Date: 20060927
Docket: T-2123-05
Citation: 2006
FC 1152
BETWEEN:
ALEX BARTA
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
GIBSON
J.
I. Introduction
[1]
A
complaint of criminal conduct was made against the Applicant, Alex Barta.
Officers of the Royal Canadian Mounted Police (the “RCMP”) investigated. The
Applicant was taken into custody. He was questioned, photographed and
fingerprinted. Witness statements were taken. A report was made to Crown
counsel. Charges were not pursued.
[2]
The
Applicant believes that those who complained to the RCMP and gave witness
statements regarding his conduct, and perhaps others, “maliciously” gave false
information about him to the RCMP. In an effort to pursue a civil remedy
against them, the Applicant made a request pursuant to the Privacy Act
(the “Act”) for personal information held in the records of the RCMP
about himself.
[3]
The RCMP
provided reasonably extensive disclosure to the Applicant but exempted from
disclosure certain other information. In particular, it provided no information
that would serve to identify those who complained and who gave witness
statements against the Applicant.
[4]
The
Applicant complained to the Privacy Commissioner regarding the exemptions made
by the RCMP. In a letter dated October 4, 2005, an officer in the Office of the
Privacy Commissioner upheld the exemptions claimed by the RCMP. That letter
reads in part as follows:
... On May 21, the RCMP disclosed some
information and exempted certain other information under sections 22(1)(a)(i),
22(1)(b), 26 and 27 of the Privacy Act.
Section 22(1)(a) allows a government
institution to withhold personal information if it was obtained or prepared by
an investigative body during the course of a lawful investigation. Unlike other
exempting provisions of the Privacy Act, this provision does not contain
an injury test. In order to claim section 22(1)(a), the RCMP need only
demonstrate that the information at issue is less than 20 years old and that it
was prepared or obtained in the course of a lawful investigation by an
investigative body listed in Schedule III of the Privacy Regulations.
The RCMP is indeed an investigative body for the purposes of the Act
and, in my view, all of the other requirements of this provision have been met
as well. Therefore, I am satisfied that the RCMP had the legal authority to
invoke this exemption at the time it was claimed
Section 22(1)(b) of the Act states
that a government institution may refuse to disclose personal information if
the release of that information could reasonably be expected to be injurious to
the enforcement of any law of Canada or to the conduct of lawful
investigations.
This is a discretionary exemption that
applies to information obtained or prepared in the course of an investigation
and institutions must demonstrate the resulting injury if the information was
disclosed. It has been established to our satisfaction that the RCMP properly
invoked this provision.
Section 26 prohibits a government
institution from disclosing personal information about other individuals except
in certain circumstances. Personal information may be disclosed if the other
individuals give consent, if it is permissible under section 8(2) of the Privacy
Act which authorizes disclosure in limited and specific situations without
consent, or if the information is already publicly available. Having reviewed
the information at issue, I can confirm that it is information about another
individual and not your personal information.
Section 27 of the Privacy Act
permits a federal institution to withhold from disclosure any personal
information which is subject to solicitor-client privilege. This privilege
extends to information prepared by or for a solicitor for the purpose of
providing advice, or for litigation purposes. Our review of the very limited
information that has been withheld under this provision has satisfied me that
it is indeed subject to solicitor-client privilege and that, as the privilege
has not been waived, the RCMP had the authority to refuse you access to it.
Under the circumstances, I am of the view
that you have received all of the personal information to which you are
entitled under the Privacy Act and that RCMP did not contravene the
access rights afforded you under the Act in this case. I have therefore
concluded that this complaint is not well-founded.
[5]
It is this
decision of the Office of the Privacy Commissioner that, under the authority of
section 41 of the Privacy Act, underlies this application.
II. The Statutory Scheme
[6]
Section 2
of the Privacy Act sets out the purpose of the Act. It reads as
follows:
|
2. The purpose of this Act is to extend the
present laws of Canada that protect the privacy of individuals with respect
to personal information about themselves held by a government institution and
that provide individuals with a right of access to that information.
|
2.
La présente loi a pour objet de compléter la législation canadienne en
matière de protection des renseignements personnels relevant des institutions
fédérales et de droit d’accès des individus aux renseignements personnels qui
les concernent.
|
[7]
Subsection
12(1) of the Act, subject to exempting provisions of the Act,
provides a right to an individual to access personal information about himself
or herself.
[8]
Subparagraph
22(1)(a)(i), paragraph 22(1)(b), section 26 and section 27 of the Act
are exempting provisions from the general right of access provided by
subsection 12(1) that were here relied on by the RCMP and that are commented on
in the extract from the letter to the Applicant from the Office of the Privacy
Commissioner referred to above.
[9]
Section 41
of the Act is the authority for this proceeding.
[10]
The text
of subsection 12(1), subparagraph 22(1)(a)(i), paragraph 22(1)(b) and sections
26, 27 and 41 are set out in a schedule to these reasons.
III. The Issues
[11]
In this
application as originally filed, the Respondent was described as “the
Honourable Miss Anne McLellan, Minister of Public Safety and Emergency
Preparedness”. At the opening of submissions on behalf of the Respondent before
the Court, counsel moved to amend the style of cause to substitute the Attorney
General of Canada as the Respondent. The Applicant, representing himself,
expressed no concern and the style of cause was thus amended to the form that appears
on these reasons.
