Info Source Bulletin 40A - Federal Court Decision Summaries

Standard of review

The standard of review for section 44 of the ATIA reviews is correctness (see Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 53).

With respect to the matter of personal information, the Court must engage in a two-step process. Firstly, the Court determines, on a correctness standard, whether the information meets the definition; secondly, the Court examines the reasonableness of any discretionary decision to disclose personal information. In the present case, Parks Canada has not engaged in this exercise of discretion.

Whether paragraphs 20(1)(b), (c) or (d) of the ATIA apply to the records in issue.

Paragraph 20(1)(b) of the ATIA

Paragraph 20(1)(b) creates a class-based exemption. Brewster must objectively satisfy all three criteria of the provision – the type of information (commercial); its quality and treatment (confidential); and its provenance (supplied to a government institution by a third party).

The type of information covered by the provision typically includes costs, profits, pricing strategies, manufacturing processes, business or operational methods. Administrative details such as page numbering, dates, location of information and e-mails scheduling meetings or phone calls are not the type of information contemplated by section 20(1)(b).

Concrete evidence establishing the confidential nature of the information is required. Brewster has not demonstrated a reasonable expectation of confidentiality from Parks Canada nor has it shown that the company itself treated or even attempted to treat the information as confidential.

Lastly, Brewster failed to address, much less demonstrate, how the treatment of the information in issue would “foster its relationship with government for the public’s benefit”. The claim for exemption from disclosure on this ground has not been made out.

Paragraph 20(1)(c) of the ATIA

Paragraph 20(1)(c) is “harm-based”. The test is a “reasonable expectation of probable harm”. A review of the information at issue does not support a claim for harm. The bulk of the information deals with meeting scheduling, logistics about the environmental assessment and the development of a goat-tracking system in the Park. There was none of the usual type of information frequently seen in these cases showing a link between the information at issue, its importance and how that information could be used to harm Brewster or prejudice it in some way.

Paragraph 20(1)(d) of the ATIA

There is no evidence that the disclosure of the records would interfere with actual contractual negotiations or other business negotiations. Mere assertions of fears are insufficient.

Whether section 19 of the ATIA applies to the records in issue.

Section 19 of the ATIA is a mandatory class-based exemption subject to several exceptions. The Information Commissioner identified a number of instances where personal information (names, e-mail addresses, etc.) in the disputed records would be disclosed. The Court agreed with the Information Commissioner and ordered that the records be reviewed and the personal information identified by the Information Commissioner be redacted before the records are released.

The decision is available on the Federal Court Decisions website at Brewster Inc. v. Canada (Environment), 2016 FC 339.

Whether the parts of the discussion paper which remain at issue are subject to solicitor-client privilege.

The Court agreed with the parties that a standard of correctness applies to the issue of whether the solicitor-client privilege exemption applies.

In respect of one portion of the discussion paper, which constitutes policy advice stemming from legal opinions received by ESDC, the Court concluded that disclosing this portion of the record would provide clues about privileged communications and was therefore privileged. Similarly, two sentences that give details about the questions that were submitted to legal counsel were found to be privileged because disclosing these sentences would reveal the legal advice that was sought out and provided.

However, the Court concluded that disclosing the summary portion, which merely contains policy advice including the primary author’s suggestion about which option to follow, would not reveal any privileged information or give any clues on such information and was therefore not privileged. Likewise, where ESDC failed to show how a description of a policy option was anything more than the primary author’s personal opinion, the description was not privileged.

Portions of the discussion paper that did not contain or reveal any clues about privileged material and where the same information is already publicly available in other portions of the record and in ESDC’s Canada Pension Plan Credit Splitting Guide for the Legal Profession were also ordered disclosed.

Finally, where ESDC failed to establish that the content of a disputed portion of the record was based on a legal opinion, the portion of the record was found not to be subject to solicitor-client privilege. Although the expression “the Minister’s defence, in brief, would be…” might suggest that this comment was based on legal advice, the last sentence in this passage shows that the entire segment was in fact policy advice.

Whether the Minister reasonably exercised his discretion in refusing to disclose certain portions of the record.

Section 23 of the ATIA provides for a discretionary right of refusal to disclose privileged information. The Court rejected the Information Commissioner’s argument, based on the decision in Leahy v. Canada (Citizenship & Immigration), 2012 FCA 227 (paragraphs 138 to 145), that the jurisprudence mandates a decision-maker to weigh specific factors. Unlike in Leahy, where the Federal Court of Appeal held there was a paucity of evidence in the record, in the case at hand, the record is sufficient to allow the Court to be satisfied that the Minister exercised his discretion in a reasonable manner.

The decision is available on the Federal Court Decisions website at Canada (Information Commissioner) v. Canada (Employment and Social Development), 2016 FC 36.

Legal framework

Qualification

Before discussing the standards and burdens of proof applicable at the various stages, the Court noted that it was important to clarify that the qualification and exercise of discretion would be reviewed by the Court in consideration of all the information and the roles played by the parties. The Court had before it all the evidence used for the decisions made by the decision-maker, including the position taken by the Commissioner and the reasons that, in her opinion, justified a disclosure of the requested confidential information (RCI).

In these circumstances, where the Commissioner participated in both the hearing in camera and the public hearing, in order to benefit from the paragraph 15(1)(c) exemption of the ATIA, the decision-maker had to establish that it was reasonable to determine that the information in question could reasonably be expected to cause probable harm to the detection, prevention or suppression of subversive or hostile activities. For this purpose, relevant factors were the presumption in favour of disclosure; the details given in the exercise of qualification pursuant to section 15 of the ATIA had to be precise and detailed; and the requirement for the alleged injury had to be not abstract or speculative.

Exercise of discretion

Since the Commissioner had access to all the relevant information and participated in all the proceedings, the burden rested first on the Commissioner to establish that the decision-maker’s exercise of discretion was unreasonable. If the Commissioner succeeded in discharging that burden, the burden then shifted to the decision-maker, who had to establish that he did exercise his discretion in a reasonable manner. However, this standard had to take into consideration the objectives of the ATIA, which the decision-maker also had to take into account in exercising his discretion.

When evaluating whether the decision-maker’s exercise of discretion was reasonable for the purposes of the judicial review of a decision made under the ATIA, the Court must consider the reasons given by the decision-maker, and the transparency and intelligibility within the decision-making process in respect of the facts. In addition, when the Commissioner is party to the proceeding, the Court must consider her arguments and suggestions, and analyze how the decision-maker discussed and took them into account. When making his decision, the decision-maker had to establish that he was familiar with access requests, that he understood the arguments in favour of disclosure and that he carefully considered these arguments in light of the objectives of the ATIA.

