Canada (Information Commissioner) v. Canada (Chairperson, Immigration and Refugee Board), docket T-2052-97

Date: 19971224

Dockets: T-908-97

T-911-97

T-2052-97

BETWEEN:

     THE INFORMATION COMMISSIONER OF CANADA

     Applicant

     - AND -

THE PRIVACY COMMISSIONER OF CANADA

Applicant

- AND -

     THE CHAIRPERSON OF THE IMMIGRATION

     AND REFUGEE BOARD

     Respondent

     REASONS FOR ORDER

RICHARD J.:

[1]      These proceedings arise out of two applications brought under the Access to Information Act¹ (Docket T-908-97 and Docket T-911-97), and one application brought under the Privacy Act² (Docket T-2052-97)³. They challenge the validity of the decision of the Chairperson of the Immigration and Refugee Board to exempt from disclosure portions of a report prepared for the Board and notes containing information obtained from employees of the Board in preparation of the report.

[2]      As the purpose and principles of the relevant portions of the Privacy Act mirror those of the Access to Information Act; and that the evidence adduced in each application applies to the other applications, they will be analyzed together.

Background

[3]      Following the publication of two articles in the Vancouver Sun, which purported to be based on incidents that occurred during in camera hearings of the Refugee Division of the Board, the Chairperson of the Board agreed that a person independent of the public service be engaged to investigate the leak giving rise to the newspaper articles. Catherine Bruce, a Vancouver lawyer specializing in labour relations, including fact finding exercises, mediation and arbitration, was retained by the Board.

[4]      Ms. Bruce was mandated to produce a report to the Board on the results of a fact finding exercise on the following matters:

a)      [T]he identification of circumstances surrounding the breach of confidentiality resulting from the leaking of information to Vancouver Sun reporter David Hogben.

b)      [T]he identification of the person or persons responsible and/or involved in this breach of confidentiality.

c)      [T]he identification of measures which would assist in eliminating or reducing leaks of confidential information in the future.4

[5]      Prior to conducting individual interviews with employees of the Board, Ms. Bruce informed them that she would keep her notes of the interview in strict confidence and that the Board would only receive her report.

Mr. Brunet:      Is it your experience that other proceedings can ensue, legal proceedings can develop from there to put the management in a position to justify whatever action or disposition they took against the employee to discipline the employee ?

Ms. Bruce:      Well, I think there are about three questions in there and I will answer them one at a time. In an investigation such as this it has been my experience that if disciplinary action is to arise, or has arisen afterwards, and a subsequent -- in a subsequent proceeding, neither the report of the investigator nor the notes of the investigation is admissible in the hearing. Secondly, it was a specific agreement with Mr. Kornichuk and I that my notes would remain my property. They would not be disclosed to anyone in management at the board, and that the sole paper that the employer would receive would be my report. And that was based upon our belief that the notes had to remain confidential in order to secure the full co-operation of the employees in the investigation, because it was purely voluntary, and it was voluntary because of the prior history of the labour relations problems that had surfaced in the board over the last five or six or seven years. And that made me comfortable in conducting the investigation in the way that I chose to do it, that is without a list of questions, without providing the summaries of my notes to the other participants in the investigation, and in effect listening to the employees vent about their general and overall problems in the workplace, so that I could determine how best to prevent these kinds of problems from happening in the future5. [Emphasis added.]

[6]      The report that followed outlines the responsibilities of the Members conducting the hearings and the responsibilities of the refugee hearing officers preparing evidence concerning the claims. The report also outlines the past events exerting on the dynamics of the Members and the refugee hearing officer unit.

[7]      Ms. Bruce outlined the various conflicting philosophies adopted by the two groups. She concluded as follows:

After carefully reviewing the information gathered during this investigation, I am not satisfied that there is sufficient direct or circumstantial evidence to establish with any certainty who leaked the information to the Vancouver Sun reporter David Hogben. Although some members of the RHO [refugee hearing officer] unit were concerned about the incidents, as well as management's apparent failure to take steps to deal with the perceived inappropriate conduct on the part of the Members involved, there is no cogent evidence linking any of these individuals to the leak of information to the press6.

[8]      However, once the investigation was completed, when Ms. Bruce was asked by the Board to submit her notes, she provided them right away with her entire file.

Mr. Brunet:      It's only later that you realized that the Privacy Act apply [sic] and these documents were -- you had to provide the notes to the I.R.B. [Immigration and Refugee Board], right ?