[12]
The
Applicant described the substantive issues in his memorandum of fact and law in
the following terms:
Applicant is entitled to have this
information, as the complainant knowingly and wilfully and with malice
forethought [sic], gave false information to the R.C.M.P.
This information is necessary, as the
applicant has commenced civil proceedings against these individuals. In civil
proceedings, there are no privacy laws.
[13]
In the
memorandum of argument filed on behalf of the Respondent, the issues are more
precisely described as whether information withheld by the RCMP was properly
exempted under subparagraph 22(1)(a)(i) of the Act, and whether it was
reasonable for the RCMP to have exercised its discretion under subparagraph
22(1)(a)(i) of the Act by not disclosing portions of the material that
was provided to the Applicant.
IV. Analysis
A. Standard of Review
[14]
Recently,
in Ahmadzadegan v. Canada (Minister of Public Safety
and Emergency Preparedness , my colleague Justice Blanchard wrote at
paragraphs [21] to [23] of his reasons:
[21] Since Justice Strayer’s
decision in Kelly, the jurisprudence regarding standard of review has
evolved. Determining the standard applicable to the RCMP’s decision not to
disclose personal information to the Applicant now requires the Court to
conduct a pragmatic and functional analysis as first set out in Pushpanathan
v. Canada (Minister of Citizenship and Immigration)…. This approach
involves considering the following four factors:
1) the presence and absence
of a privative clause or a statutory right of appeal;
2) the expertise of
the tribunal relative to that of the reviewing court on the issue in question;
3) the purpose of the
legislation and the provision in particular; and
4) the nature of the
question – law, fact or mixed law and fact.
[22] In Thurlow v. Canada (Solicitor General)…, Justice John O’Keefe
conducted such an analysis in determining the appropriate standard for
reviewing a decision of the RCMP to exempt information under the discretionary
provisions of the [Privacy] Act, including subparagraph 22(1)(a)(i). With
regards to the first type of decision as stated by Justice Strayer in Kelly,
above – whether the requested information falls within a category of exemption
– Justice O’Keefe held that, after weighing all the factors set out in Pushpanathan,
the appropriate standard of review is correctness. With regards to the second
type of decision – whether the RCMP should exercise its discretion to release
information even though it falls within an exemption category – Justice O’Keefe
held that the appropriate standard of review is that of reasonableness simpliciter.
[23] Thurlow and the present
case before the Court involve decisions by the RCMP to deny an access request
on the ground of paragraph 22(1)(a). I agree with Justice O’Keefe’s assessment
of the applicable standard of review in Thurlow. For the purposes of
this case, I will therefore adopt the analysis and conclusions reached by
Justice O’Keefe regarding the applicable standard of review.
[citations omitted]
[15]
On the
facts of this matter, in addition to subparagraph 22(1)(a)(i) of the Act,
paragraph 22(1)(b) and sections 26 and 27 of the Act have been relied on
as bases for exemption. Each of those provisions, like subparagraph 22(1)(a)(i),
provides for discretion as to whether or not the exemption should be applied.
Thus, then, I am satisfied that in reviewing exemptions under those provisions,
as with a review of exemptions under subparagraph 22(1)(a)(i), the appropriate
standard of review on whether the requested information falls within the
category of exemption is correctness and, as to the exercise of discretion
whether or not to release the information assuming it falls within the category
of exemption is reasonableness simpliciter.
B. Propriety of the Exemptions Applied
[16]
Subsection
46(1) of the Act provides authority to the Court in a proceeding such as
this to “…take every reasonable precaution…” to avoid the inappropriate
disclosure of the information that is at issue. In this matter, leave was
granted to the Respondent to file a confidential affidavit with the Court
disclosing the information at issue in the full context of that information.
[17]
Following
the hearing of this application, this judge reviewed in detail the exempted
information in its context, having had the benefit of representations by the
Applicant on his own behalf and by counsel for the Respondent. Against that
review, and taking into account, in particular, the representations of counsel
that by far the greater part of the information exempted is fully described in
subparagraph 22(1)(a)(i) while only lesser portions of the information withheld
fall within the ambit of paragraph 22(1)(b) and sections 26 and 27 of the Act,
against a standard of review of correctness, I conclude that it was open to the
RCMP to consider the exercise of discretion conferred on it by those provisions.
[18]
Further, against
a standard of review of reasonableness simpliciter, I am satisfied that the
discretion provided was, in each case, reasonably exercised bearing in mind the
purpose of the Privacy Act as enunciated in section 2 of that Act.
[19]
Having
reached the foregoing conclusions, it follows that the decision of the Office
of the Privacy Commissioner to uphold the exemptions applied by the RCMP was
open to it.
V. Conclusion
[20]
Whatever
might be the merits of the Applicant’s concern that the complaint made to the
RCMP which underlies this matter “…knowingly and wilfully and with malice
forethought [sic] …” involved false information, and I certainly make no
finding in that regard since that issue is not before this Court on this
application, the Privacy Act, on the facts of this matter, does not
provide to the Applicant a right to obtain information from the RCMP that would
identify the complainant and those who gave witness statements in support of
the complaint. The Applicant’s allegation that “In civil proceedings there are
no privacy laws” is not supported by any authority that was put before the
Court. The exercise of discretion by the RCMP that is here at issue was
entirely open to it.
[21]
The
application will be dismissed with costs payable by the Applicant to the
Respondent.
“Frederick
E. Gibson”
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