The Court reiterated that the decision-maker could not simply state that he considered all the relevant elements. He had to concretely establish how he considered them. In the circumstances, the decision-maker had to show concern not only for non-disclosure, but also for disclosure, in full and transparent consideration of the arguments for disclosure. He had to weigh these arguments in light of the objectives of the ATIA. This requires a serious intellectual effort that allows observers to conclude that the arguments for disclosure were truly considered.

Whether the decision-maker reasonably qualified the information as falling under subsection 15(1) of the ATIA, thus allowing him to rely on the exemptions to the general rule that information be disclosed.

In his reasons, the decision-maker had to establish that disclosure of the RCI could reasonably be expected to be injurious to the detection, prevention or suppression of subversive or hostile activities. The harm to be demonstrated has to be probable based on the facts and can be neither hypothetical nor speculative. The fact remains, however, that the potential injury does not have to occur upon disclosure, as having to establish this would be impossible.

Transport Canada’s Passenger Protect Program (PPP) is one of the controls that protects passengers travelling to and from Canada by plane. The one-of-a-kind SPL is part of a number of essential controls to ensure the safety of passengers, crews and aircraft. As constituted, the SPL cannot be compared to other lists of travellers prohibited from travelling by plane. Neither the U.S. No Fly List nor the U.N.’s list use the same selection criteria as the SPL. Under the PPP, the SPL serves a unique and specific purpose that cannot be replaced by the other lists prohibiting certain people from travelling by plane.

It is clear that the decision-maker’s main ground for refusing to disclose the RCI was loss of the SPL’s deterrent effect. According to the decision-maker, this loss met the requirement for injury for the information to qualify under paragraph 15(1)(c) of the ATIA. The decision-maker explained in detail that disclosing the RCI would give informed observers information that they could then use for their own ends. In the modern global context, where the threat of violent plots is significant, information and its collection are very important. Certain groups are known to use and analyze information and to plan their future actions, at least in part, based on such information. Paragraph 15(1)(c) of the ATIA specifically protects information that could be useful to those who wish to carry out hostile or subversive activities, such as terrorist acts, including hijacking, in or against Canada or foreign states.

In his June 2013 letter, the decision-maker explained in a reasonable manner that publicizing the RCI would provide informed observers with highly useful information. Such a statement is neither speculative nor hypothetical: disclosing the RCI, namely, the total number of people and the number of Canadians on the SPL would provide informed observers with new data they could then analyze and use for their own ends. For such observers, as the record now stands, this is relevant, useful information. On this basis, the Court concluded that disclosing the RCI would create a reasonable expectation of probable harm; it is self-evident how and why injury would result. In the interest of Canadians, particularly those travelling by air, it would be wrong to create this probable harm.

To reach this conclusion, the judge also considered the Commissioner’s arguments concerning the paragraph 15(1)(c) exemption. The Court could not accept these arguments for the reasons mentioned above. It noted, however, that its conclusion regarding the qualification was drawn on the basis of the facts unique to the matter at bar. Were these facts to change in the future, its finding might also change.

The Court explained that this outcome to the qualification stage was not determinative of the subsequent stage, the analysis of whether the decision-maker exercised his discretion reasonably.

Whether the Minister’s representative exercised his discretion to disclose the information following the Commissioner’s recommendations reasonably.

With respect to whether the decision-maker’s discretion was exercised reasonably, the Commissioner, who has full knowledge of the case, had the burden of establishing that the decision-maker’s decision was unreasonable. Fully informed, the Commissioner could make any arguments she deemed appropriate.

The Court concluded that the discretion was not exercised reasonably. There was nothing or almost nothing in the way of evidence or even reasons for some of the arguments put forward by the decision-maker. In addition, in the reasons he provided for his decision, he did not address the arguments raised by the applicants.

For example, the Commissioner suggested that the statement by the Minister of Transport that there were between 500 and 2,000 people on the list could already be seen as a disclosure or that the decision not to disclose the RCI could have been made to hide some embarrassment. The decision-maker addressed the Minister’s statement, but did so incompletely and without really responding to the applicants’ arguments. The Court stated that, in this respect and in the circumstances, the exercise of discretion blatantly lacked transparency and reasonableness.

The argument referring to possible harm to international relations between Canada and its allies seemed to have been made to impress the reader. In addition, the grounds given by the decision-maker were based on the premise that the RCI is unknown to U.S. authorities, a claim not satisfied by the evidence, quite the contrary. The grounds given in this regard were not supported by the evidence and did not withstand review.

Three reasons therefore rendered the exercise of discretion unreasonable: very few reasons dealt with the passage of time; the decision-maker refused to seriously address the statement of the Minister of Transport, and lastly, there was a complete lack of evidence to support the argument that there would be a negative impact on international relations with the United States and other foreign states.

For these reasons, the matter was referred back to another decision-maker to exercise the necessary discretion and arrive at an informed conclusion. Lacking the jurisdiction to request a redetermination within a given period, the Court expressed the wish that the matter be reconsidered quickly (within 90 days). The requests were made in 2010, almost six years ago.

The decision is available on the Federal Court Decisions website at Canada (Information Commissioner) v. Canada (Transport), 2016 FC 448.

What is the applicable standard of review?

The parties do not dispute the applicable standard of review: “The question whether the claimed exemptions apply is reviewed on the basis of correctness. The question of whether the discretion was properly exercised is reviewed on the basis of reasonableness” (Canada (Information Commissioner) v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 FCA 104 at para. 18). When the Court reviews whether information falls within an exemption under the ATIA, it does so de novo but a de novo review does not apply to the exercise of discretion question.

Whether the application for judicial review is premature.

TPA argued that the Commissioner prematurely brought this application for judicial review as the Commissioner did not pursue any investigation of TPA’s reliance on the paragraph 21(1)(b) exemption. The Commissioner argues that TPA cannot rely on the exemption under 21(1)(b) because TPA failed to claim it prior to the issuance of the Commissioners subsection 37(1) recommendation on September 12, 2013.

Nowhere in the ATIA does it state that an investigation is complete upon providing the head of the government institution the Commissioner’s recommendation under subsection 37(1) of the ATIA but before providing the requester the final report under subsection 37(2) of the ATIA. The case law also supports the proposition that the ATIA lacks a firm rule on when a government institution can no longer claim a new discretionary exemption and by implication when the OIC’s investigation into a complaint is complete. When there is a dispute, as is the case here, the Court will consider all of the circumstances of the particular case, both subjective and objective.

