May 9, 2018

Redrafting Freedom of Information in a Digital Era

Toronto Star v. AG Ontario, 2018 ONSC 2586 (CanLII)

The importance of privacy in our technologically driven society can never be overrated, but even then there are limits to the extent to which a free and democratic society can and should protect privacy interests.

The Freedom of Information and Protection of Privacy Act (“FIPPA”) received royal assent in 1987, coming into force in 1988. The Act was the result of the NDP conditional support of the Liberal minority government that would create new freedom of information and privacy protections, based on the 1980 report, Public government for private people : the report of the Commission on Freedom of Information and Individual Privacy (the "Williams Report").

The Williams Report examined the handling of personal information by provincial government institutions, and found them to be inadequate. Despite collecting increasingly large amounts of sensitive personal information at the time, the government did not have a policy for imposing limits, or any systematic review of collection practices to ensure sensitive information is only gathered when necessary.

The report called for the enactment of legislation that would ensure uniform adoption of policies and practices which would provide a secure legal foundation for the public right to obtain information about governmental institutions,

Public institutions are required to conduct their affairs in such a manner as to facilitate public accountability. Scrutiny of public institutions by individual citizens is encouraged, while scrutiny of the private lives of citizens by governmental institutions is discouraged. The private lives of individual citizens are protected by ensuring that proper limitations on the use of surveillance of individual citizens are observed by government.
The report indicated that although privacy protection is an important interest, it is not an absolute one,
On occasion, the interest of an individual in preserving personal privacy must yield to the public interest in being able to subject the conduct of public affairs to scrutiny.
The purposes of the FIPPA that came out of this report was laid out in s. 1 as follows:

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific, and

(iii) decisions on the disclosure of government information should be reviewed independently of government; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.

[emphasis added]

The full list of 182 institutions involved outside of those identified in the Act can be found in Reg 460, and includes a wide variety of tribunals and agencies.

A constitutional challenge to the application of FIPPA to administrative tribunals was recently made by the Toronto Star, who claimed in Toronto Star v. AG Ontario to have some difficulty obtaining a schedule of hearings in advance, or reviewing Adjudicative Records following the conclusion of the hearing.

The applicant claimed that the FIPPA process was potentially lengthy and cumbersome, and posed as an obstacle to the open court principle due to its presumption of non-disclosure. By invoking the personal information exemption under s. 21(1), some tribunals appear to largely refuse or widely redact claims based on the broad definition of “personal information,” rather than utilizing the premise of production found under s. 10(1).

The public interest override of the exemptions was very rarely invoked. The government claimed that there was a need to balance the competing privacy rights and public access, and that delays were not necessarily widespread.

The court noted that some tribunals had no delay at all, as they voluntarily provide full information and unredacted decisions on a website, allowing public access without any FIPPA request at all.

Justice Morgan found that FIPPA violated s. 2(b) by imposing a reverse onus on a request for Adjudicative Records, and by creating an unreasonable delay with accessing these records. Delays of up to 8 months meant that any information sought by the applicant would no longer be timely or newsworthy.

In conducting a s. 1 analysis, Justice Morgan found that there were multiple objectives of FIPPA of sufficient importance, but identified greater difficulty with minimal impairment,

[95] An across-the-board presumption such as that embodied in s. 21 of FIPPA, in which privacy and non-disclosure rather than openness and disclosure is the presumptive rule, cannot qualify as a minimum impairment of s. 2(b) of the Charter. The open court principle is the fundamental one and the personal information and privacy concerns are secondary to it.[119] That principle directs administrative tribunals to protect confidentiality only where a party seeking it establishes that it is necessary to protect important interests.[120] Although the decision-maker may be exercising a statutory discretion taking into account the context on a case by case basis, the onus must remain on the party seeking to keep the information from the public rather than the other way around.
At the same time, the entirety of the legislative scheme, and its applicability to a wide variety of tribunals, could not necessarily be assessed in this instance,
[109] All of this is to say that much as FIPPA’s various notice periods, times for submissions, and potential extensions of those times burden the exercise of s. 2(b) rights when it comes to access to Adjudicative Records, on a systemic basis the impairment is minimal. While there may be individual cases of unjustifiable delay and impairment of rights which could lead to an individual remedy, those cases are left for another day.
The appropriate remedy was to interfere with the legislative scheme as little as possible, with "a declaration that the application of ss. 21(1) to (3) and related sections of FIPPA pertaining to the presumption of non-disclosure of “personal information” to Adjudicative Records held by the remaining institutions named in the Notice of Application infringes s. 2(b) of the Charter and is not justified under s. 1."

