Tuesday, 01 May 2018 07:05

Ontario Court rules that open courts principle trumps privacy; finds part of Ontario's access to information law unconstitutional

Written by  Teresa Scassa
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What is the proper balance between privacy and the open courts principle when it comes to providing access to the decisions of administrative tribunals? This is the issue addressed by Justice Ed Morgan in a recent Ontario Superior Court decision. The case arose after the Toronto Star brought an application to have parts of Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) declared unconstitutional. To understand this application, some background may be helpful.

Courts in Canada operate under the “open courts principle”. This principle has been described as “one of the hallmarks of a democratic society” and it is linked to the right of freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. The freedom of expression is implicated because in order for the press and the public to be able to debate and discuss what takes place in open court, they must have access to the proceedings and to the records of proceedings. As Justice Morgan notes in his decision, the open courts principle applies not just to courts, but also to administrative tribunals, since the legitimacy of the proceedings before such tribunals requires similar transparency.

Administrative bodies are established by legislation to carry out a number of different functions. This can include the adjudication of matters related to the subject matter of their enabling legislation. As the administrative arm of government has expanded, so too has the number and variety of administrative tribunals at both the federal and provincial levels. Examples of tribunals established under provincial legislation include landlord-tenant boards, human rights tribunals, securities commissions, environmental review tribunals, workers’ compensation tribunals, labour relations boards, and criminal injury compensations boards – to name just a very few. These administrative bodies are often charged with the adjudication of disputes over matters that are of fundamental importance to individuals, impacting their livelihood, their housing, their human rights, and their compensation and disability claims.

Because administrative tribunals are established by provincial legislation, they are public bodies, and as such, are subject to provincial (or, as the case may be, federal) legislation governing access to information and the protection of personal information in the hands of the public sector. The applicability of Ontario’s Freedom of Information and Protection of Privacy Act is at the heart of this case. The Toronto Star brought its application with respect to the 14 administrative tribunals found in the list of institutions to which FIPPA applies in a Schedule to that Act. It complained that because FIPPA applied to these tribunals, the public presumptively had to file access to information requests under that statute in order to access the adjudicative records of the tribunals. It is important to note that the challenge to the legislation was limited a) to administrative tribunals, and b) to their adjudicative records (as opposed to other records that might relate to their operations). Thus the focus was really on the presumptive right of the public, according to the open courts principles, to have access to the proceedings and adjudicative records of tribunals.

Justice Morgan noted that the process under FIPPA requires an applicant to make a formal request for particular records and to pay a fee. The head of the institution then considers the request and has 30 days in which it must advise the applicant as to whether access will be granted. The institution may also notify the applicant that a longer period of time is required to respond to the request. It must give notice to anyone who might be affected by the request and must give that person time in which to make representations. The institution might refuse to disclose records or it might disclose records with redactions; a dissatisfied applicant has a right of appeal to the Information and Privacy Commissioner.

In addition to the time required for this process to unfold, FIPPA also sets out a number of grounds on which access can be denied. Section 42(1) provides that “An institution shall not disclose personal information in its custody or under its control”. While there are some exceptions to this general rule, none of them relates to adjudicative bodies specifically. Justice Morgan noted that the statute provides a broad definition of personal information. While the default rule is non-disclosure, the statute gives the head of an institution some discretion to disclose records containing personal information. Thus, for example, the head of an institution may disclose personal information if to do so “does not constitute an unjustified invasion of personal privacy” (s. 21(1)(f)). The statute sets out certain circumstances in which an unjustified invasion of personal privacy is presumed to occur (s. 21(3)), and these chiefly relate to the sensitivity of the personal information at issue. The list includes many things which might be part of adjudication before an administrative tribunal, including employment or educational history, an individual’s finances, income, or assets, an individual’s eligibility for social service or welfare benefits, the level of such benefits, and so on. The Toronto Star led evidence that “the personal information exemption is so widely invoked that it has become the rule rather than an exemption to the rule.” (at para 27). Justice Morgan agreed, characterizing non-disclosure as having become the default rule.

FIPPA contains a “public interest override” in s. 23, which allows the head of an institution to release records notwithstanding the applicability of an exception to the rule of disclosure, where “a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.” However, Justice Morgan noted that the interpretation of this provision has been so narrow that the asserted public interest must be found to be more important than the broad objective of protecting personal information. In the case of adjudicative records, the Information and Privacy Commissioner’s approach has been to require the requester to demonstrate “that there is a public interest in the Adjudicative Record not simply to inform the public about the particular case, but for the larger societal purpose of aiding the public in making political choices” (at para 31). According to Justice Morgan, “this would eliminate all but the largest and most politically prominent of cases from media access to Adjudicative Records and the details contained therein” (at para 32).