Ms. Bruce:      At the conclusion of the investigation after the report was completed and provided to the board, sometime later I was advised that I must submit my file to the board, and I did that. As far as the legal issues are concerned, I imagine those are still to be determined7.

[9]      The disclosure of material generated by Ms. Bruce during her investigation was requested through two access to information requests and two privacy requests for personal information gathered. The first access to information request was made on January 9, 1996 by Mr. Velten Pilger, a refugee hearing officer with the Vancouver Office of the Board. His request reads as follows:

[A]ny records, information contained in its original form or any copy of correspondence, memoranda, forms, directives, reports, drawings, diagrams, cartographic and architectural items, pictorial and graphic works, photographs, films, microforms, sound recordings, video tapes, video disks and video cassettes and punched, magnetic and other cards, paper and magnetic tapes, magnetic disks and drums, holographs, optic sense sheets, working papers, and any other documentary material or electro-magnetic medium, regardless of physical form and characteristics concerning a Fact Finding Mission undertaken by the Immigration and Refugee Board. I would refer but not limit your search to an e-mail dated 18Dec95 titled Fact Finding Exercise sent by Dave Kornichuk to the staff of IRB Vancouver and any and all information as defined as a "RECORD" in ATIP legislation related to this investigation. The following persons are sources of information Gale Green Davies, Dave Kornichuk, Lynn Gates, J.G. Fleury, J. Frecker, M.A. Lalonde, Mumtaz Rana, Douglas Hogg, J. Sharpe, Elfreda Ramsbottom, Sharon Fleming, Layne Daggett, Enrique Torres, Sheila Tenasco, David Austin and anyone else considered an interview candidate in this investigations/ Fact Finding Mission. Particular attention should be given to the source Catherine Bruce in Vancouver. Ms. Bruce has been hired as a lawyer from outside the Government to complete the investigation and has considerable information defined in "record" in the ATIP legislation. Any diaries of the above noted sources should also be searched. [...]8.

[10]      The second access to information request was made on February 16, 1996, by Mr. Robin Kers, an employee of the Board and the National Coordinator for the Canada Employee Immigration Unit. His request reads as follows:

All records related to the Administrative Investigation conducted in Vancouver by Catherine Bruce including all records accumulated by Ms. Bruce and any staff, supervisor, manager or Board Member employed by or appointed to the IRB related to the subject investigation including the final report and all notes. [...]9.

[11]      The first privacy request for personal information gathered was made on January 10, 1996 and on March 4, 1996, by Mr. Pilger. His request reads as follows:

Please provide any information concerning me obtained, or gathered by Ron Leach, Catherine Bruce, or Lynn Gates. In relation to the Administrative investigation concerning leaks to the media. Thankyou [sic] in advance10.

[12]      The second privacy request for personal information gathered was made on May 22, 1996 by Mr. Kers for Ms. Julie Paul, a claims hearings officer with the Vancouver Office of the Board. Her request reads as follows:

1.      All records in the following information banks: 901, 903, 904, 905, 906, 907, 909, 910, 911, 912, 915, 917, 919, 921, and 802;

2.      All records held by the following individuals and bearing her name:

        

         - Ron Leach

         - Gale Green-Davies

         - D. Lynn Gates

3.      All records including notes from the Bruce Investigation bearing her name11.

[13]      The Chairperson of the Board concluded that seven portions of the report and interview notes should not be disclosed for the following reasons:

a)      The investigator had promised employees of the Immigration and Refugee Board whom she interviewed that she would not disclose to the Board her notes of the interview.

b)      [...] [The Chairperson of the Board] believed that it is of fundamental importance to good labour relations within the Board that the Board maintains the promise of confidentiality made by Catherine Bruce to employees of the Board.

c)      That, should the Board not honour the undertaking of confidentiality by Catherine Bruce, relations with the employees would suffer to the point where [...] [the Chairperson of the Board] would reasonably expect the release of the confidential information to be injurious to the Board's ability to conduct similar investigations in the future12.

[14]      The Chairperson of the Board did not read the interview notes before refusing to disclose the personal information contained therein.

[15]      The record discloses that following a harassment complaint against Mr. Pilger by a refugee hearing officer and subsequent harassment complaints by Mr. Pilger against three employees of the Board, the Bruce report was disclosed in its entirety to both the investigator of the Public Service Commission, Mr. Bettencourt, and to Mr. Pilger pursuant to section 7.1 of the Public Service Employment Act¹³.