While the Court was not prepared to conclude that an investigation will never be complete prior to reporting to the complainant under subsection 37(2) of the ATIA, the circumstances in this case, including the conduct of the OIC, led it to conclude that the Commissioner did not view or treat the investigation as complete when delivering the subsection 37(1) recommendation to TPA. Here, the Commissioner’s subsection 37(1) recommendation did not specify whether TPA could claim new exemptions at that time; the OIC did not signal to the requester that the investigation was complete, but rather the opposite, advising that the opportunity remains to “negotiate further with TPA”; and in its final report completed many months after TPA identified the paragraph 21(1)(b) exemption in reply to the subsection 37(1) recommendation, the OIC does not take the position this exemption was not available to TPA in October 2013, concluding instead that TPA “has not met its burden of justifying the application of paragraph 21(1)(b)…”.

As a result, the OIC investigation was ongoing, albeit substantially concluded, in September 2013 and as such TPA remained in a position to rely on a previously unidentified exemption to justify non-disclosure of the Minutes. However, TPA’s ability and decision to claim the paragraph 21(1)(b) exemption in October 2103 did not trigger an obligation upon the Commissioner to reopen or recommence what was in effect a substantially completed investigation. It was open to the Commissioner to conclude that further formal investigation was not required. It was also appropriate for the Commissioner to rely on the failure of TPA to advance any meaningful justification in claiming the paragraph 21(1)(b) exemption. To impose an obligation upon the Commissioner to relaunch an investigation in the circumstances would open the door to substantially delayed investigations should government institutions identify exemptions on a piecemeal basis.

The prerequisites for a judicial review application under section 41 of the ATIA, modified for the section 42 context, were all satisfied prior to the Commissioner initiating this judicial review application:

1. the Requester was ‘refused access’ to a requested record in TPA’s control;
2. the Requester made a complaint to the OIC;
3. the OIC carried out an investigation of the Requester’s complaint;
4. the Requester received a report of the OIC under subsection 37(2) of the Act; and
5. the Requester provided consent to the Commissioner to bring this judicial review application.

The application was therefore not premature.

Whether the exemptions Toronto Port Authority (TPA) has claimed under paragraphs 18(a), 18(b) and/or 21(1)(b) of the ATIA apply.

Paragraphs 18(a) and (b) of the ATIA

TPA submits that paragraphs 18(a) and (b) of the ATIA are applicable to portions of the redacted minutes that contain valuable information regarding TPA’s signing authority, capital expenditure strategy and procurement process, among other things. According to TPA, making this information public would disclose TPA’s proprietary practices giving its competitors an unfair competitive advantage.

The OIC submits that much of the information in the minutes is factual, in the public domain or innocuous and thus not exempt. The information is not commercial or financial information within the meaning of paragraph 18(a) of the ATIA and TPA has failed to prove that the information, even if financial or commercial in nature, has substantial value or is reasonably likely to have substantial value.

With respect to TPA’s reliance on paragraph 18(b) of the ATIA, the OIC submits that there is no basis to conclude that any of the non-disclosed information will result in a risk of harm that is beyond merely possible or speculative, or that would prejudice TPA’s competitive position; disclosure of minutes prepared more than six years ago will not impact contractual or other negotiations since no such negotiations are ongoing for the purchase of a ferry.

The Court found that the paragraph 18(a) exemption is not applicable to any of the information to which TPA had applied it. Not all of the information to which paragraph 18(a) of the ATIA had been applied would disclose trade secrets or financial, commercial, scientific or technical information. Where some of the redacted information could be said to engage TPA’s ‘commercial’ and ‘financial’ interests where those terms are given their ordinary dictionary meaning, TPA failed to demonstrate by way of direct evidence that all of the information to which paragraph 18(a) of the ATIA was applied has substantial value or is reasonably likely to have substantial value. In some instances, the redacted information appears to reflect normal commercial or business practice where a business enterprise is undertaking a major capital expenditure. Additionally, some information that might be of substantial value is publicly available.

The Court rejected TPA’s reliance on paragraph 18(b) of the ATIA where there was insufficient evidence to allow a conclusion that the contents of the minutes in question could reasonably be expected to prejudice the competitive position of the TPA, particularly where related information was available as a matter of public record or TPA’s assertions were found to be speculative and lacking objective evidence to demonstrate that the prejudice asserted could be reasonably expected to arise.

However, the Court accepted TPA’s reliance on 18(b) in respect of information pertaining to a specific mortgage where there was no evidence before the Court as to whether the mortgage had been publicly registered. In the circumstances, the Court was satisfied that the assertion of prejudice to future real estate negotiations coupled with the non-registration of the mortgage is sufficient to establish that disclosure of the terms of the mortgage, including interest rate, could reasonably prejudice TPA’s future competitive position.

Paragraph 21(1)(b) of the ATIA

TPA submitted that the discretionary exemption under paragraph 21(1)(b) of the ATIA applies to the entirety of the minutes because the latter is an account of deliberations that discloses the manner in which the TPA conducts business. According to TPA, the mere fact that the minutes reflect a discussion of factual circumstances should not lead one to conclude that they are not a record of deliberation. Additionally, simply because the facts are public in another context does not mean the deliberation of those facts is public.

The OIC did not investigate the paragraph 21(1)(b) claim. However, the OIC argues that the 21(1)(b) exemption is not applicable where the information in question is largely factual in nature, and that TPA had a duty pursuant to section 25 of the ATIA to sever the factual component of the minutes and disclose this information to the Requester.

The Court reviewed TPA’s application of paragraph 21(1)(b) of the ATIA and rejected it

1. where it had been applied to factual statements that did not reflect discord nor betray the content of consultations or deliberations that may have occurred previously or in the course of the meeting;
2. where it had been applied inconsistently without rationale;
3. where information reflects only an administrative or logistical exchange; and
4. where the information was factual in nature, reflective of standard corporate governance and does not reflect deliberations but rather a simple and non-controversial decision to extend cheque signing authority to a TPA controller whose role, function and identity is publicly know.

However, the Court accepted TPA’s application of paragraph 21(1)(b) of the ATIA where it reflected an account of consultations or deliberations on matters that would normally require an exchange of ideas or views or reflected an account of active issues under deliberation by the Committee. The Court also accepted the application of paragraph 21(1)(b) of the ATIA to factual matters where the very facts underpin the consultation and deliberations that the head of a government institution may refuse to disclose or were directly tied to the deliberative functions of the TPA committee. Finally, the Court accepted TPA’s application of paragraph 21(1)(b) of the ATIA where the information to which it was applied pertains to “false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the reweighting of the relevant importance of the relevant factors as a problem is studied more closely”.

