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.

In dispute over custodianship of medical files, balance favours established clinic

On May 22nd the Ontario Superior Court of Justice ordered medical files to be returned to a clinic by a departing doctor who claimed she had an independent practice and was the legal custodian of the files.

Justice Perell dismissed the defendant’s argument that a corporation could not be a “health information custodian” under the Personal Health Information Protection Act and held that the plaintiff clinic had made out a strong prima facie case that it had such status. His suggestion that the defendant was also a health information custodian could best be understood as a function of the qualified burden of proof on an interlocutory motion given, under PHIPA, there can be only one custodian of a record of personal health information.

Justice Perell’s balance of convenience analysis is noteworthy. He said the following about the public interest in providing patients with access to their personal health information pending final resolution of the dispute:

In considering the balance of convenience, it is appropriate to consider the interests of the patients whose health records have been removed from a health clinic to the home of a health care practitioner. In my opinion, a patient will have better access to his or her health records and the health care practitioner who will treat the patient during Dr. Simon’s semi-retirement will have better access to the health records if the records are at professional offices with normal business hours and full-time staff.

A plaintiff in a similar situation could similarly attempt to make a case for return of records based on a claim to relatively superior security measures, though the stakes of pursuing such an approach would be high.

Note that the plaintiff consented to a term permitting the defendant doctor to make copies of any file relating to a patient she had treated. This is a sensible thing to offer in a dispute over custodianship, but again, is inconsistent with the single custodian rule.

1615540 Ontario Inc. carrying on business as Healing Hands Message v Simon, 2013 ONSC 2986 (CanLII).

BCCA denies access to patient information to further class proceeding

Yesterday, the Court of Appeal for British Columbia vacated an order that required non-party physicians to provide a class action plaintiff with the contact information of patients who were potential class members. It rendered a principled judgement on physician-patient confidentiality, stating:

Laudable as the plaintiff’s intention may be to seek redress for persons who may have a claim to compensation for deleterious consequences from this medical treatment, such generous intention does not justify, in my view, the invasion of privacy that is inherent in dipping into the physician-patient relationship to discover the names, addresses, and contact information of persons who received this treatment. Each patient is entitled to maintenance of the confidentiality implicit in his or her attendance in a physician’s examining room and protection of his or her privacy on a personal matter, absent serious concerns relating to health or safety, or express legislative provisions compelling release of the information in the public interest. In my view, the judge erred in principle by elevating the purposes of the Class Proceedings Act and the search for legal redress above the fundamental principle of confidentiality that adheres, for the benefit of the community, to the physician-patient relationship.

The Court distinguished other orders in which contact information was provided to class action plaintiffs as not involving physician-patient confidentiality.

Logan v Hong, 2013 BCCA 249.

The scope of solicitor-client privilege, advice versus information and Trillium Motor World

Here’s a handout for an internal (Hicks Morley) talk I’m doing tomorrow on solicitor-privilege, “the continuum of communications” concept and the Ontario Superior Court of Justice’s recent decision in Trillium Motor World.

In Trillium Motor World the Court held that legal information (versus advice) conveyed from a firm to its client was not privileged. In short, my conclusion is that the decision is an outlier driven by a unique context and that in more ordinary circumstances a court will not (and should not) parse the subject matter of communications related to an ongoing retainer so delicately.

Yesterday’s post on Justice Stratas’s recent Canada (Public Safety and Emergency Preparedness) decision is another good one to read on this topic.

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).

“Drug abuse” diagnoses justifies random testing requirement

Last November 29th, Arbitrator Hall held that an employer could impose random drug testing on a employee in a safety-sensitive position who admitted to regular cannabis use outside of the workplace and who had been diagnosed as a “drug abuser” but not “drug dependent.” He explained:

…a closer review of the authorities reveals that arbitrators have distinguished between “use”, “abuse”, and “dependence/addiction”. Once the distinction between use and abuse in particular is recognized, the Union’s comparison to the casual consumption of alcohol away from the workplace is no longer compelling. The distinction was made in Hamilton Street Railway in these terms: “Use does not equate to abuse and it does not follow that because the grievor may use infrequently he will one day arrive at work impaired” (para. 33; emphasis added).

Although he upheld the random testing requirement, Arbitrator Hall ordered the employer to reduce testing frequency to quarterly from monthly and to limit testing to cannabis.

Spectra Energy Transmission – West and Communications, Energy and Paperworkers Union of Canada, Local 686b (29 November 2012, Hall).

Role of investigators does not support solicitor-privilege claim

On May 15th, Justice Ramsay of the Ontario Superior Court of Justice denied a claim that an investigation report was subject to solicitor-client privilege. He explained the difference between the kind of third party conduit whose role is essential to the solicitor-client relationship and an ordinary fact finder:

If the third party’s retainer extends to a function which is essential to the existence or operation of the client-solicitor relationship, then the privilege should cover any communications which are in furtherance of that function and which meet the criteria for client-solicitor privilege. Examples given in Chrusz are psychiatrists who examine the client and accountants who examine the client’s books (¶116).