[16]      Following the requests for the complete disclosure of the report and interview notes, recommendations were made by the Information Commissioner. They read as follows:

1.      Personal information about the requesters contained in the consultant's notes and in the consultant's final report should be disclosed. Any personal information about individuals other than the requesters and complainant should, of course, be protected under subsection 19(1) of the Act.

2.      Additional information should be disclosed from the final report which is clearly in the public domain, supplied by the complainant or disclosed in the preliminary report of the related Public Service Commission investigation.

3.      The portions of the final report describing the incidents which occurred during the two hearings should be disclosed, with severing performed in accordance with the approach taken in the IRB request file 140-688-9596 (i.e., pages 217-253).

4.      Ancillary references in the final report should be disclosed (exemptions applied under paragraph 16(2)(c) and section 17)14.

[17]      Following the privacy requests for personal information gathered in the report and the interview notes, the Privacy Commissioner stated as follows:

In representations to my investigator, your officials stated that the consultant gave a promise of confidentiality to the individuals she interviewed and the Board is of the view that future investigations may be jeopardized by the disclosure of this information. My review leaves me unconvinced that there is a reasonable probability of injury to the enforcement of a law of Canada or a province, or to the conduct of future investigations if the Board used its portion of the documents about which I have specific concerns have been provided to your Privacy Coordinator, Mr. S. Poggione15.

[18]      The Chairperson of the Board refused to comply with the recommendations made by both the Information and the Privacy Commissioners because she believed that the release of the records at issue would be injurious to the conduct of future investigations. In her affidavit sworn July 17, 1997, the Chairperson of the Board stated :

73.      Nonetheless, I agree with Ms. Bruce's assessment that giving such an undertaking of confidentiality was a condition precedent to any useful inquiry into the circumstances of this suspected leak.

74.      The continued protection of the confidence in the case of this investigation is necessary to protect the Board's ability to conduct other such investigations in the future. Since the success of such an investigation depends on the desire of the employees involved to cooperate, their confidence is imperative. Should employees conclude that the Board is unwilling to or incapable of honouring its commitment to protect information disclosed in confidence in the course of an internal investigation, their willingness to cooperate would evaporate, and I would be impaired to discharge the responsibilities delegated to me under the Immigration Act and the Financial Administration Act.

[...]

79.      I decided that the interview notes should not be disclosed because I reasonably expected that to disclose them would injure the Board's ability to conduct informal investigations similar to the investigation conducted by Ms. Bruce. I have discussed the basis for my conclusion above.

80.      I also considered whether the Board could sever portions of the interview notes and disclose them. I decided that severance was not possible in the circumstances, because of the nature of the undertaking of confidentiality. The confidence must, to produce its intended effect, include the identity of the employees interviewed and the content of the interview. To partially disclose would have the effect of reneging on the undertaking. Conformity with the undertaking to confidentiality requires that all of the notes exempted, without exception. I therefore conclude that severance of information in the notes was not a reasonable course of action.

[...]

82.      I decided to sever information from the Bruce report for three reasons. I will address them separately.

[...]

84.      I relied on paragraph 16(1)(c) of the Access to Information Act to sever the first group of passages from the Bruce report. These passages of the Bruce report contain information communicated by those employees to Ms. Bruce, in confidence.

85.      Disclosing these passages would therefore breach the spirit of the undertaking of confidentiality. I therefore concluded that these passages should not be disclosed, on the same basis of the interview notes.

[...]

87.      I considered that, under subsection 19(1) of the Access to Information Act, I had a duty to sever this second group of passages from the Bruce report. In the context of the report, I considered that these passages contained personal information as defined in section 3 of the Privacy Act.

88.      I also considered the possibilities mentioned in subsection 19(2) of the Access to Information Act but concluded that none of these possibilities applied to the information contained in the second group of passages.

[...]

90.      I concluded that this third group of passages contained information which could reasonably be expected to facilitate the commission of an offense by disclosing information on the vulnerability of the system adopted by the Board to protect information received during in camera hearings of the Refugee Division.

91.      The hearings of the Refugee Division at issue were in camera. As explained above, hearings of the Refugee Division are held in camera because the information received during those hearings has the potential, if made public, for endangering the life, liberty and security of claimants or other persons.

92.      I have therefore directed the severance of the third group of passages, on the basis of paragraph 16(2)(c) and section 17 of the Access to Information Act.