The Court rejected the proposition advanced by the OIC that the public nature of some information redacted from the minutes precludes TPA from relying on the paragraph 21(1)(b) exemption. Paragraph 21(1)(b) of the ATIA does not require a government institution to demonstrate harm or prejudice. Parliament has given the head of a government institution the discretionary ability to refuse to disclose accounts of consultations or deliberations by those individuals identified in paragraph 21(1)(b) of the ATIA without qualification.

Which party has the burden of demonstrating whether the Head of TPA reasonably exercised his discretion and did a reasonable exercise of discretion occur in this case?

The Court concluded that the jurisprudence (Ruby v. Canada (Solicitor General), [2000] FCJ No 779, 187 DLR (4th) (CA); 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254 [Telezone], Attaran v. Canada (Minister of Foregin Affairs, 2011 FCA 182) establishes that the burden of proof in demonstrating whether or not the respondent exercised its discretion in a reasonable manner in relation to the paragraph 18(b) and/or 21(1)(b) exemptions is dependent upon the circumstances before the Court.

The Court held that the circumstances in this case are much closer to those in Telezone FCA than the circumstances in Attaran and Ruby. The applicant is the Commissioner, not the requester, and the Commissioner has access to the unredacted Minutes and the lengthy exchange of correspondence between the OIC and TPA. The Court was therefore satisfied that the Commissioner is in a position to assume the burden of proof on the question of whether TPA failed to consider the relevant factors in reaching its decision on the redaction of the minutes.

In considering the exercise of TPA’s discretion, it is not for the Court to determine how it would have exercised the discretion, rather the Court merely reviews on administrative law grounds the legality of the exercise of discretion in light of the purpose of the statue and the exemption claimed. The Court determines if the exercise of discretion occurred in good faith and for some reason rationally connected to the purpose for which the discretion was granted and whether the responsible officials had considered all the factors that they were obliged by law to consider, including factors such as

1. the purpose of the exemption;
2. the passage of time;
3. the principles and objectives of the ATIA;
4. that one cannot use the ATIA to hide embarrassment or illegal acts;
5. the public interest, inclusive of all relevant interests; and
6. the prior public disclosure of information (Bronskill v. Canada (Minister of Canadian Heritage), 2011 FC 983, not varied on this point by 2012 FCA 250).

Here, the OIC established on a balance of probabilities that, on one hand, TPA considered irrelevant factors and, on the other, ignored relevant factors in exercising its discretion in this matter, a reviewable error.

First, the head of the TPA erred by refusing to consider the passage of time and the completion of certain processes as factors in the exercise of discretion. Where there has been a significant passage of time and much of the information is in the public domain, the passage of time and the completion of certain processes are factors relevant to the exercise of discretion. Failure to consider these factors was a reviewable error in relation to both paragraphs 18(b) and 21(1)(b) of the ATIA.

Second, TPA’s concession that the subsection 20(1) exemptions are not triggered also concedes by implication that no private third party rights are engaged. There were no private interests to be balanced in the exercise of TPA’s discretion. Reliance on this balancing of private interests in the exercise of discretion demonstrates reliance on an irrelevant consideration or factor.

Further, TPA’s failure to claim the paragraph 21(1)(b) exemption in a timely manner and set out its basis for relying on this exemption has deprived the Court of TPA’s explicit rationale for redacting some portions while disclosing others to which the 21(1)(b) exemption would also seem to apply. Having waited until the OIC’s investigation was substantially complete to claim reliance on paragraph 21(1)(b) of the ATIA triggered a need for TPA to demonstrate how its discretion was being exercised. Additionally, the answers on cross-examination coupled with TPA’s failure to specifically claim paragraph 21(1)(b) of the ATIA until October 28, 2013 led the Court to conclude that on a balance of probabilities, the head of TPA did not turn his mind to the specific issue of the exercise of discretion under paragraph 21(1)(b) of the ATIA until late in the process after receiving in house legal advice, not throughout the process as is indicated by way of affidavit. TPA cannot rely on a reference to deliberations made in November 2011 for the purpose of claiming the exemptions under paragraphs18(a) and (b) of the ATIA to buttress a claim that there was a reasonable exercise of discretion relating to paragraph 21(1)(b) of the ATIA on October 28, 2013. Thus, TPA did not consider all of the relevant factors, most importantly the public nature of much of the information it chose not to disclose.

If the Court determines that the application should be allowed in full or in part, what is the appropriate remedy?

The Court ordered that TPA disclose the portions of the redacted minutes to which no exemption applies and that the matter be returned to TPA to reconsider its reliance on the discretionary exemptions available to it in light of its reasons. No costs were awarded.

The decision is available on the Federal Court Decisions website at Canada (Information Commissioner) v. Toronto Port Authority, 2016 FC 683.

Federal Court of Canada

Citation: 2016 FC 117

Date of decision: February 2, 2016

Section of the Access to Information Act: Subsection 19(2)

• Subsection 19(2) – When disclosure of personal information is authorized

Section of the Privacy Act: Section 3

• Section 3 – Definition of personal information

Summary

Where only a private sector employee’s name and title are publicly available, a government institution may reasonably exercise discretion to disclose that employee’s name and title in connection with correspondence with the government institution.

Issues

• Whether the Canada-Newfoundland and Labrador Offshore Petroleum Board reasonably exercised discretion under subsection 19(2) of the Access to Information Act (ATIA) when it decided to disclose the name and title of Husky personnel contained in correspondence with it.

Facts

The Canada-Newfoundland and Labrador Offshore Petroleum Board (the Board) received an access request for certain records that included correspondence between the Board and Husky employees. The correspondence in issue contained the names and titles of Husky personnel.

Both parties agreed that the Husky employees’ names and title were publicly available on the Internet.

Husky argued to the Board that although the names and titles were on the Internet, the fact that these individuals were involved in the projects at issue and submitted records to the Board was not disclosed on the Internet. Therefore, their names and titles remained personal information because there was no publicly disclosed nexus between these individuals and the records.

The Board rejected these arguments and exercised discretion under subsection 19(2) of the ATIA to disclose the names and titles that were available on the Internet. The Board’s disclosure decision was based on the fact that the employees and their association with Husky can be confirmed on the Internet; therefore, the Board took the position that there was no reason not to disclose the information.

Decision

The judicial review application was dismissed with costs.

Reasons

The law is clear as to the standard of review on an application under section 44 of the ATIA involving subsections 19(1) and (2): whether the information is “personal information” pursuant to subsection 19(1) is a correctness standard and whether the information is publicly available and may be disclosed is a reasonableness standard (Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403).

The parties concede that the name and title of each of two employees were publicly available.

