Case Summary and Outcome

The Ontario Superior Court of Justice declared unconstitutional the provisions of the Freedom of Information and Protection of Privacy Act which empowered officials to refuse access to administrative tribunal documents containing “personal information”. The Court ruled that the legislation created a “presumption of non-disclosure” which – in the context of tribunals performing judicial or quasi-judicial functions – infringed the principle of open court set out in section 2(b) of the Charter of Rights and Freedoms. The constitutional challenge had been brought by the Toronto Star newspaper which explained that refusals of access and delays in obtaining decisions on their access requests was hampering their ability to report on matters of public interest. The Court held that although the request process was lengthy it was fair, but that the legislation created a process where “privacy and non-disclosure rather than openness and disclosure is the presumptive rule” and that this limited the principle of open court more than was justifiable. The Court suspended its declaration of invalidity for a period of one year to allow the legislature and the administrative authorities to address the unconstitutionality.

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Facts

In Canada, Ontario’s Freedom of Information and Protection of Privacy Act (the FIPPA) – adopted in 1990 – was an attempt by the government to balance individual privacy rights with public access to documents held by government and wider public sector institutions. The Schedule to the FIPPA General Regulation 440, 1990 listed the administrative tribunals which fell under the definition of “institutions” in the legislation and therefore were bound by its access conditions. These tribunals included nine institutions listed as intervenors in this case: the ARCH Disability Law Centre, HIV & AIDS Legal Clinic Ontario, Income Security Advocacy Centre, Laborers’ International Union of North America, LIUNA Local 183, Information and Privacy Commissioner of Ontario, Canadian Journalists for Free Expression, Ontario Judicial Counsel and Justice for Children and Youth.

The FIPPA established a procedure through which access to documents held by government entities – including official tribunals – could be requested. Section 24(1) of the legislation required that an individual seeking access to a document must “make a formal request, pay a minimum prescribed fee, and provide sufficient information for the record to be identified” (para. 16). Once the application was filed, the head of the institution decided if the request was frivolous and if there was sufficient detail in the request and then forwarded the request to the relevant agency. The head of the institution was required to give written notice within 30 days to the applicant regarding the status of the application or whether the 30-day time period had been extended. The head of the institution was also required to give written notice to any person affected by the requested record and allow representations by the affected persons and the applicant. The institution had ten days to reach a decision following the representations (although this time limit could be extended) (para.17). If an application was denied, an applicant had the right to appeal the decision to the Information and Privacy Commission (the IPC) (para. 18).

Having made various requests to tribunals under the FIPPA which were either unsuccessful or took too long for the documents to be included in news articles, the Toronto Star newspaper believed that the process infringed the open court principle in section 2(6) of the Canadian Charter of Rights and Freedom (the Charter). The Toronto Star provided examples of some of their requests which had taken from “a few days to many months or even years” (para. 19). The newspaper said that in one application to the Ontario Labour Relations Board it had waited for eight months before abandoning the application after not receiving a response, and in another application to the Criminal Injuries Compensation Board it took twelve weeks before their request was answered (para. 20). The newspaper’s concern was the “journalistic imperative of timely disclosure and the newsworthiness of the documents sought” (para. 20).

Another hindrance in obtaining access to the tribunals’ documents was that the section 21(1)-(3) of the FIPPA stated “[an institution] head shall refuse to disclose personal information to any person other than the individual to whom the information relates” (para. 24). Personal information included race, gender, sexual orientation, blood type and fingerprints; confidential correspondence; opinions expressed by the individual; opinions expressed about the individual by third parties; and medical, employment, educational and criminal history of an individual (para. 26). This created a presumption of non-disclosure as the Toronto Star had demonstrated that “decisions about production of records under FIPPA start from the s. 21(1) premise of non-production rather than from the s. 10 premise of production” (para. 28).

The Toronto Star approached the Superior Court of Justice in Ontario, seeking an order that the application of the FIPPA to the administrative tribunals was unconstitutional. The newspaper submitted that because the tribunals act judicially or quasi-judicially they are subject to the open court principle in section 2(b) of the Charter. Section 2(b) protects the right to freedom of expression and states that everyone has the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

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Decision Overview

Judge Morgan delivered the judgment of the Ontario Superior Court of Justice. The Court had to determine whether the FIPPA’s procedure to access documents held by administrative tribunals and the power given to the decision makers to refuse access to personal information were limitations of the open court principle, and if so, whether the limitations were justifiable.

The Toronto Star argued that the application of the FIPPA process to tribunals which performed adjudicative functions violated section 2(b). Their arguments related only to “those documents that qualify as records of tribunal proceedings” which are termed “Adjudicative Records” (para. 8). The Statutory Powers Procedure Act set out the documents that would fall under this category: a document which initiated the proceeding; notices of hearing; interlocutory orders; documentary evidence filed; transcripts of oral evidence given at the hearings; and the decision of the tribunal (para. 8). The newspaper submitted that the terms set out in the FIPPA which governed access to the adjudicative records “burdens the right of access and is thereby contrary to the requirement of open hearings” (para. 13). The Toronto Star also submitted that the FIPPA “contains a presumption of non-disclosure” in respect of many records as it requires that the party seeking access must justify why the documents should be disclosed (para. 23).