93.      I directed that the passages from the requested records containing personal information be severed.

[...]

95.      I concluded that, under subsection 19(1) of the Access to Information Act, I had a duty to sever this type of information. I considered that these passages contained personal information as defined in section 3 of the Privacy Act.

96.      I also considered the possibilities in subsection 19(2) of the Access to Information Act but concluded that none of these possibilities applied to the information contained in these passages16.

     Issues

[19]      In the applications brought under the Access to Information Act (Docket T-908-97 and Docket T-911-97), the issue is whether the records withheld, that is the Bruce report and the interview notes, contain information, the disclosure of which could reasonably be expected to be injurious to the conduct of lawful investigations within the meaning of paragraph 16(1)(c).

[20]      Paragraph 16(1)(c) reads as follows:

16. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains      [...]      (c) information the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information      (i) relating to the existence or nature of a particular investigation,      (ii) that would reveal the identity of a confidential source of information, or      (iii) that was obtained or prepared in the course of an investigation; or [...]

16. (1) Le responsable d'une institution fédérale peut refuser la communication de documents :      [...]      c) contenant des renseignements dont la divulgation risquerait vraisemblablement de nuire aux activités destinées à faire respecter les lois fédérales ou provinciales ou au déroulement d'enquêtes licites, notamment :      (i) des renseignements relatifs à l'existence ou à la nature d'une enquête déterminée,      (ii) des renseignements qui permettraient de remonter à une source de renseignements confidentielle,      (iii) des renseignements obtenus ou préparés au cours d'une enquête; [...]

[21]      The Information Commissioner had also invoked paragraph 16(2)(c) and section 17 of the Access to Information Act, but as of the date of the hearing, these were no longer in issue by reason of the release of information by the Chairperson of the Board. The record discloses that the Chairperson of the Board, after taking its initial position to refuse disclosure, did on four occasions release portions of information to the requesters.

[22]      In the application brought under the Privacy Act, (Docket T-2052-97) the issue is whether the personal information withheld from the Bruce report and the interview notes contain information, the disclosure of which could reasonably be expected to be injurious to the conduct of lawful investigations within the meaning of paragraph 22(1)(b).

[23]      Paragraph 22(1)(b) reads as follows:

22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1)           [...]      (b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information      (i) relating to the existence or nature of a particular investigation,      (ii) that would reveal the identity of a confidential source of information, or      (iii) that was obtained or prepared in the course of an investigation; or [...]

22. (1) Le responsable d'une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) :      [...]      b) soit dont la divulgation risquerait vraisemblablement de nuire aux activités destinées à faire respecter les lois fédérales ou provinciales ou au déroulement d'enquêtes licites, notamment :      (i) des renseignements relatifs à l'existence ou à la nature d'une enquête déterminée,      (ii) des renseignements qui permettraient de remonter à une source de renseignements confidentielle,      (iii) des renseignements obtenus ou préparés au cours d'une enquête; [...]

[24]      This portion of the Privacy Act mirrors paragraph 16(1)(c) of the Access to Information Act.

     Analysis

     A.      Undertaking of Confidentiality

[25]      Ms. Bruce informed the employees of the Board that she would keep her notes of the interview in strict confidence and that the Board would only receive her report. Her undertaking was misconceived. The undertaking of confidentiality between the interviewer and the interviewees was conditional on the notes remaining under the control and possession of the interviewer. However, the interviewer honoured the Board's request to remit the interview notes without objection. Also, appendix "F" of Ms. Bruce's contractual agreement with the Board reads as follows:

Privacy Requirement

The provisions of the Privacy Act, which include restrictions on the collection, use, disclosure, retention and disposal of personal information, will be applied in this contract17.

[26]      The assurances given by Ms. Bruce cannot of themselves override specific provisions of the relevant statutes.

     B.      Evidentiary Burden

[27]      Pursuant to section 48 of the Access to Information Act, the burden rests upon the head of the government institution concerned to establish that it is authorized to refuse to disclose a record requested.

[28]      Pursuant to section 47 of the Privacy Act, the burden rests upon the head of the government institution concerned to establish that it is authorized to refuse to disclose a record containing personal information.

C.      Role of the Purposive Clauses in Interpreting Exemption Provisions Contained in the Access to Information Act and the Privacy Act

[29]      The Access to Information Act must be guided by the purposive clause, subsection 2(1) reads as follows:

2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.

2. (1) La présente loi a pour objet d'élargir l'accès aux documents de l'administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.

