are listed. The defendants are left with having to accept as a matter of blind faith that Mr. Kojima retrieved all relevant documents. That takes on a particular edge in this case because the former owner of the hard drive, Mr. Honour, is deceased. This is not a case where the owner of the hard drive can be examined for discovery as to the location of documents or discrepancies in the document list.

And declining to order the appointment of independent counsel:

With respect to the first rationale for [the mechanism of appointing independent counsel], there has been no allegation of improper deletion of documents (as opposed to deletion of documents in the ordinary course) or a skirting of the court rules. In that sense this application is not in the nature of an Anton Piller order.

The second rationale for the mechanism — concern with respect to the defendants seeing privileged or irrelevant documents — is a valid one. But this can be met by the forensic expert forwarding the results to Mr. Camp, who would then deal with the retrieved documents in the ordinary course.

Finally, Myers J. held that it was implicit in the order granted that the defendant’s forensic would not communicate the results of his search to the defendants and suggested he would deal with any questions about the validity of the expert’s process if necessary post disclosure.

Chadwick v. Canada (Attorney-General), [2008] B.C.J. No. 1225 (S.C.) (QL).

Information Roundup – 6 July 2008

Good morning.  Not many posts lately.  I’ve been busy, but have still been trolling for cases and haven’t found too much of interest.  Maybe this whole information and privacy thing is a fad;)

Here’s what I’ve read recently that you might enjoy.

  • Neil Richards, “Intellectual Privacy.” Professor Richards argues that the United States’ First Amendment should protect “intellectual privacy” – “the ability to develop ideas and beliefs away from the unwanted gaze or interference of others.”  He shows that the First Amendment (with its protection of speech and the press) has for the most part been seen to be at odds with privacy protection, but that the core values underlying the First Amendment are not in conflict privacy protection when one considers the value of intellectual privacy.  This value, he further argues, is more threatened in recent times given the recording of our thought processes in databases owned by entities like Google.  He makes a simple, reasonable argument that resonates. (SSRN)
  • Matt Richel, “What’s Obscene?  Google Could Have an Answer.” This is a news story about a criminal case in Florida and defence counsel’s plan to introduce evidence from Google Trends in support of an argument on “contemporary community standards.” Apparently people in Pensacola search the term “orgy” more than “apple pie” but less than “surfing.”  Go figure.  (New York Times)
  • Anthony Lin, “Malpractice Suit Against Kay Scholer Alleges Discovery Foul-Ups.”  A news story.  The title speaks for itself.  (Law.com)
  • Jordan Furlong, “Core competence:  6 new skills now required of lawyers.” This has nothing to do with information and privacy, but I think it’s quite smart.  (Law21)

Nicest weekend for weather this year here in Toronto.  I’m looking forward to a good paddle today, though am sure that dealing with the gong show at the beach will have me yearning for the solitude of winter on the water, 6mm mittens or not.

Enjoy!

Case Report – No basis for questioning preservation steps

In a June 16th order, Master MacLeod had the opportunity to consider whether a party should be compelled to answer, in the ordinary course of oral discovery, questions about its efforts to preserve evidence. He said:

Q. 823 was originally a question about producing pharmacy records. Apparently when the request was made, the pharmacy only had computer records going back to 2001. There was a follow up question as to when the request was made. Q. 945 asked for a microbiological report which is not available. The question is asked as to whether the document did exist and if it was destroyed, when that occurred and when did the plaintiffs first take steps to preserve the evidence? These follow up questions, if they are relevant, are relevant only to an argument that an adverse inference at trial should be drawn if it appears the plaintiffs did not take adequate steps to preserve available evidence once litigation was contemplated or when it first became apparent that this evidence might be relevant. There are certainly circumstances in which compliance with litigation holds or compliance with undertakings may make it relevant if a party has been so slow in complying with its obligations as to give rise to a spoliation inference or sanctions for what in the United States is sometimes described as “purposeful sluggishness”. There is no evidence before me to suggest this is the case here and I decline to exercise my discretion by ordering this question to be answered.

Andersen v. St. Jude Medical Inc., [2008] O.J. 2452 (S.C.J.) (QL).

Information Roundup – 30 June 2008

Happy Canada Day!  We had a great weekend on Wolfe Island.  There’s no better place than Kingston in the summer, and Canada Day across the harbour with family and friends is also an ideal.  