The practice of the 14 adjudicative bodies at issue in this case showed a wide variance in the ways in which they addressed issues of access. Justice Morgan noted that 8 of the 14 bodies did not require a FIPPA application to be made; requests for access to and copies of records could be directed by applicants to the tribunal itself. According to Justice Morgan, this is not a problem. He stated: “their ability to fashion their own mechanism for public access to Adjudicative Records, and to make their own fine-tuned determinations of the correct balance between openness and privacy, fall within the power of those adjudicative institutions to control their own processes” (at para 48). The focus of the court’s decision is therefore on the other 6 adjudicative bodies that require those seeking access to adjudicative records to follow the process set out in the legislation. The Star emphasized the importance of timeliness when it came to reporting on decisions of adjudicative bodies. It led evidence about instances where obtaining access to records from some tribunals took many weeks or months, and that when disclosure occurred, the documents were often heavily redacted.

Justice Morgan noted that the Supreme Court of Canada has already found that s. 2(b) protects “guaranteed access to the courts to gather information” (at para 53, citing Canadian Broadcasting Corp. v. New Brunswick (A.G.)), and that this right includes access to “exhibits entered into evidence, photocopies of all such records, and the ability to disseminate those records by means of broadcast or other publication” (at para 53). He found that FIPPA breaches s. 2(b) because it essentially creates a presumption of non-disclosure of personal information “and imposes an onus on the requesting party to justify the disclosure of the record” (at para 56). He also found that the delay created by the FIPPA system “burdens freedom of the press and amounts in the first instance to an infringement” of s. 2(b) of the Charter (at para 70). However, it is important to note that under the Charter framework, the state can still justify a presumptive breach of a Charter right by showing under s. 1 of the Charter that it is a reasonable limit, demonstrably justified in a free and democratic society.

In this case, Justice Morgan found that the ‘reverse onus’ placed on the party requesting access to an adjudicative record to show why the record should be released could not be justified under s. 1 of the Charter. He noted that in contexts outside of FIPPA – for example, where courts consider whether to impose a publication ban on a hearing – the presumption is openness, and the party seeking to limit disclosure or dissemination of information must show how a limitation would serve the public interest. He stated that the case law makes it clear “that it is the openness of the system, and not the privacy or other concerns of law enforcement, regulators, or innocent parties, that takes primacy in this balance” (at para 90). Put another way, he states that “The open court principle is the fundamental one and the personal information and privacy concerns are secondary to it” (at para 94).

On the delays created by the FIPPA system, Justice Morgan noted that “Untimely disclosure that loses the audience is akin to no disclosure at all” (at para 95). However, he was receptive to submissions made by the Ontario Judicial Council (OJC) which had “admonished the court to be cognizant of the complex task of fashioning a disclosure system for a very diverse body of administrative institutions” (at para 102). The OJC warned the court of the potential for “unintended consequences” if it were to completely remove tribunals from the FIPPA regime. The concern here was not so much for privacy; rather it was for the great diversity of administrative tribunals, many of which are under-resourced and under-staffed, and who might find themselves “overwhelmed in a suddenly FIPPA-free procedural environment” (at para 103). Justice Morgan also noted that while the Toronto Star was frustrated with the bureaucracy involved in making FIPPA applications, “bureaucracy in and of itself is not a Charter violation. It’s just annoying.” (at para 104) He noted that the timelines set out in FIPPA were designed to make the law operate fairly, and that “Where the evidence in the record shows that there have been inordinate delays, the source of the problems may lie more with the particular administrators or decision-makers who extend the FIPPA timelines than with the statutory system itself” (at para 105). He expressed hope that by removing the ‘reverse onus’ approach, any issues of delay might be substantially reduced.

As a result, Justice Morgan found the “presumption of non-disclosure for producing Adjudicative Records containing “personal information” as defined in s. 2(1)” to violate the Charter. Given the complexity of finding a solution to this problem, he gave the legislature one year in which to amend FIPPA. He makes it clear that tribunals are not required to follow the FIPPA request process in providing access to their Adjudicative Records, but it does not breach the Charter for them to do so.

This is an interesting decision that addresses what is clearly a problematic approach to providing access to decisions of administrative tribunals. What the case does not address are the very real issues of privacy that are raised by the broad publication of administrative tribunal decisions. Much ink has already been spilled on the problems with the publication of personal information in court and tribunal decisions. Indeed the Globe24hr case considered by both the Office of the Privacy Commissioner of Canada and the Federal Court reveals some of the consequences for individual privacy when such decisions are published in online repositories. Of course, nothing in Justice Morgan’s decision requires online publication, but openness must be presumed to include such risks. In crafting a new legislative solution for adjudicative records, the Ontario government might be well advised to look at some of the materials produced regarding different strategies to protect privacy in open tribunal decisions and might consider more formal guidance for tribunals in this regard.

 

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Interested in the issues raised by this case? Here is a sampling of some other decisions that also touch on the open courts principle in the context of administrative tribunals:

Canadian Broadcasting Corp. v. Canada (Attorney General)

United Food & Commercial Workers Union Local 1518 v. Sunrise Poultry Processors Ltd.

These three cases deal with individuals trying to get personal information redacted from tribunal decisions destined to be published online in order to protect their personal information: Fowlie v. Canada; A.B. v. Brampton (City); Pakzad v. The Queen

Teresa Scassa

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