According to the Court, it is for Husky to show that the Board erred, either in fact or law, or was unreasonable in the exercise of its discretion (Toronto Sun Wah Trading Inc. v. Canada (Attorney General), 2007 FC 1091). Husky did not advance any evidence or analysis as to why the Board should not release this information.

Husky’s concern appears to be that the requester will link the names and titles to the projects or information filed with the Board and that somehow Husky suffers some disadvantage. However, that type of concern is one usually used in section 20 of the ATIA – an issue not raised in these proceedings.

There is no reason for the Court to interfere with the Board’s decision.

The decision is available on the Federal Court Decisions website at Husky Oil Operations Limited v. Canada-Newfoundland and Labrador Offshore Petroleum Board, 2016 FC 117.

Federal Court of Canada

Reference: 2016 FC 796

Date of decision: July 12, 2016

Sections of the Access to Information Act: Sections 17 and 19, paragraph 20(1)(b) and (c) and section 44

• Section 17 – Safety of individuals
• Section 19 – Personal information
• Paragraph 20(1)(b) – Third party information, financial, commercial, scientific or technical information
• Paragraph 20(1)(c) – Third party information, disclosure of information expected to result in material financial loss or gain or be expected to prejudice the competitive position of a third party
• Section 44 – Third party may apply for a review

Section of the Privacy Act: Section 3

• Section 3 – Definition, personal information

Summary

In the Court’s view, “publicly available” means that the personal information must be available on an ongoing basis for use by the “public”. In this case, the Court was not satisfied that the condition of ongoing availability of the personal information by the public was met because the personal information was password protected, and thus not otherwise independently accessible at the time the decision to disclose by Health Canada was made.

Even if the personal information was publicly available, the Court held that exercising the discretion in paragraph 19(2)(b) of the Access to Information Act (ATIA) in favour of disclosure was not reasonable having regard to the purpose of the exemption and the facts in this case.

In determining whether the information was confidential, the Court applied the three-part test of objective confidentiality, endorsed in Canada (Information Commissioner) v. Canadian Transportation Accident Investigation and Safety Board (CTAISB), 2006 FCA 157. Applying the CTAISB test, the Court held the records at issue were communicated in confidence by Dr. Martin, the study monitor and others to Health Canada.

Issue

• Whether the records identified by Health Canada in response to the access to information request, or parts thereof, are exempt from disclosure, pursuant to section 17, section 19 and paragraphs 20(1)(b) and (c) of the ATIA.

Facts

In June 2008, a Canadian resident (study monitor), visited with Dr. Martin in the United States to consult about clinical trials relating to children that have a development disability which also affected the study monitor’s son. The study monitor included his son in the clinical trial and Dr. Martin gave him some treatment solution with the understanding from Health Canada that this was allowed as a medical device for personal use under the Food and Drug Act or Medical Devices Regulations. The study monitor involved other Canadian parents in the clinical trial on the assumption that they could also rely on the personal use exemption.

The study monitor launched a website used to provide information to participating parents in the clinical trial. The site allowed participating parents to blog about their children’s progress and share testimonials about the clinical trial’s results. However, shortly thereafter the treatment solution stopped working and concerns arose that the children had been put at risk through the clinical trial.

In November 2008, Health Canada received a complaint from two concerned parents of children that were participating in the clinical trial. In the course of the investigation, Health Canada found advertisements for the clinical trial that claimed that the department had authorized the study when in fact no such authorization had been granted. Both Dr. Martin and the Study Monitor cooperated during Health Canada’s investigation which resulted in the end of the clinical trial and rendering the website in-operative.

In 2011, the Auditor General of Canada published a report which included a statement about the 2008, unauthorized clinical trial. A few months after, Health Canada received an access to information request that asked for “All documents and investigation reports relating to an unauthorized clinical trial under way in 2008 in Canada being run by a physician who was not based in Canada but was recruiting Canadian participants, until it was brought to the attention of Health Canada by the parents of a child-patient who was participating in the trial. The clinical trial was advertised as having been authorized by Health Canada.”

Health Canada retrieved 463 pages in response to the request, and consulted with Dr. Martin in respect of 46 of those pages. After a period of consultation, Health Canada rendered a decision. Dr. Martin filed an application in Federal Court for review of the decision. During the course of preparing to respond to Dr. Martin’s affidavit in the application, 100 pages of further records were identified as relevant to the access to information request. After a period of consultation, Health Canada rendered a decision in regards to the 100 pages which also resulted in an application for review of the decision in Federal Court. The hearing before the Court consolidated both applications. Dr. Martin claims the records or part thereof are exempt from disclosure because disclosure would reasonably be expected to threaten the safety of individuals under section 17 of the ATIA, is personal information exempted under section19 of the ATIA or third party information protected by paragraphs 20(1)(b) and (c).

Decision

The Federal Court allowed the application in part in accordance with the reasons. The Federal Court identified certain records or parts thereof as exempted from disclosure as technical or scientific confidential information supplied by a third party under paragraph 20(1)(b) of the ATIA or personal information exempted by section19 of the ATIA. Cost in the amount of $1000.00 were awarded to Dr. Martin.

Reasons

As a preliminary matter, the Court held it was outside the scope of the judicial review to grant the relief requested by Dr. Martin that the 2011 Auditor General’s report, as well as any other relevant documents, be amended to remove the phrase “unauthorized” when used in reference to the clinical trial that was being run in Canada.

Dr. Martin argued that some records to be disclosed by Health Canada should be exempt on the basis that they contain information which, if released, could reasonably be expected to threaten his safety, as well as the safety of the study monitor as described in section 17 of the ATIA. Dr. Martin maintained that disgruntled parents or sympathizers might wrongly conclude that the study monitor or Dr. Martin had put children at risk through the clinical trial. The Court held the evidence submitted did not support the application of section 17 of the ATIA. Dr. Martin had not demonstrated a direct link between the disclosure of the records and the alleged harm with detailed and convincing evidence in order to establish that these outcomes were reasonably probable.

The Court exempted certain records pursuant to section 19 of the ATIA, which protects personal information as defined in section 3 of the Privacy Act. The personal information at issue included information provided by Dr. Martin and others during Health Canada’s investigation into the clinical trial such as printouts of webpages from internet sites and information relating to the clinical trial that contained personal information insofar as they implicated the medical history of trial participants.