[30]      When Parliament explicitly sets forth the purpose of an enactment, it is intended to assist the Court in the interpretation of the Act.

[31]      The Access to Information Act's purpose is to provide greater access to government records. In Dagg v. Canada (Minister of Finance)¹⁸, Mr. Justice LaForest stated:

Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable. Consequently, while the Access to Information Act recognizes a broad right of access to "any record under the control of a government institution" (s. 4(1)(b)), it is important to have regard to the overarching purposes of the Act in determining whether an exemption to that general right should be granted.

[32]      Since subsection 4(1) confers a general right of access, exemptions must be specific and limited. It is clear that Parliament intended exemptions to be interpreted strictly. Access to information should be the normal course, exemptions should be the exception and should be confined to those specifically set out in the statute. In Mailsin Industries Limited v. Canada (Minister for Industry, Trade and Commerce)¹⁹, Mr. Justice Jerome stated:

It should be emphasized however, that since the basic principle of these statutes is to codify the right of public access to Government information two things follow: first, that such public access ought not be frustrated by the courts except upon the clearest grounds so that doubt ought to be resolved in favour of disclosure; second, the burden of persuasion must rest upon the party resisting disclosure whether, as in this case, it is the private corporation or citizen, or in other circumstances, the Government.

[33]      To achieve the purpose of the Act, one must choose the interpretation that least infringes on the public's right of access. In Rubin v. The Minister of Transport²⁰, Mr. Justice McDonald stated:

In my opinion, therefore, all exemptions must be interpreted in light of this clause. That is, all exemptions to access must be limited and specific. This means that where there are two interpretations open to the Court, it must, given Parliament"s stated intention, choose the one that infringes on the public"s right to access the least. It is only in this way that the purpose of the Act can be achieved. If follows that an interpretation of an exemption that allows the government to withhold information from public scrutiny weakens the stated purpose of the Act.

[34]      The general preamble as contained in section 2 of the Privacy Act, has the same general effect as subsection 2(1) of the Access to Information Act. The Privacy Act must also be guided by the purposive clause. Section 2 of the Privacy Act 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 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.

[35]      The Privacy Act's purpose is to provide access to personal information maintained by government. The rules of interpretation described above also apply in this instance. The necessary exceptions to the access must be strictly construed²¹.

[36]      In Reyes v. Canada (Secretary of State)²², Mr. Justice Jerome stated:

It must also be emphasized that since the main purpose of these "access to information" statutes is to codify the right of public access to government information, two things follow: first, such public access ought not be frustrated by the Courts except upon the clearest of grounds so that doubt ought to be resolved in favour of disclosure; second, the burden of persuasion must rest upon the party resisting disclosure, in this case the government.

D.      Reasonable Expectation of Probable Harm: The Appropriate Scope of Paragraph 16(1)(c) of the Access to Information Act and paragraph 22(1)(b) of the Privacy Act

[37]      In order to justify the refusal to disclose information pursuant to the provisions of paragraph 16(1)(c) of the Access to Information Act or paragraph 22(1)(b) of the Privacy Act, the head of the government institution must demonstrate that there is a reasonable expectation of probable harm from disclosure to the conduct of lawful investigations.

[38]      In Driedger on the Construction of Statutes²³, the author states:

There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking this into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just.

[39]      Given the purposive clause, the Court must choose the interpretation that accords best with the purpose of the Act, that is one that least infringes on the public's right to access to information. In Canada Packers Inc. v. Canada, (Minister of Agriculture)²⁴, Mr. Justice MacGuigan stated:

[...] The words-in-total-context approach to statutory interpretation which this Court has followed in Lor-Wes Contracting Ltd. v. The Queen, [1986] 1 F.C. 346; (1985), 60 N.R. 321 and Cashin v. Canadian Broadcasting Corporation, [1988] 3 F.C. 494 requires that we view the statutory language in these paragraphs in their total context, which must here mean particularly in the light of the purpose of the Act as set out in section 2. Subsection 2(1) provides a clear statement that the Act should be interpreted in the light of the principle that government information should be available to the public and that expectations to the public's right of access should be "limited and specific". With such a mandate, I believe one must interpret the exceptions to access in paragraphs (c) and (d) to require a reasonable expectation of probable harm. [Original underline.]

