Access to Public Information
Company Doe v. Public Citizen
Closed Expands Expression
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The Superior Court of Justice in Ontario held that the refusal to disclose information about campaign contributions, including names, addresses and phone numbers of contributors in electronic format was unreasonable, particularly given the importance of furthering the democratic process through public scrutiny and the minimal intrusion on privacy.
This case analysis was contributed by Right2Info.org
Phinjo Gombu, a journalist with a Toronto newspaper, requested electronic copies of campaign contribution records from the City Clerk after sorting through thousands of paper records. The paper records had been made public pursuant to section 88(5) of the Municipal Elections Act (MEA), but the electronic records were created by the Clerk to more efficiently distribute contribution rebates as required by MEA regulations.
After the City refused disclosure, Gombu appealed to the Assistant Information and Privacy Commissioner. The Commissioner upheld the City’s decision based on three grounds: (1) the electronic records are not public records under the MEA because they were not prepared by the Clerk “under this Act”; (2) disclosure would constitute an “unjustified invasion of privacy” under section 14(1)(f) of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) because the electronic versions contain additional information (telephone numbers); and (3) the public interest override in section 16 of the MFIPPA does not apply.
Gombu then sought judicial review in the Ontario Superior Court of Justice.
Judge McCombs delivered the judgment, holding that the decision of the Commission was unreasonable and ordering disclosure of the electronic records.
Addressing each of the Commissioner’s arguments, the Court applied a reasonableness standard to determine if the Commissioner’s decisions were “clearly wrong”. [paras. 10, 18-19] First, while the Commissioner argued that the electronic records were not prepared “under the Act” pursuant to section 88(5) of the MEA because they were not required to be prepared by the Clerk, the Court reasoned that the issue is not whether preparation is required but whether the records are, in fact, prepared “under the Act”. [paras. 12-15] Because the records were prepared by the Clerk to facilitate duties mandated by MEA regulations, they were prepared “under the Act”. [para. 16]
Second, the Court stressed that in evaluating the reasonableness of the Commissioner’s MFIPPA privacy concerns, it is essential to consider the context in which the legislation is interpreted. [paras. 20-21] Because the overarching purpose of access to information legislation is to ensure the integrity of the democratic process and the accountability of candidates for public office, and because the addition of telephone numbers to the electronic records is a “minimal further intrusion” considering names and addresses are already available, the Court concluded that it is unreasonable to place such minimal intrusion ahead of furthering public accountability in the political process. [paras. 21-28]
Finally, the Court applied the same reasoning in evaluating the Commissioner’s argument that the public interest override does not apply: in light of the compelling public interest in disclosure balanced against minimal further intrusion of privacy, the Commissioner’s argument was deemed unreasonable and the records were ordered to be disclosed. [paras. 29-32]
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