The Court did not view the personal information as publicly available as described in paragraph 19(2)(b) of the ATIA. In the Court’s view “publicly available” means that the personal information must be available on an ongoing basis for use by the “public”. In this case, the Court was not satisfied that the condition of ongoing availability of the personal information by the public was met because the personal information was password protected, and thus not otherwise independently accessible at the time the decision to disclose by Health Canada was made. To the extent that the information at issue was otherwise purportedly accessible by way of the Archive.org website, the Court held Health Canada presented no evidence as to the archiving capabilities of the Wayback Machine where password protection security on a website was utilized.

Even if the personal information was publicly available, the Court held that exercising the discretion in paragraph 19(2)(b) of the ATIA in favour of disclosure was not reasonable having regard to the purpose of the exemption and the facts in this case. Relevant facts included the wording of the access request, the confidential setting in which the personal information was provided and that internet postings should not automatically result in the forfeiture of individuals’ interest in retaining control over their personal information. The Court provided a detailed list of personal information to be exempted from disclosure under section 19 of the ATIA.

The Court also exempted some records pursuant to paragraph 20(1)(b) of the ATIA, which protects financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party. The Court held that the records included technical information related to the clinical trial and that scientific information was included among subsequent patent filings in the United States as well as in academic papers.

In determining whether the information was confidential, the Court applied the three-part test of objective confidentiality, endorsed in Canada (Information Commissioner) v. Canadian Transportation Accident Investigation and Safety Board (CTAISB), 2006 FCA 157 as:

• (a) the information must not be available from sources otherwise accessible by the public nor obtainable by observation or independent study by a member of the public acting on his own;
• (b) the information must originate and be communicated in circumstances giving rise to a reasonable expectation of confidence that it will not be disclosed; and
• (c) the information, whether required by law or supplied gratuitously, must be communicated in the context of a relationship which is either fiduciary or not contrary to the public interest and which will be fostered for public benefit by confidential communication.

Applying the CTAISB test the Court held the records at issue were communicated in confidence by Dr. Martin, study monitor and others to Health Canada. The Court noted that the access requests never made reference to Dr. Martin, the treatment solution or the clinical trial in an identifiable manner. The general population could not know or be able to access such information unless they were privy to the confidential information itself obtained during the investigation. Thereby, the Court concluded that the information at issue could not have been easily obtained by observation or independent study by a member of the public acting on his own nor could it have been understood to be in the “public domain”. The Court also noted that the published scientific papers and United States patent applications related to treating different conditions not directly related to the developmental disability being examined as part of the clinical trial. The Court held that a new use for a known compound that has not been disclosed in a public manner is not public by virtue of other publications detailing how that compound may be used for a different purpose. The Court provided a detailed list of records to be exempted from disclosure under paragraph 20(1)(b) of the ATIA.

Finally, the Court examined whether certain records were protected by paragraph 20(1)(c) of the ATIA, which exempts records whose disclosure could reasonably be expected to result in material financial loss or gain. The Court noted that the evidence must show that the risk of harm is considerably above a mere possibility. There must be a direct linkage between the disclosure of specific information and the harm alleged. In this case, there was insufficient evidence in this regard to claim the records were exempted.

The decision is available on the Federal Court Decisions website at Martin v. Canada (Health Canada), 2016 FC 796.

Federal Court of Canada

Citation: 2016 FC 168

Date of decision: April 5, 2016

Sections of the Access to Information Act: Sections 19 and 20; subsection 24(1)

• Section 19 – Personal information
• Section 20 – Third party information
• Subsection 24(1) – Statutory prohibitions against disclosure

Summary

Where a private sector employee’s name and company affiliation may be confirmed via publicly available information online, a government institution may reasonably exercise discretion to disclose this personal information in response to an access to information request.

Issues

• What is the applicable standard of review?
• Whether the Board erred in determining that the records should be disclosed.

Facts

Suncor Energy Inc. (Suncor) sought judicial review, pursuant to section 44 of the Access to Information Act (ATIA), of a decision of the Canada-Newfoundland Offshore Petroleum Board (the Board) which held that certain information was not protected pursuant to subsection 119(2) of the Canada-Newfoundland Atlantic Accord Implementation Act (Accord Act), was not personal information that was not in the public domain and was not otherwise exempt from disclosure.

Suncor is a Canadian energy corporation engaged in oil exploration and drilling activities off the coast of Newfoundland and Labrador, among other places.

The Board is a statutory body responsible for the monitoring of petroleum drilling and extraction off the coasts of Newfoundland and Labrador. It regulates the activities of operators in the oil and gas industry, including Suncor.

The Board received an access request seeking: (1) “submitted application forms, correspondence, board response, work credit amounts granted and all associated items and attachments for each program number on the attached March 13, 2012 CNLOPB letter” and (2) “all records of any viewing, disclosure, borrowing and copies being made of these same program numbers…”

The Board advised Suncor about the request and forwarded the relevant documents for its review. The documents included a request made by a named Suncor employee for information concerning the procedures and costs associated with ordering certain geophysical and geological reports; a list of the requested reports; pricing quotes for printing and binding of same; and an invoice from the Board for the retrieval and shipping of the reports. The names of several Suncor employees appear in the documents.

Suncor considered the documents in question to be information provided to the Board pursuant to Part III of the Accord Act and, accordingly, privileged pursuant to subsection 119(2) of that statute and exempt from disclosure pursuant to subsection 24(1) of the ATIA. Suncor also advised that in the alternative, certain portions should be redacted pursuant to subsection 19(1) and paragraphs 20(1)(b) and (d) of the ATIA. In the case of subsection 19(1) of the ATIA, Suncor took the position that although the affiliation of an individual with Suncor was publicly available, the fact that this specific individual had corresponded with the Board was not.

The Board responded that names would not be redacted since the status of individuals as employees of Suncor was publicly available. In various letters to Suncor, the Board advised that it was satisfied there was no valid reason for withholding names where names of Suncor employees could be confirmed via the Internet, but that phone numbers and email addressed would be redacted. The Board also took the position that without evidence of specific injury arising from the disclosure of the program names and numbers, there was no reason not to release the information.

Suncor commenced an application for judicial review pursuant to section 44 of the ATIA.

Decision

The judicial review application was allowed in part.

Reasons

Federal Court of Appeal

Citation: 2016 FCA 32

Date of decision: January 27, 2016

Section of the Access to Information Act: Section 41

• Section 41 – Review by Federal Court

Summary

Where an application for judicial review is moot because the Minister has provided all records in his possession and control, no further basis exists to intervene on appeal.

Mr. Albatal’s suspicions about the existence of additional records is not a ground to order the Minister to do anything more.

Issue

• Whether there is any basis under the Access to Information Act (ATIA) to intervene where the Federal Court rules that the matter was moot as the Minister had provided all records in its possession and control.