The Ontario Attorney General argued that the FIPPA, in fact, fostered openness as it should be seen as a “tool to promote access to information held by public and administrative bodies” (para. 13) and added that there is a need to balance the rights to privacy and public access. The Attorney General acknowledged that many documents that are provided to the media are redacted, but disagreed that requests took as long as the Toronto Star had argued (para. 21).

In holding that the Toronto Star did have standing to bring this constitutional challenge, Morgan noted that the newspaper was “a representative applicant for the entire public – it is the public’s right of access to Adjudicative Records that is in issue” (para. 123).

Morgan examined the history of the open court principle and commented that it was first accepted in the United Kingdom in the Magna Carta and was recognised in Canadian law as early as 1909 in the Gazette Printing Co. v. Shallow (1909), 41 SCR 339 case. The Canadian case of Edmonton Journal v. Alberta (Attorney General) [1989] 2 SCR 1326 confirmed that any discussion and criticism of court proceedings depends on access to information of those proceedings and Morgan emphasized that this case confirmed the continuation of the open court principle under the Charter protections.

Morgan agreed with the Toronto Star that the “personal information exemption is so widely invoked that it has become the rule rather than an exemption to the rule” (para. 28). The Judge noted that Adjudicative Records will almost always fall under the personal information exemption because they “almost inevitably contain personal information identifying the parties” (para. 29). Morgan noted that given the emphasis on protecting personal information many tribunals refuse to disclose the records or heavily redact them before disclosure. The standard for non-disclosure is extremely low, and the head of an institution need only be satisfied that there is a reasonable expectation that an individual could be identified if the documents were disclosed in order to refuse a request for such disclosure. Morgan held that this presumption of non-disclosure “presents a serious obstacle to disclosure of Adjudicative Records” (para. 35).

Morgan commented that although the IPC is empowered to rule that the public interest in disclosure outweighs the purpose of preventing the disclosure of information, this is rarely done (para. 30). The Judge referred to the Canadian Divisional Court decision in John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 OR (3d) 767 (Div Ct) which had held that the “public interest override” could only be applied where there was a “compelling” public interest in disclosure, which must clearly outweigh the purpose of the exemption from disclosure of personal information in general (rather than just in respect of the value of the record sought in the particular case) (para. 31). He explained that this means for a requester to utilise the public interest override it must demonstrate that there is “a public interest in the Adjudicative Record not simply to inform the public about a particular case, but for the larger societal purpose of aiding the public in making political choices” (para. 32).

In examining the relationship of the open court principle to the right to freedom of expression, Morgan quoted the Canadian case of Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1996] 3 SCR 480 which had called the open court principle “one of the hallmarks of a democratic society” and had held that “measures that prevent the media from gathering that information [from Courts], and from disseminating it to the public, restrict the freedom of the press.” (para. 54). The Judge also referred to the Canadian case of Named Person v. Vancouver Sun [2007] 3 S.C.R. 253 which had noted that the open court principle “gains importance from its clear association with free expression” (para. 56). Morgan stressed that these principles “apply to administrative tribunals as well as to courts” and that open access is “not optional or discretionary on the part of the administrative tribunals” (para. 55). With reference to the Canadian Broadcasting Corp. case, Morgan highlighted that because freedom of expression protects listeners as well as speakers, “[a]ccess to exhibits is a corollary to the open court principle” (para. 56).

Morgan examined two issues in determining whether FIPPA infringed section 2(b) of the Charter: the reverse onus imposed on those requesting records and the delay in accessing records. The Judge held that “[t]he very structure of the process that FIPPA puts in place for obtaining records from its designated institutions impinges on the openness principle and s. 2(b) of the Charter” because of the presumption against disclosure (para. 57). Morgan held that the FIPPA’s structure meant that “the openness principle does not apply as of right to the tribunals governed by the FIPPA process” (para. 58). Morgan rejected the Attorney General’s argument that, following the Supreme Court decision in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association [2010] 1 SCR 815 (the CLA case), the Charter does not guarantee a general right of access and that disclosure should only occur when it is required for “meaningful public discussion”. Morgan distinguished the present case from the CLA case on the grounds that the content of the information sought in the two cases was radically different as the CLA case dealt with information subject to solicitor-client privilege and was investigatory rather than adjudicative (paras. 60-61).

Morgan had noted that the FIPPA does not explicitly distinguish between Adjudicative Records and non-adjudicative records and that, therefore, requests for information relating to judicial or quasi-judicial proceedings were treated the same as those relating to administrative proceedings. The Judge had quoted a U.K. case, McPherson v. McPherson [1936] AC 177, in which the House of Lords had noted that “openness to the public is the ‘authentic hallmark of judicial as distinct from administrative procedure’” (para. 40). Morgan highlighted that the CLA case confirmed that the open court principle in section 2(b) is applicable only to documents of an adjudicative nature, and that any other governmental documents are subject to disclosure only when that is “necessary for democratic process” (para. 62). Morgan therefore made the important point that documents that are non-adjudicative are subject to the CLA standard of whether disclosure would be necessary for “meaningful public discussion” but that adjudicative documents are covered by the Charter protection of the open court principle (para. 63).