This ruling did not however apply to all tribunals or all records and documents held by tribunals. To demonstrate the broad applicability of FIPPA, Justice Morgan explored the role and function of administrative tribunals, as an administrative arm and an independent adjudicative body, but noted the lack of distinction in FIPPA of the business functions of government or the adjudicative functions of tribunals.

This challenge was highlighted by the Supreme Court of Canada in Bell Canada v. Canadian Telephone Employees Association,

21 ...Some administrative tribunals are closer to the executive end of the spectrum: their primary purpose is to develop, or supervise the implementation of, particular government policies. Such tribunals may require little by way of procedural protections. Other tribunals, however, are closer to the judicial end of the spectrum: their primary purpose is to adjudicate disputes through some form of hearing. Tribunals at this end of the spectrum may possess court-like powers and procedures. These powers may bring with them stringent requirements of procedural fairness, including a higher requirement of independence...

22 To say that tribunals span the divide between the executive and the judicial branches of government is not to imply that there are only two types of tribunals — those that are quasi-judicial and require the full panoply of procedural protections, and those that are quasi-executive and require much less. A tribunal may have a number of different functions, one of which is to conduct fair and impartial hearings in a manner similar to that of the courts, and yet another of which is to see that certain government policies are furthered. In ascertaining the content of the requirements of procedural fairness that bind a particular tribunal, consideration must be given to all of the functions of that tribunal. It is not adequate to characterize a tribunal as “quasi-judicial” on the basis of one of its functions, while treating another aspect of the legislative scheme creating this tribunal — such as the requirement that the tribunal follow interpretive guidelines that are laid down by a specialized body with expertise in that area of law — as though this second aspect of the legislative scheme were external to the true purpose of the tribunal. All aspects of the tribunal’s structure, as laid out in its enabling statute, must be examined, and an attempt must be made to determine precisely what combination of functions the legislature intended that tribunal to serve, and what procedural protections are appropriate for a body that has these particular functions.
As a result, some of the tribunals in question do not use a FIPPA process at all, reflecting their own unique characteristics, but also attracting deferrence.

The applicant needed to demonstrate that those that did apply FIPPA did so in a constitutional manner. FIPPA does not distinguish between Adjudicative Records and non-adjudicative records, s. 2(b) of the Charter only applies to the former, because access to these documents are compatible with the function of the institution involved, unlike the business documents that would not be subject to the open court principle.

The Dagenais/Mentuck test was evaluated and found to be a reasonable manner in which to do so. Tribunals that do not employ the FIPPA process would not be affected by this ruling, aside from ensuring that the presumptions of openness and disclosure is adhered to for Adjudicative Records.

It's likely that following this ruling, other tribunals will also adopt non-FIPPA procedures, thereby limiting the applicability of this decision. In the meantime, the legislature is likely to amend the unconstitutional aspects of FIPPA within one year. The procedural system of the Act will remain the same, unless further amended, as well as the notice provisions and timelines, if they are applied in a reasonable way.

Justice Morgan noted that given the structure of the legislative scheme, it was likely that significant portions of the Act would be redrafted. Even though the deleterious effects of a presumption against disclosure are real and substantial, any potential chilling effects of complete openness need to be carefully considered, and were unable to be evaluated on the record in this case.

The re-drafting of FIPPA may provide the legislature an opportunity to modernize notions of openness and privacy in a digital era.

Whereas a newspaper may request and publish information about a proceeding online, they may not to the same for any subsequent finding or appeal. The former, however, would be the one that is most readily available to the public, giving rise to a possible right to be forgotten through these scheme, or the subsequent redaction of information from proceedings deemed to be sensitive.