Facts^{Footnote 1}

In 2005, while living in Germany, Mr. Albatal, a Syrian national, successfully obtained permanent residence status in Canada.

During the processing of his permanent residence application, Mr. Albatal was interviewed at the Canadian Embassy in Berlin where questions focussed on his potential involvement in Syrian intelligence services. Mr. Albatal, believing false information was forwarded to the Canadian authorities, subsequently made two access requests. Citizenship and Immigration Canada (CIC) responded by releasing the requested records with certain portions redacted pursuant to subsection 15(1) of the ATIA.

Mr. Albatal complained to the Office of the Information Commissioner (OIC) challenging the Minister of Citizenship and Immigration (Minister)’s decision to withhold information. During the investigation, CIC disclosed the requested documents in their entirety, thereby withdrawing reliance on subsection 15(1) of the ATIA. The OIC concluded that the complaint was well-founded, but that it was not necessary to make recommendations.

Mr. Albatal sought judicial review of the Minister’s decision. The Federal Court held that section 41 applications can only proceed when there has been a refusal to disclose information. Because the Minister disclosed all records in his control, Mr. Albatal’s matter was moot.

Decision

The appeal was dismissed with costs.

Reasons

Brief reasons were delivered from the bench affirming the lower court’s findings. Having considered Mr. Albatal’s arguments, the Federal Court of Appeal could detect no basis on which it could intervene.

The decision is available on the Federal Court of Appeal Decisions website at Albatal v. Canada (Citizenship and Immigration), 2016 FCA 32.

Federal Court of Canada

Citation: 2016 FC 1154

Date of decision: October 17, 2016

Sections of the Privacy Act: Sections 31 and 33, paragraph 8(2)(b)

• Section 31 – Notice of intention to investigate
• Section 33 – Investigation in private
• Paragraph 8(2)(b) – Where personal information may be disclosed, any purpose in accordance with any Act of Parliament or any regulations made thereunder that authorizes its disclosure

Summary

There is a common law duty to notify persons who may be significantly and directly affected by a decision by the Privacy Commissioner made under the Privacy Act (PA). This duty is not displaced by sections 31 and 33 of the PA, which respectively state that a government institution must be notified of a complaint under the Act and that no one else is entitled to make representations as of right.

Where an individual has a direct and significant interest in protecting their professional reputation, procedural fairness, which relates to the principle that an affected individual should have the opportunity to present their case fully and fairly, demands that the individual be notified of a complaint and be given the opportunity to make representations in the course of an investigation by the Commissioner, notwithstanding the non-binding nature of a report of findings under the PA.

Issues

• What is the applicable standard of review?
• Whether the OPC breached the rules of natural justice and its duty of fairness toward Ms. Daley.
• Whether the OPC erred in concluding that Ms. Daley’s disclosure was unauthorized under the PA and the ITA?

Facts

This is an application for judicial review pursuant to sections 18 and 18.1 of the Federal Courts Act of a report of findings issued by the OPC and of a reconsideration decision rendered by the same with respect to a complaint against the Canada Revenue Agency (CRA).

Ms. Daley is a partner at a law firm who is occasionally retained by the CRA for litigation. She was retained by the CRA to defend a CRA investigator before several regulatory and civil tribunals. She also facilitated the retainer of another lawyer, Ms. T, by a foreign witness, Mr. O. At Ms. T’s request, Ms. Daley provided Ms. T with a transcript of Mr. O’s interview by her client, a CRA investigator, created in the course of a CRA investigation.

In 2013, Ms. Daley learned through a partner at her law firm that she had been found to have violated the PA following a complaint by the individual who had been under investigation by the CRA, Mr. H. The complaint relates to Ms. Daley’s disclosure of the said transcript to Ms. T.

The OPC had found that the transcript contained extensive information about Mr. O’s business relationship with the complainant and his views about the complainant, which met the definition of personal information. Paragraph 241(3)(b) of the ITA authorizes disclosure of taxpayer information for legal proceedings relating to the administration and enforcement of the ITA. The OPC concluded that the CRA could not rely on paragraph 241(3)(b) of the ITA,  in conjunction with paragraph 8(2)(b) of the PA, as the authority for disclosing the transcript because the legal proceedings giving rise to the disclosure were insufficiently connected with the administration and enforcement of the ITA. The OPC concluded that the complaint was well-founded.

On July 17, 2013, Ms. Daley wrote to the OPC to express her concerns that she had not been informed of the complaint, nor given the chance to respond to Mr. H’s allegations. She also noted that she was not an employee of the CRA and that the transcript transmitted to Ms. T was public in nature. Ms. Daley requested that the OPC re-open the investigation into the complaint.

On July 26, 2013, the OPC invited Ms. Daley to submit further information on the public nature of the transcript in question.

On September 23, 2013, following Ms. Daley’s further submissions, the OPC advised her that there were insufficient grounds to re-open the investigation and that the matter had been closed. More precisely, the OPC concluded it did not have reason to believe that the entire transcript in question and all of the complainant’s personal information contained therein was part of a court record or otherwise publicly available.

Decision

The application was allowed. The OPC’s report of findings was quashed and the matter was sent back for redetermination in accordance with the Court’s reasons.

Reasons

Federal Court of Canada

Citation: 2016 FC 1167

Date of decision: October 19, 2016

Sections of the Privacy Act: Subsection 12(1), sections 22.1, 26 and 27

• Subsection 12(1) – Right of access to personal information
• Section 22.1 – Information obtained by Privacy Commissioner
• Section 26 – Information about another individual
• Section 27 – Solicitor-client privilege

Summary

The Federal Court does not have jurisdiction under section 41 of the Privacy Act (PA) to review the findings and reports of the Privacy Commissioner Ad Hoc (PCAH).

The burden falls to an applicant to provide sufficient information about requested information to make it “reasonably retrievable”; supplying a sufficiently specific location for the requested information (back-up e-mail server) does not automatically or necessarily make any such information “reasonably retrievable”.

A person’s name in and of itself is not necessarily or automatically personal information; it only becomes such when linked to other information relating to the individual, or when disclosure of the name itself would reveal information about the individual.

To apply section 26 of the PA, information about another individual must be “personal information”. Business e-mail addresses of contractors in the private sector do not constitute personal information, and if they do, the Office of the Privacy Commissioner (OPC)’s decision to redact them was unreasonable because the redactions were applied inconsistently.

Subsection 22.1(1) of the PA cannot be invoked in respect of information created by the OPC during the course of an investigation once that investigation has concluded, even where the information created by the OPC may refer to information obtained by it during the course of the investigation.

Whether the reports of the PCAH can be reviewed on this application under section 41 of the PA.

