2008-2009 New cases

Two of the cases we became involved in this year are:

a case centering on a large number of requests that remained unanswered after the 30-day time limit; and
a case before the Supreme Court of Canada involving the constitutionality of a section of Ontario’s freedom of information legislation.

Other cases in which we were not involved, but which we consider noteworthy are:

a case focusing on whether paragraph 2(b) of the Canadian Charter of Rights and Freedoms encompasses a general right of access; and
a case in Ontario highlighting the fact that, in responding to access requests, institutions are expected to use technology as an enabler, not as an excuse to evade the public’s right to know.

Large volume of requests

Statham v. The President of the Canadian Broadcasting Corporation and the Information Commissioner of Canada, T-782-08

Summary

David J. Statham, on behalf of Michel Drapeau Law Office, filed an application with the Federal Court for judicial review of the Canadian Broadcasting Corporation’s (CBC) failure to provide access to records in response to approximately 284 requests submitted to the CBC in the fall of 2007. The Information Commissioner has become a party to this proceeding.

Background

The CBC became subject to the Access to Information Act on September 1, 2007. Between September 5, 2007, and December 12, 2007, Mr. Statham submitted approximately 400 access requests to the CBC. The CBC did not respond to the vast majority of the requests within 30 days of receiving them, as the Act requires. Nor did the CBC claim any time extensions for these requests within that time, although it was allowed to do so under the Act.

Mr. Statham subsequently submitted 389 complaints to the Information Commissioner about the CBC’s alleged “deemed refusal” to disclose the requested records. (Requests are deemed to be refused when institutions do not respond to them within 30 days.)

The Information Commissioner initiated an investigation of these complaints, concluding that they were well founded. The Commissioner went on to recommend that the CBC respond to all of the outstanding requests on or before April 1, 2009. The CBC committed to meeting that deadline.

Upon receiving the results of the investigation, Mr. Statham applied to the Federal Court for a judicial review of the CBC’s actions. Mr. Statham is asking the court to order the CBC to, among other things, disclose any records covered by requests to which the CBC has yet to respond at the time of the hearing. The Information Commissioner sought leave to intervene in the case, noting that Mr. Statham had filed some erroneous evidence. The court granted the Commissioner party status and ordered that this evidence be corrected.

Issues

The court has made clear that the case is to be limited to information requests that remain outstanding at the time of the hearing.

Future action

As of April 1, 2009, the CBC had responded to all but 32 access requests. The court case is to be heard on June 3, 2009.

In the meantime, the Information Commissioner has self-initiated refusal complaints against the CBC for the remaining 32 requests.

Freedom of expression

The Criminal Lawyers’ Association v. Ontario (Public Safety and Security), Docket 32172, Supreme Court of Canada, heard December 11, 2008, judgment reserved. On appeal from the Ontario Court of Appeal, 207 ONCA 392.

Summary

This case involves an appeal by the Ontario government of an Ontario Court of Appeal decision. The appeal court had held that a provision in Ontario’s Freedom of Information and Protection of Privacy Act was unconstitutional for unjustifiably infringing upon the right to freedom of expression set out in paragraph 2(b) of the Canadian Charter of Rights and Freedoms, because it did not extend a public interest override to certain types of information exempted under that Act.

Background

The Criminal Lawyers’ Association had requested records from the Ontario Ministry of Public Safety and Security, including a police report on an investigation into the conduct of a police force and Crown attorneys in the prosecution of a murder case that had been stayed because the accused’s Charter rights had been breached. The Ministry had refused to disclose the requested records, invoking the solicitor-client privilege and law enforcement exemptions the provincial Act contains.

The majority of the appeal court had decided that a section of the Act was unconstitutional because it unjustifiably infringed the freedom of expression guaranteed by the Canadian Charter of Rights and Freedoms. The Ontario Act includes a section providing that certain exemptions may not be applied to refuse disclosure of records when a compelling public interest in disclosure clearly outweighs the purpose of the exemption. However, this override does not include the solicitor-client privilege and law enforcement exemptions. The way the law is drafted means that once the Ontario Information and Privacy Commissioner or a court finds that the exemptions apply to records requested, they cannot order their disclosure, regardless of how compelling the public interest in disclosure might be.

The Supreme Court of Canada agreed to hear the appeal. The Information Commissioner successfully sought leave to intervene in the case.

Issues

There are two principal issues in this case: whether a provision in Ontario’s freedom of information legislation infringes upon the right to freedom of expression as guaranteed by paragraph 2(b) of the Charter; and whether, because the public interest override does not extend to information exempted on the grounds of solicitor-client privilege or law enforcement, the provision offends the constitutional principle of democracy. If the court were to find such an infringement, it would then need to determine whether this infringement could be demonstrably justified in a free and democratic society, as section 1 of the Charter allows.

Both the solicitor-client privilege and law enforcement exemptions are discretionary. Consequently, the Information Commissioner also raised the issue of whether the Ministry had failed to properly exercise its discretion when invoking these exemptions without showing any evidence that it had considered whether factors such as the public interest and the guarantee of freedom of expression would favour disclosure of the records in this case.

Future action

The hearing took place on December 11, 2008. The Supreme Court of Canada has yet to issue its decision.