Accordingly, Morgan held that the reverse onus was an infringement of section 2(b), and stated that “[i]n fashioning a regime that prohibits the disclosure of ‘personal information’ unless the press can establish its justification, FIPPA has it the wrong way around” (para. 65). However, he noted that this did not answer the question of  whether that infringement was justifiable (para. 65).

Morgan acknowledged the importance of timeliness in journalism and referred to the Canadian cases of R v. White 2005 ABCA 435 and R v. Kossyrine 2011 ONSC which had held that a system that protects freedom of expression and freedom of the press must not delay access to information for journalists for longer than is absolutely necessary (para. 67). Morgan noted that it was not necessary for the Toronto Star to have demonstrated that a specific story was not published due to a delay in accessing documents because it can be assumed that an unreasonable delay may impact the ability of the newspaper to publish a story. With reference to the Canadian cases of R v. Domm (1996) 31 O.R. (3d) 540 and Thomson Newspapers Co. v. Canada (Attorney General) [1998] 1 SCR 877, Morgan held that a delay in accessing the documents constitutes an infringement of article 2(b) (para. 71).

Following the test set out in the Canadian case of R v. Oakes [1986] 1 SCR 103, Morgan undertook an analysis under section 1 of the Charter to determine whether the two limits on freedom of expression were reasonable and justifiable in a free and democratic society. The Oakes test examines whether the legislative objective is pressing or substantial; if the means chosen by the legislature are rationally connected to the objective; if the legislation minimally infringes on the right of freedom of expression; and if it is proportional in light of the detrimental effects on the right (para. 73). With reference to the CLA case Morgan held that the objectives of FIPPA to protect both openness and confidentiality are pressing and substantial enough to justify an infringement of 2(b) (para. 78). The Judge also held that there was a rational connection between regulation of access to adjudicative records and FIPPA’s objective to balance privacy rights with freedom of information.

In assessing the minimal impairment aspect of the test, Morgan explained that FIPPA infringed section 2(b) substantially with its presumption of non-disclosure and procedurally with delays its process causes (para. 84). In respect of the substantial limitation, Morgan referred to the Canadian cases of Dagenais v. Canadian Broadcasting Corporation [1994] 3 SCR 835 and R v. Mentuck [2001] 3 SCR 442 and what has become known as the Dagenais/Mentuck case to determine whether a publication ban is permissible (para. 89). This test mirrors the minimum impairment and proportionality factors in the Oakes test but also requires that a ban be necessary to “prevent a serious risk to the administration of justice” and that the “salutary effects of a publication ban outweigh the deleterious effects on the rights and interests of the parties and the public” (para. 89). Morgan noted that the Canadian jurisprudence demonstrates 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” (para. 91). Morgan held that 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)” (para. 95).

In respect of the procedural limitation, Morgan referred to the Attorney General’s argument that the Toronto Star’s proposal of allowing unregulated access to tribunal records would “result in an unwieldy burden on adjudicators” (para. 99) and noted that the Toronto Star may have become frustrated with the bureaucracy of seeking access to documents. However, he said that “bureaucracy in and of itself is not a Charter violation” (para. 105) and accepted that “the various timelines built into the FIPPA system appear designed to make the system operate fairly” (para. 106). Morgan commented that once the reverse onus element of the FIPPA was removed he was hopeful that the delays in response times would be reduced (para. 106). Accordingly, Morgan held that the interference with section 2(b) by the time periods in the FIPPA was minimal (para. 109).

The final element of the Oakes test required Morgan to assess whether the deleterious effects of the presumption against disclosure were proportional to the salutary effects of the FIPPA’s measures to protect privacy. Morgan accepted that the deleterious effects were substantial, and that the privacy afforded to tribunal proceedings “not only has a negative impact on the press but also affects other stakeholders” because, for example, repeat human rights offenders would not be identified and communicated to the public (para. 111). Morgan referred to the Edmonton Journal case which had noted that “for every litigant concerned about the adverse impact of publicity … there may be another equally concerned about public vindication and community support” (para. 112). He also referred to the Canadian case of R v. Keegstra [1990] 3 SCR 697 which had acknowledged that freedom of expression is not merely a means to an end but has value in and of itself (para. 114). Morgan rejected the Attorney General’s argument that a weakening of the privacy protections would prevent litigants from approaching the tribunals (para. 115) and held that the “salutary effects of the presumption of non-disclosure … do not outweigh the deleterious effects of that measure” (para. 116).

In conclusion, Morgan held that the presumption of non-disclosure in the FIPPA was an unjustifiable limitation of section 2(b) (but that the delays caused by procedural framework were justifiable limitations) and that sections 21(1)-(3) which governed the non-disclosure were invalid and inoperable with regards to requests for adjudicative records from the thirteen named institutions and similarly operating institutions. The declaration of invalidity was suspended for one year to allow the legislature and/or the IPC to address the invalidity and create a new process (para. 143).

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