By virtue of Rule 302 of the Federal Court Rules, unless the Court orders otherwise, an application for judicial review normally may be made in respect of only one decision. Although he requests certification of a question concerning the operation and independence of the PCAH, Dr. Oleynik’s primary request for relief concerns the OPC’s refusal to provide certain information as well as its refusal to check its back-up tapes. Accordingly, only the OPC’s decision, rather than the PCAH’s reports and findings, is the decision to be reviewed on this application under section 41 of the PA.

Furthermore, the Court found that it did not have jurisdiction under section 41 of the PA to review the findings and reports of the PCAH.

Because the OPC itself was the government institution which refused to disclose certain information, the PCAH performed the role that would have otherwise been performed by the OPC. Case law has clearly established that the findings and reports of the OPC, or in this case the PCAH, concerning an institution’s refusal to disclose certain information are not binding upon a government institution, although they are an important consideration in a review under section 41 of the PA.

The Court found that the OPC’s, and in this case the PHAC’s, findings and report are not open to review under section 41 of the PA since it is the government institution, not the OPC, which is required to justify a refusal to disclose certain information. The Court did note that the manner in which PHAC exercised its delegated authority could be open to judicial review by way of a separate application.

What is the appropriate standard of review?

Correctness is the standard of review applicable to the OPC’s assessment of whether certain information falls under one of the statutory exemptions under the Act. Reasonableness is the standard of review applicable to the OPC’s exercise of discretion regarding whether to refuse to disclose certain information.

Whether the OPC’s determination that information on its back-up tapes or servers was “not reasonably retrievable” was reasonable.

The Court found that it was reasonable in the circumstances for the OPC to determine that information on its back-up systems was not reasonably retrievable. The evidence showed that searching the OPC’s back-up e-mail server would have required reimaging or restoring all of the OPC’s servers and not just e-mails in in-boxes on its back-up tapes. Moreover, there was no evidence that there was any additional or deleted information on the back-up systems. This finding is in line with the PCAH’s February 15, 2014, report that found that Dr. Oleynik’s complaint about the OPC’s failure to search its back-up tapes was not well-founded.

The burden was upon Dr. Oleynik to provide sufficient information about his requested information in order to make it “reasonably retrievable” by the OPC. Dr. Oleynik did not specify the dates or recipients of the e-mails he sought in his request. The Court found that Dr. Oleynik may have supplied a sufficiently specific location for the requested information, but that this does not necessarily make it “reasonably retrievable.”

Whether the OPC erred in refusing access to certain information by virtue of subsection 12(1) or sections 22.1, 26 or 27 of the PA.

Subsection 12(1) (not personal information)

The Court agreed with the OPC’s argument that a person’s name in and of itself is not necessarily or automatically personal information and that it only becomes such when linked to other information relating to the individual, or when disclosure of the name itself would reveal information about the individual. According to the OPC, Dr. Oleynik does not have a right to access all records that contain his name, but only those records that have information about him in addition to his name. The Court agreed with the OPC that subsection 12(1) of the PA is more of a parameter for access to information than it is an exemption for disclosure.

After carefully reviewing all of the instances where subsection 12(1) of the PA was used alone or in conjunction with another provision of the PA to refuse disclosure of information, the Court could not conclude that the OPC incorrectly or unreasonably relied upon this subsection to withhold personal information. In most instances, the personal information of Dr. Oleynik was co-mingled with that of others in internal OPC reports and, thus, it was correctly and reasonably exempted from disclosure since it concerned the personal information of others and not that of Dr. Oleynik.

Section 22.1 of the PA (information obtained/created by the OPC during an investigation)

Subsection 22.1(1) of the PA provides for the exclusion from disclosure of personal information obtained or created by the OPC during an investigation. The Court noted that once the investigation and all related proceedings have concluded, this subsection cannot be invoked to refuse disclosure of personal information created by the OPC, whereas information obtained by the OPC can continue to be withheld.

Most of the information withheld on the basis of this subsection pertained to information obtained by the OPC during the course of investigations and the Court found that this information was correctly withheld. Some of the information withheld on the basis of this subsection pertained to information created by the OPC during the course of their investigations. The Court found that this information was incorrectly and unreasonably withheld as the investigation and related proceedings had been completed by the time Dr. Oleynik made his request. The Court found that the information created by the OPC should not have been withheld merely because it referred to information obtained by it from the SSHRC.

Section 26 of the PA (third party personal information)

Section 26 of the PA allows the head of a government institution to refuse disclosure of third-party information.

The Court found that in some instances, certain information had been improperly redacted based on Section 26 of the PA. For instance, the Court found that the OPC had improperly redacted the business e-mail address of a paralegal on contract with them. The Court referred to the Federal Court of Appeal decision Bernard v Canada, 2010 FCA 40, where it was stated that, although a home e-mail address is clearly protected personal information, the status of an office e-mail address is uncertain. The Court in this case was of the opinion that an office or business e-mail address is akin to the office phone number of the government employee in Bernard, which is explicitly excluded from the definition of personal information in section 3 of the PA. Moreover, the OPC had redacted the business e-mail of a paralegal and not that of a lawyer retained by them, which the Court found to be unreasonable because it constituted a contradictory application of the exemption under section 26 of the PA.

With respect to other instances where the OPC relied only upon section 26 of the PA to withhold information, the Court could not find or conclude that the OPC incorrectly or unreasonably refused to disclose certain personal information about persons other than Dr. Oleynik.

Section 27 of the PA (solicitor-client privilege)

Section 27 of the PA allows the head of a government institution to refuse disclosure of information subject to solicitor-client privilege.

The Court found that the OPC had correctly withheld documents from Dr. Oleynik on the basis of solicitor-client privilege in all but three instances:

• when redacting background information about Dr. Oleynik that was not legal advice or strategy provided by counsel for the OPC;
• when redacting a publicly reported case, although the discussion among OPC counsel and legal advice concerning the case was properly redacted; and
• when redacting an e-mail from the Federal Court because it did not constitute legal advice or strategy within a solicitor-client relationship.

The Court found the OPC acted reasonably in deciding to withhold documents on the basis of solicitor-client privilege. Given the permissive and discretionary nature of the word ‘may’ in section 27 of the PA, deference should be afforded to the OPC’s reliance upon this section in those instances where it correctly identified documents as being subject to solicitor-client privilege. In this context, the scope of reasonable outcomes is relatively broad because it is the OPC who should decide whether to waive its solicitor-client privilege.

The decision is available on the Federal Court Decisions website at Oleynik v. Canada (Privacy Commissioner), 2016 FC 1167.