[40]      In the Rubin case, it was noted that both versions of a bilingual statute have equal authority and authenticity in construing the meaning of a given provision²⁵. The expression "conduct of lawful investigations" is translated in french by "déroulement d'enquêtes licites". Although the word "conduct" has no temporal nuance, the word "déroulement" has a temporal nuance which can be interpreted as development, progress or unfolding. It follows that the scope of paragraph 16(1)(c) is concerned with the unfolding of a particular, ongoing investigation, rather than the unfolding of a general investigative process.

[41]      Because other sections of the Act use the future tense when they speak to the future, if Parliament had wanted paragraph 16(1)(c) to refer to the future, such as future investigations, then it would have specified so by using the future tense. To apply to the future, the exemption must be limited, specific and known.

[42]      The word refers to something specific about the development and progress of a particular investigation, not an investigative process. When the word "investigation" is used in the plural, it means that more than one investigation concerning the same event may be undertaken and be affected by disclosure.

[43]      The reasonable expectation of probable harm implies a confident belief. There must be a clear and direct link between the disclosure of specific information and the harm alleged. The Court must be given an explanation as to how or why the harm alleged would result from the disclosure of specific information. The more specific and substantiated the evidence, the stronger the case for confidentiality. It cannot refer to future investigations generally.

[44]      In Rubin v. The Minister of Transport²⁶, Mr. Justice McDonald stated:

Thus, in my opinion, subsection 16(1)(c) should be interpreted in the following manner: the word conduct refers to something specific about the development or progress of a particular investigation. It does not refer to the general investigative process. The use of investigations in the plural simply means that more than one investigation concerning the same event may be undertaken and may possibly be affected by the disclosure of information. As for future investigations, it is possible that information may affect an investigation that has not yet been undertaken. [...] Thus, one can not refuse to disclose information under s. 16(1)(c) on the basis that to disclose would have a chilling effect on future investigations. [...] I believe it is quite possible, and in line with this section, to protect past information that will have an effect on an investigation currently underway. However, again, the investigation to be affected must be specified, limited to that one investigation and it must be in progress or about to be undertaken.

[45]      Where the harm foreseen by release of the records sought is one about which there can only be mere speculation or mere possibility of harm, the standard is not met. It must have an impact on a particular investigation, where it has been undertaken or is about to be undertaken. One cannot refuse to disclose information under paragraph 16(1)(c) of the Access to Information Act or paragraph 22(1)(b) of the Privacy Act on the basis that to disclose would have a chilling effect on possible future investigations.

[46]      The evidence of expectation of probable harm is set forth in the following affidavits.

a)      In her affidavit sworn July 17, 1997, Ms. Nurjehan Mawani, Chairperson of the Immigration and Refugee Board, states:

18.      Of concern to the present applications for review are the exemptions I decided should be made to protect the undertaking of confidentiality given by Ms. Bruce to the person she interviewed. I decided that the Board had to continue to honour the undertaking. I concluded that Ms. Bruce could not have conducted her investigation without the cooperation of persons she interviewed. The Board was not prepared to continue to honour that commitment, I further concluded that it could reasonably be expected to lose the cooperation of its employees, not only in relation to events investigated by Ms. Bruce, but also in respect of any similar investigations which he Board might conduct in the future. Based on this assessment, I decided that the Board should exempt all of the notes taken by Ms. Bruce during interviews conducted under protection of her undertaking of confidentiality, as well as information contained in her report that could, on a reasonable assessment, lead to the identification of Ms. Bruce's sources of information27.

b)      In his affidavit sworn July 21, 1997, Mr. Dave Kornichuk, Acting Regional Director of the Pacific Region of the Immigration and Refugee Board, states

33.      [...] [T]he willingness of employees to cooperate in the investigation would depend on the extent to which employees could be assured that information they provided would be kept in confidence28.

c)      In her affidavit sworn July 22, 1997, Ms. Bruce states:

12.      In my experience, fact finding exercises conducted by an employer, either through its management representatives or an independent consultant, are rarely successful where the employees lack sufficient trust in the process. A promise with regard to the confidentiality of information disclosed is invariably the key to establishing the necessary trust and confidence of employees. This is particularly true where the investigation concerns private or sensitive matters that, if disclosed, could cause embarrassment for those employees who agreed to participate in the investigation.

13.      In my view, if an employer violates the promise of confidentiality given the employees during an investigation, it will undoubtedly create a climate of distrust in the work place. Disclosure of confidential information will also lead the employees to believe the employer has treated them unfairly. In these circumstances, it is unlikely employees will be willing to cooperate in the future investigations in regard to the accomplishment of the employer's objectives in general.

