Access to Public Information, Privacy, Data Protection and Retention, Commercial Speech
Hashavim H.P.S. Business Data v. Directorate of Courts
Closed Contracts Expression
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The Supreme Court of Canada held that third parties who apply for judicial review of a decision to disclose information under section 44 of the Access to Information Act may rely on the section 19 privacy exemption, and are not limited to the section 20 confidential business information exemption.
This analysis was contributed by Right2Info.org.
The Canadian Food Inspection Agency (CFIA) received a request under the Access to Information Act (ATI Act) for records pertaining to Heinz. Heinz commenced a judicial review of the CFIA’s decision to release the information under section 44 of the Act, which enables third parties notified by government authorities to apply to the Court for review. Heinz asserted that some records should not be disclosed as they fell into two exemptions under the Act: 1) section 20(1), relating to confidential business information, and 2) section 19(1), relating to private personal information regarding individuals. In response, the Attorney General claimed that third parties requesting review under section 44 are only able to rely on the section 20 exemption, and not the section 19 exemption.
The Court examined the legislative history and statutory meaning of the ATI Act, and read it in conjunction with the Privacy Act. In examining these two Acts, the Court found that the purpose of the ATI Act is to create, in conjunction with the Privacy Act, a coherent scheme that ensures comprehensive access to information, while at the same time consistently protecting individual privacy and personal information. Further, section 19 of the ATI Act as well as provisions of the Privacy Act emphasize that in a situation involving personal information about an individual, the right to privacy is paramount over the right to information unless the law provides differently. Given what the Court saw as Parliament’s intent to protect privacy, and the fact that aside from section 44, there was no mechanism by which a third party can independently request review of a decision to disclose information, the Court found that it was intended that third parties be able to utilize the section 19 privacy exemption. Also, the Court found that the general language and broad terms used in the ATI Act did not confine section 44 review to the section 20 business confidentiality exemption. The fact that third parties are only required to receive notice of possible disclosure when confidential business information is involved does not mean that their subsequent request for review must be limited to that ground.
Finally, the Court rejected the argument that allowing for section 19 challenges by third parties who have received notice under section 20 would provide them with greater rights than other parties who didn’t receive such notice, as section 19 privacy restrictions were intended to be mandatorily followed by the government in all scenarios. Therefore, the Court argued, to deny third parties the right to use section 19 would be contrary to the presumption in favour of privacy and would instead unjustly require them to wait until the possibly private information is released before it can be challenged.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression by allowing the subjects of information requests to assert their rights to privacy over the requester’s right to information.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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