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General right of access

Attaran v. Minister of Foreign Affairs, 2009 FC 339 (T-2257-07), April 2, 2009 (Justice Kelen)

Summary

A requester challenged the Minister of Foreign Affairs and International Trade’s decision to refuse access to requested records. The court largely upheld the Minister’s decision not to disclose portions claimed to be exempted under the Access to Information Act.

Background

Mr. Attaran made a request to the Department of Foreign Affairs and International Trade (DFAIT) for copies of its annual reports on human rights in Afghanistan for the years 2002 to 2006.

DFAIT released portions of the reports but withheld other portions, invoking several of the Act’s exemptions.

Mr. Attaran complained to the Information Commissioner, who then investigated. As a result of this investigation, DFAIT disclosed additional portions of the reports, withdrawing its claim of some exemptions. With this, the Information Commissioner was satisfied that Mr. Attaran had received all of the information to which he was entitled under the Act and reported this to him and to the Minister.

Upon receiving the Information Commissioner’s report, Mr. Attaran brought a case before the Federal Court. The Canadian Journalists for Free Expression intervened in the case in support of Mr. Attaran’s challenge.

Issues

The issue at the centre of the case was whether general information about torture could be withheld on the grounds that its release would reasonably be expected to injure international affairs or defence.

The court considered a number of other issues, the most notable of which were questions surrounding the application and impact of the guarantee of freedom of expression found in the Canadian Charter of Rights and Freedoms on the interpretation and application of the Access to Information Act.

Reasons

The court was satisfied that the Minister was justified when refusing to disclose all but two of the extracts of information at issue, although they were characterized as “general information about torture.”

The court distinguished between general information about torture that had been publicly reported by other countries and comments set out in DFAIT reports about Canada’s allies and Afghan officials, with an intended audience of Canadian officials.

Nonetheless, the court made an exception for two extracts that had in fact appeared in a front-page article in The Globe and Mail and been publicly disclosed in another court case. Noting that this public dissemination had occurred without evidence of repercussions or reaction against Canada, the court concluded that the disclosure of these two extracts could not reasonably be expected to cause probable harm of injury and so qualify to be withheld under subsection 15(1).

The court then considered the constitutional arguments raised in the case, holding that the freedom of expression enshrined in the Charter does not encompass a general right to access any information government institutions hold. There was therefore no need for the court to consider whether limits on the right of access are “demonstrably justified” under section 1 of the Charter.

As to whether the Minister was required to bear in mind values linked to the constitutional right of freedom of expression when deciding whether to exempt information under subsection 15(1), the court held that the Act had to be interpreted in accordance with the intent of Parliament; Charter values should be applied only when the statute is ambiguous. Since the court did not view subsection 15(1) to be ambiguous, it determined that Charter values did not need to be applied and that the Minister did not have to consider them when exercising his discretion under subsection 15(1).

The court ordered the Minister to disclose the two extracts that had been previously publicly disclosed.

Future action

To date, neither party has filed a notice of appeal of the Federal Court’s ruling.

Technical expertise

Toronto Police Services Board v. Ontario (Information & Privacy Commissioner), 2009 ONCA 20 (Ont. C.A.), January 13, 2009 (Justices Moldaver, Sharpe and Blair)

Summary

The Ontario Court of Appeal decided that the definition of record under a provincial access to information law was to be read broadly to include a requirement that government institutions develop new algorithms to modify their existing computer software if doing so would involve technical expertise normally used by the institution.

Background

A journalist, James Rankin, from the Toronto Star, made two access requests under Ontario’s Municipal Freedom of Information and Protection of Privacy Act to the Toronto Police Service Board. When making these requests, he asked to receive the records in a different format from that in which the information was stored. To respond to the requests, the organization would have had to design an algorithm capable of extracting and manipulating the information in two electronic databases and re-formatting it.

The organization had the technical expertise to do this; however, it refused the requests for various reasons, including that the information sought was not a “record” under the municipal law, since new software would be required to produce the information in the format requested.

The federal Access to Information Act includes a very similar provision to the one interpreted under the Ontario legislation in this case.

Issues

The issue in this case was the scope of the term record and, more particularly, the scope of the subsection stating that records include those capable of being produced from machine-readable records.

Reasons

Bearing in mind the purpose of the legislation, the appeal court adopted a liberal interpretation of the definition of record, stating that it was intended that in some circumstances “…new computer programs will have to be developed, using the institution’s available technical expertise and existing software, to produce a record from a machine readable record… .”

The court rejected the interpretation proposed by the Toronto Police Services Board, which had been accepted by the Divisional Court, explaining that the interpretation

…provides government institutions with the ability to evade the public’s right of access to information by eliminating all access to electronic information where its production would require the development of software that is within the technical expertise normally used by the institution. On the Divisional Court’s interpretation, access would be determined based upon the coincidence of whether the software was already in use, regardless of how easy or inexpensive it would be to develop.

A general principle that emerges from the court’s decision is that access to information legislation must be interpreted in a manner that maximizes the public’s right of access to electronically recorded information:

A contextual and purposive analysis of s. 2(1)(b) must also take into account the prevalence of computers in our society and their use by government institutions as the primary means by which records are kept and information is stored. This technological reality tells against an interpretation of s. 2(1)(b) that would minimize rather than maximize the public’s right of access to electronically recorded information (para. 48).

Future action

Neither the Toronto Police Services Board nor the Ontario Information and Privacy Commissioner has appealed this decision to the Supreme Court of Canada.

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