Teresa Scassa - Blog

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

Published in Privacy

As part of Right to Know week, I participated in a conference organized by Canada’s Office of the Information Commissioner. My panel was asked to discuss Bill C-58, an Act to amend the Access to Information Act. I have discussed other aspects of this bill here and here. Below are my thoughts on the Commissioner’s order-making powers under that Bill.

Bill C-58, the Act to amend the Access to Information Act will, if passed into law, give the Information Commissioner order-making powers. This development has been called for repeatedly over the years by the Commissioner as well as by access to information advocates. Order-making powers transform the Commissioner’s recommendations into requirements; they provide the potential to achieve results without the further and laborious step of having to go to the Federal Court. This is, at least the theory. For many, the presence of order-making powers is one of the strengths of C-58, a Bill that has otherwise been criticized for not going far enough to reform a badly outdated access to information regime.

Before one gets too excited about the order-making powers in Bill C-58, however, it is worth giving them a closer look. The power is found in a proposed new s. 36.1, which reads:

36.‍1 (1) If, after investigating a complaint described in any of paragraphs 30(1)‍(a) to (d.‍1), the Commissioner finds that the complaint is well-founded, he or she may make any order in respect of a record to which this Part applies that he or she considers appropriate, including requiring the head of the government institution that has control of the record in respect of which the complaint is made

(a) to disclose the record or a part of the record; and

(b) to reconsider their decision to refuse access to the record or a part of the record.

Although this appears promising, there is a catch. Any such order will not take effect until after the expiry of certain periods of time. The first of these is designed to allow the head of the institution to ask the Federal Court to review “the matter that is the subject of the complaint.” The second time period is to allow third parties (for example, someone whose personal information or confidential commercial information might be affected by the proposed order) or the federal Privacy Commissioner to apply to the Federal Court for a review. (The reason why the Privacy Commissioner might be seeking a review is the subject of an earlier post here).

The wording of these provisions makes it clear that recourse to the Federal Court is neither an appeal of the Commissioner’s order, nor an application for judicial review. Instead, the statute creates a right to request a hearing de novo before the Federal Court on “the matter that is the subject of the complaint”. As we know from experience with the Personal Information Protection and Electronic Documents Act, such a proceeding de novo does not require any deference to be given to the Commissioner’s report, conclusions or order.

One need only compare these order-making powers with those of some of the Commissioner’s provincial counterparts to see how tentative the drafters of Bill C-58 have been. Alberta’s Freedom of Information and Protection of Privacy Act states simply “An order made by the Commissioner under this Act is final.”(s. 73) British Columbia’s statute takes an approach which at first glance looks similar to what is in C-58. Section 59 provides:

59. (1) Subject to subsection (1.1), not later than 30 days after being given a copy of an order of the commissioner, the head of the public body concerned or the service provider to whom the order is directed, as applicable, must comply with the order unless an application for judicial review of the order is brought before that period ends.

Like C-58, s. 59 of B.C.’s Freedom of Information and Protection of Privacy Act provides for a delay in the order’s taking effect depending on whether the head of the institution seeks to challenge it. However, unlike C-58, the head of the institution must seek judicial review of the order (not the matter more generally). Judicial review is based on the record that was before the original adjudicator. It is also a process that requires some deference to be shown to the Commissioner.

A report on the modernization of Canada’s access to information regime compared the current ombuds model with the order-making model. It found that the order making model was preferable for a number of cogent reasons. Two of these were:

  • It gives a clear incentive to institutions to apply exemptions only where there is sufficient evidence to support non-disclosure and then put this evidence before the adjudicator, as judicial review before the Court is based on the record that was before the adjudicator.
  • The grounds on which the order can be set aside are limited and the institution cannot introduce new evidence or rely on new exemptions, as it is the adjudicator’s, and not the institution’s, decision that is under review before the Court.

These are very sound reasons for moving to an order-making model. Unfortunately, the model provided in Bill C-58 does not provide these advantages. Because it allows for a hearing de novo, there is no incentive to put everything before the adjudicator – new evidence and arguments can be introduced before the Federal Court. This will do nothing to advance the goals of accountability and transparency; it might even help to obstruct them.

Published in Privacy

Note: I was invited by Canada’s Information Commissioner and the Schools of Journalism and Communication, and Public Policy and Administration at Carleton University to participate in a workshop to launch Right to Know Week 2016. This was a full afternoon workshop featuring many interesting speakers and discussions. This blog post is based on my remarks at this event.

For the last 5 years or so, governments at all levels across Canada have been embracing the open government agenda. In doing so, they have expressed, in various ways, new commitments to open data, to the proactive disclosure of government information, and to new forms of citizen engagement. Given that the core goals of the open government movement are to increase government transparency and accountability in the broader public interest, these developments are positive ones.

There is a risk, however, that public commitments to open government have become a bit of a ‘feel good’ thing for governments. After all, what government doesn’t want to publicly commit to being open, transparent and accountable? As a result, it is important to look behind the rhetoric and to examine the nature of the commitments made to open government in Canada and to question how meaningful and enduring they really are.