Here are some things I’ve read lately that you may find interesting:

  • Drake Bennett, “Stopping Google.”  This is a very good article that identifies the range of policy issues raised by Google’s amazing success and power.  Hat tip to Professor Frank Pasquale (who’s quoted in the article) and the Concurring Opinions blog.
  • Orin Kerr, “Updating the Foreign Intelligence Surveillance Act.”  The most recent University of Chicago Law Review has published 13 essays from a surveillance symposium it recently ran.  The essays are very technical and policy-oriented and not about general information and privacy concepts (which was what I was hoping for).  They are interesting though, and as an uninformed outsider attempting to understand the debate about domestic surveillance, this essay provided a nice and fairly accessible overview.  This is no slight to Professor Kerr, who also makes a solid argument on FISA reform.
  • Ryder Gilliand, “Fair Comment and Freedom of Expression in Simpson v. Mair.”  This is Mr. Gilliand’s comment on Friday’s Supreme Court of Canada decision on the fair comment defence.  

In Simpson, the majority not only laid down the law on fair comment, it gave an odd teaser on “the public interest defence of responsible journalism,” presently queued up to be heard by the Court next January in Cusson v. Quon. Though Binnie J. specifically marked this part of his majority decision as obiter, he also showed the majority’s openess to recognizing a special defence for those who publish news and suggested the real debate should be about its nature and scope:  

While the legal position in both Australia and New Zealand was influenced by statutory provisions that have no direct counterpart in Canada, the Canadian law of qualified privilege will necessarily evolve in ways that are consistent with Charter values.  At issue will be both the scope of the qualified privilege (Reynolds is broader) and whether the burden of proof of responsible journalism should lie on the defendant (Reynolds) or irresponsible journalism on the plaintiff  (Lange v. Atkinson).

Enjoy!

Case Report – Federal Court says ministerial offices beyond the scope of ATIA requests

You may have heard about the Federal Court’s June 19th ruling that the Prime Minister’s Office (the “PMO”) and other ministerial offices are not “institutions” whose records are subject to the Access to Information Act. Here is a breakdown of the rather complex judgement.

The Court considered a series of ATIA requests filed in 1999 by a Reform Party staffer, including a requests for former Prime Minister’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. The Court held that the act did not apply to these records by virtue of these three offices’ status as “institutions.” None are listed in the Act’s schedule of institutions, but their bureaucratic counterparts are – namely, the Privy Council Office (the “PCO”), the Department of Transport (the “DOT”) and the Departments of National Defence (the “DND”). In a very lengthy analysis of the text and structure of the Act and extrinsic factors showing Parliament’s intent, the Court 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.

Despite this finding, the Court nonetheless considered whether responsive records in the custody of the PMO and ministerial offices were in the control of the PMO and the two Departments. Before assessing the various classes of records at issue, the Court again engaged in a lengthy analysis of the meaning of “control.” It said control means that an institution has some power of direction or command over a document, even if it is only on a ‘partial’ basis, a ‘transient’ basis, or a ‘de facto’ basis.”

Based on this meaning, the Court held most of the records in the custody of the PCO and the two Departments were not under the control of a government institution and thereby beyond the right of public access. The exception: records listing the items to be addressed at meetings between the former Minister of Transport, his exempt staff as well as the Deputy Minister and Chief of the Defence Staff (the two of whom hold offices within the DND) and some miscellaneous records shared amongst the same group for similar purposes. The Court framed the meeting agendas as used by both by the Minister’s own office and the DND and said that a DND officer, “would most likely be given another copy of the agenda from the Minister’s office if he was missing his copy.”

As it does not appear that any exemptions were claimed on these DND records, this left the Court with a decision to make about the scope of access to copies of about 400 pages from the former Prime Minister’s agenda book which were in the custody and control of the PCO and the RCMP. The Court rejected a claim that the records were excluded from the ATIA as Cabinet confidences, held that the Canada Evidence Act certificate by which the Clerk of the PCO designated the records as Cabinet confidences was invalid and held that the exemption for “advice and recommendations” did not apply. These findings were driven by the fact that the entries in the agenda did not address the content of the Prime Minister’s meetings nor were they apparently sensitive in any other way. The Court did hold some personal information in the records to be exempt. Notably, this included the names of individuals who met with Mr. Chretien including (as the Court specified) business people, fund-raisers and lobbyists regardless of the capacity in which they were engaged.

Canada (Information Commissioner) v. Canada (Minister of National Defence), 2008 FC 766.