On the other hand (¶22), “[i]f the third party is authorized only to gather information from outside sources and pass it on to the solicitor so that the solicitor might advise the client, or if the third party is retained to act on legal instructions from the solicitor (presumably given after the client has instructed the solicitor), the third party’s function is not essential to the maintenance or operation of the client-solicitor relationship and should not be protected.”

Both of the paragraph references above are to the Ontario Court of Appeal decision in Chrusz.

Weinmann Electric Ltd v. Niagara Falls Bridge Commission, 2013 ONSC 2805 (CanLII).

Government’s collection of census information does not breach Charter

On May 2nd, the Court of Appeal for Saskatchewan held that the federal government does not breach section 8 of the Charter by collecting census information under threat of prosecution.

The Court held that the collection does not interfere with a reasonable expectation of privacy given the context in which the (admittedly sensitive) information is collected – a context that includes statutory assurances of limited use and confidentiality. It explained:

Thus , the question is not whether Ms. Finley had an expectation of privacy or even a reasonable expectation of privacy in dictionary terms. The question must be linked to the overall context of the case. In this case, the question must be cast in these terms: whether a reasonable person would expect to have privacy in the information requested by the 2006 Long Form Census, which the government wishes to collect exclusively for statistical purposes to aid it in implementing sound and effective public policy, with no criminal or quasi – criminal repercussions flowing from the disclosure of such information, and with the specific information collected being ultimately generalized and “delinked” from the individuals being required to so disclose. The trial judge answered this critical question negatively and the summary conviction appeal court judge found no error of law, mixed fact and law or fact in her conclusion.

The Court did not address an argument by the Crown that section 8 is not engaged by merely asking someone to provide information, an argument rejected in each of the two lower court decisions that led to the appeal.

R v Finlay, 2013 SKCA 47.

Information Roundup – Volume 2013, Edition #4

Here is list of good links recent information and privacy developments:

I’ve been posting less than I’d like to lately have a BIG pile of cases to catch up on. My apologies. I’ve been training very hard and getting ready for an event that I’ve always dreamed of doing and have finally committed to.The “M2O” is a 32 mile paddle race from Molokai to Oahu across the Ka’iwi Channel – the “channel of bones.” I’ll do it solo on a prone paddle board (paddling with my hands). The distance is not so bad, but the channel conditions are going to make the race very hard. My only goals is to finish with my dignity.

I’ve spent the last four months building some base and learning from paddlers in the community. At this point I’m extremely excited and feeling fit and positive, but the hard work is just starting. Forgive me for posting a bit about my progress here. I love the writing about the developing law, but the developing law is going to be competing for my attention for the next while!

Aloha,

Dan

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Ontario master questions state of jurisprudence on OSR privilege

On January 22nd, Master Muir of the Ontario Superior Court of Justice held that answers to discovery questions that would disclose information contained in the Ontario Student Records of non-party students should not be answered based on the statutory privilege in section 266 of the Education Act.

Master Muir held that he was bound by Pandremenos v Riverdale Collegiate Institute, [1998] OJ No 1480 (GD), but not without expressly stating his disagreement with an interpretation of section 266 that precludes access to information contained in an OSR (as opposed to an OSR itself). He said:

In my view, the relevant portions of the Act make it clear that it is the OSR file itself that is privileged and not necessarily all of the information that may find its way into the OSR. Section 266(2) of the Act creates the privilege. It provides that “a record [that is, the OSR] is privileged” [emphasis added]. It says nothing about the specific information that section 265(1)(d) of the Act requires the principal to collect for inclusion in the OSR. This is to be contrasted with sections 266(9) and 266(10) of the Act. Section 266(9) states that “no person shall be required in any trial or other proceeding to give evidence in respect of the content of a record” [emphasis added]. Section 266(10) provides that “every person shall preserve secrecy in respect of the content of a record” [emphasis added]. It is noteworthy that the word “content” is absent from section 266(2).

In my view, if the legislature had intended to extend the privilege to any piece of information that may end up in an OSR (such as something as basic as a student’s address or date of birth, for example) it would have used much broader language that would clearly extend the privilege to the contents and to all information that may be found in an OSR. In my view, the interpretation suggested by Northmount could lead to an absurd situation where certain basic information about an individual could never be disclosed or introduced into evidence in a civil proceeding simply because he or she happens to be a student to whom the Act applies and the information in question can also be found in his or her OSR.

Master Muir noted other decisions by the Court in which discovery was allowed because the information at issue was not required to be contained in the OSR by the Ministry’s guideline. Master Muir said these decisions are distinguishable from cases in which the information at issue is required to be contained in the OSR as in Pandremenos and the matter before him.

Robinson v Northmount School for Boys, 2013 ONSC 1028 (CanLII).