For the most part, commitments to open government in Canada have been manifested in declarations, policy documents, and directives. These documents express government policy and provide direction to government actors and institutions. Yet they are “soft law” at best. They are not enacted through a process of legislative debate, they are not expressed in laws that would have to be formally repealed or amended in order to be altered, there are no enforcement or compliance mechanisms, and they remain subject to change at the whim of the government in power. Directives and policies, of course, can provide rapid and responsive mechanisms for operationalizing changes in government direction, and so I am not criticizing decisions to set open government in motion through these various means. But I am suggesting that a longer term commitment to open government might require some of these measures to be expressed in and supported by legislation in order to become properly entrenched.

For example, much effort has been invested by the federal government in creating an open licence to facilitate reuse of government data and information. After a slow and sometimes painful process, we now have a pretty good open government licence. It is based on the UK OGL and is very user friendly compared to earlier iterations. It is bilingual and it can be customized to be used by governments at all levels in Canada (for example, a version of this licence was just adopted by city of Ottawa). This reduces the burden on provincial and municipal governments contemplating open government and it creates the potential for greater legal interoperability (when users combine data or information from a number of different governments in Canada).

But let us not forget why we need an open government licence in Canada. An open licence permits the public to make use of works that are protected by copyright without the need to ask permission or pay royalties, and with the fewest restrictions on re-use as possible. Government works in Canada – and this includes court decisions, statutes, Hansard, government reports, studies, to name just a few – are protected by copyright under section 12 of the Copyright Act. One might well ask why, instead of toiling for years to come up with the current open licence, the government has not shown its commitment to openness by abolishing Crown copyright. It’s not as radical as it might sound. In the U.S., s. 105 of the Copyright Act expressly denies protection to works of the U.S. government without any obvious negative consequences. In the U.S., these works are automatically in the public domain. This legislated, hard law solution makes the commitment real and relatively permanent. Yet as things stand in Canada, government works are protected by copyright by default, and governments choose which works to make available under the open licence and which they wish to provide under more onerous licence terms. They can also decide at some point to tear up the open licence and go back to the way things used to be. Crown copyright in its current incarnation sets the default at ‘closed’.

It is true that some aspects of open government are already part of our legislative framework. We have had freedom of information/access to information laws for decades now in Canada, and these laws enshrine the principle of the public’s right to access information in the hands of government. However, the access to information laws that we have are ‘first generation’ when it comes to open government. The federal Act is currently being reviewed by Parliament, and we might see some legislative change, though how much and how significant remains to be seen. As Mary Francoli has pointed out, there wasn’t really a need for further review – the new government had plenty of material on which to take action in proposing amendments to the Act.

The many deficiencies in the Access to Information Act have been well documented. For example, in 2015 the Information Commissioner set out 85 proposed reforms to the statute to modernize and improve it. The June 2016 Report by the Standing Committee on Access to Information, Privacy and Ethics on its Review of the Access to Information Act takes up many of these proposals in its own recommendations for extensive reforms to the Act. We are now awaiting the government’s response to this report. Rather than review the many recommendations already made, I will highlight those that relate to my broader point about enshrining open government principles in legislation

The Access to Information Act as it currently stands is premised on a model of individuals asking for information from government, waiting patiently while government puts together the requested information, and then complaining to the Commissioner when too much information is redacted or withheld. Open government promises both information and data proactively, in reusable formats, and without significant restrictions on reuse. While proactive disclosure of information and open data cannot replace the access to information model (which is, itself, capable of considerable improvement), they will provide quicker, cheaper and more effective access in many areas. Yet the Access to Information Act does not currently contain any statement about proactive disclosure. Proactive disclosure – also referred to as “open by default” is not really “open by default” unless the law says it is. Until then, it is just an aspirational statement and not a legal requirement. We see a proliferation of policies and directives at all levels of government that talk about proactive disclosure, but there are not firm legal commitments to this practice, or to open data. And, although I have been focussing predominantly on the federal regime, these issues are relevant across all levels of government in Canada.

A core principle of open data is that the data sets provided by governments should be made available in open, accessible and reusable formats. Proactive disclosure of information should also be in reusable formats. Access under the conventional regime is also enhanced when the information disclosed is in formats that facilitate analysis and reuse. Yet even under the existing access model, there is no default requirement to provide requested information in open, accessible and reusable formats. It is important to remember that it is not enough just to provide ‘access’ – the nature and quality of the access provided is relevant. The format in which information is provided in a digital age can create a barrier to the processing or analysis of information once accessed.

I would like, also, to venture onto territory that is not addressed in the calls for reform to access to information laws. Another challenge that I see for open data (and open information) in Canada relates to the sources of government data. I am concerned about the lack of controls over the use of taxpayer dollars to create closed data. As we move into the big data era, governments will be increasingly tempted to source their data for decision-making from private sector suppliers rather than to generate it in-house. We are seeing this already; an example is found in recent decisions of some municipal governments to source data about urban cycling patterns from cycling app companies. There will also be instances where governments contract with the private sector to install sensors to collect data, or to process it, and then pay licence fees for access to the resulting proprietary data in the hands of the private sector companies. In these cases, the terms of the license agreements may limit public access to the data or may place significant restrictions on its reuse. This is a big issue. All the talk about open government data will not do much good if the data on which the government relies is not characterized as “government data”. It is important that governments develop transparent policies around contracts for the collection, supply or processing of data that ensure that our rights as members of the public to access and reuse this data – paid for with our tax dollars – are preserved. Even better, it might be worth seeing some principle to this effect enshrined in the law.

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