Information Roundup – 22 June 2008

Hope you all enjoyed the summer solstice and/or International Surfing Day. Here’s some things I’ve read lately that you might like.

  • Peter Lake, “Still Waiting:  The Slow Evolution of the Law in Light of the Ongoing Student Suicide Crisis.” Professor Lake’s latest comment on post-secondary education institutions’ duty of care.  Although he argues that administrators would benefit from development in the duty of care case law, he also suggests that Virginia Tech and its three major reports make the need for action-oriented policy clear.  The idea:  questioning the duty to help individual students at risk can be paralyzing (and the case law doesn’t help), but the link between suicide and the risk of violence perpetrated against others brings a far more clear duty to bear. 
  • Anita Kumar, “Judge Agrees to Va. Tech Payout.”  Some related news on last week’s Virginia Tech settlement approval for claims brought by families of 28 of the 32 people killed in April 2007.  The settlement has a public interest component that allows the families to meet with Governor and university and other state officials. (Washington Post)
  • Paul Ohm, “The Fourth Amendment Right to Delete.”  Professor Ohm argues that “collect/copy now, analyze later” law enforcement tactics involve the “seizure” of evidence.  Interesting comments on the nature of the proprietary interest in information:  “Cases like Hicks view dispossession as a simple matter of rivalry:  if you have my locked box, I can’t have it too.  But in the age of nonrivalrous, perfect digital copying, this view of dispossession seems tautological and unhelpful.” (Harvard Law Review Forum)
  • Clifford Davidson, “The Wrath of Quon?”  A Proskauer Rose comment on Quon v. Arch Wireless, in which a California court recently held that a communications company violated the Stored Communications Act for allowing an employer to do a non-consensual audit of employee text messages. There is a mention of “operational reality” overriding a clear language in a computer use policy, but Mr. Davidson says nothing in the case appears to restrict employers who give clear notice to employees in order to limit their expectation of privacy.  Includes a link to the decision.  (Proskauer Rose)

Enjoy!

Case Report – US Supreme Court revives FOI request precluded as res judicata

On June 12th, the Supreme Court of the United States unanimously held that an FOI claim filed by an acquaintance of a person who was unsuccessful in previously filing the same claim should not be barred.

The first requester asked the Federal Aviation Administration for technical documents related to a model of vintage airplane he owned and was seeking to restore. The FAA denied the request based on the FOIA’s third-party trade secrets exemption. The first requester eventually filed a lawsuit that was heard by the Tenth Circuit Court of Appeals. The Tenth Circuit upheld the lower court’s finding that the third-party restored its right to protect the records (despite an earlier waiver) by objecting after the FOI request had been filed. It did, however, significantly qualify its decision by noting that the first requester had not challenged whether it was possible to “restore” trade-secret status once waived and, if so, whether the timing of the third-party’s objection enabled such restoration.

The second requester then filed the same request and eventually filed suit, but was barred in the first instance and on appeal based on a finding that he was “virtually represented” by the first requester. The virtual representation doctrine expands the traditional exceptions (in American federal law) to the rule that one must be a party to be barred by a prior judgement. It had not previously been considered by the Supreme Court.

The Supreme Court rejected the virtual representation doctrine but remanded the matter for a determination as to whether the second requester filed suit as the first requester’s agent. This may have seemed a possibility to the Court because the first requester had a greater interest in the records (he owned the aircraft, the second requester did not) and had asked the second requester to help him restore the aircraft and because both requesters used the same legal counsel. There was no determination of the question of agency on the record, however, so the Court let the agency issue live with a note that “courts should be cautious about finding preclusion on this basis.”

The Supreme Court’s decision does not turn on the specific nature of a public right of access, though it did reject an argument that the second requester had a reduced interest in controlling the first reqeuster’s litigation because a duty to disclose is “owed the public generally.” It said, that notwithstanding the general public interest in access to government records, a grant of relief under the FOIA is personal.

Taylor v. Sturgell, 553 U.S. 2008.

Information Roundup – 16 June 2008

Crazy weather here.  Nearly got fried on Sunday.  Getting stuck out on a paddleboard as a lightening storm rolls in is pretty terrifying eh.  Nothing you can do but paddle like mad for shore and have faith.  It’s warm though, and I’m loving some long paddles.  If this is hard for you to understand check out this picture and you might get it.  Pure magic.

Here’s what I’ve read lately that may be of interest.

Enjoy!