[...]

16.      The willingness of employees to come forward and report suspected misconduct depends on a climate of mutual trust in the work place. The disclosure of information obtained in a confidential investigation breaches the trust of those employees who volunteered to participate and will have a negative impact on the employers ability to conduct similar investigations in the future. Further, it will jeopardize the employer's ability to secure the trust and cooperation of employees in general29.

d)      In his affidavit sworn July 24, 1997, Inspector Dan Killam, Inspector for the Royal Canadian Mounted Police, states:

14.      Based on my experience of investigations, whether final or informal, I am of the opinion that disclosing information received in confidence, in breach of a promise to keep the information confidential, is particularly detrimental to the ability of the investigator to conduct similar investigations in the future30.

e)      In his affidavit sworn July 25, 1997, Mr. Lynn Gates, Regional Director of the Pacific Region to the Immigration and Refugee Board, states:

5.      I also conclude that disclosing the interview notes now would seriously compromise my ability to conduct similar investigations in the future. Our employees view the undertaking of Ms. Bruce as a promise made by the Board. If the Board does not keep its words, our employees will feel betrayed. Given the potential for embarrassment created by complete candour, I would expect the employees to refuse their cooperation or to become very guarded in their interviews31.

[47]      There is no evidence showing that, unless portions of the Bruce report or the interview notes containing information obtained from employees of the Board in preparation of the report are not disclosed, it would reasonably be injurious to the conduct of a specific lawful investigation that has been undertaken or is about to be undertaken. Paragraph 16(1)(c) of the Access to Information Act or paragraph 22(1)(b) of the Privacy Act should only be applied where there is specific and significant evidence of injury to a specific lawful investigation that has been undertaken or that is about to be undertaken. The onus is on the head of the government institution to establish on a balance of probabilities that there is a reasonable expectation of probable harm to disclose the specific information.

[48]      In this instance, the head of the government institution has not clearly and directly demonstrated its case to refuse disclosure. The perceived injury or prejudice is speculative. There is no evidence of probable harm to any investigation that has been undertaken or is about to be undertaken.

[49]      Given my decision on the interpretation of paragraph 16(1)(c) of the Access to Information Act and paragraph 22(1)(b) of the Privacy Act, I find it unnecessary to deal with the issue concerning the evidentiary and threshold requirements necessary to prove reasonable expectation of probable harm.

     Conclusion

[50]      The evidence of the Chairperson of the Board and the Board's other witnesses indicates a well-intentioned attempt to avoid risk rather than a reasonable expectation of probable harm from disclosure.

[51]      The Chairperson of the Board made an error of law that warrants intervention by this Court.

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[52]      I conclude that the head of the government institution did not have reasonable grounds to withhold disclosure of the records sought in this case.

[53]      This Court orders that the applications in Docket T-908-97 and T-911-97 are allowed and the information requested is to be released subject to any exemptions required by section 19 of the Access to Information Act.

[54]      This Court refers back to the head of the government institution the matter of the interview notes, to determine, pursuant to section 19 of the Access to Information Act which personal information contained in those notes should not be released.

[55]      The head of the government institution is directed to conduct such inquiry within 60 days of the date of this order and if there is disagreement with any decision taken by the heads of the government institution, the Information and the Privacy Commissioners may refer the matter to this Court within 30 days of notification of such decision.

[56]      Pursuant to subsection 55(1) of the Access to Information Act, costs are awarded to the applicant in Docket T-908-97 and in Docket T-911-97.

[57]      Further, pursuant to section 49 of the Privacy Act, this Court allows the application in Docket T-2052-97 and orders the respondent, to disclose the personal information at issue.

[58]      Pursuant to subsection 52(1) of the Privacy Act, costs are awarded to the applicant in Docket T-2052-97.

     __________________________

     Judge

Ottawa, Ontario

December 24 1997

__________________

¹R.S.C. 1985, c. A-1.

²R.S.C. 1985, c. P-21.

³As directed by Madam Justice Tremblay-Lamer on June 12^th , 1997, the conduct of the proceedings and the hearing of the applications for review between the Information Commissioner and the Chairperson of the Immigration and Refugee Board, Dockets T-908-97 and T-911-97, were to be heard at the same time. As directed by Mr. Justice Muldoon, on September 25^th, 1997, the conduct of the proceedings and the hearings for the application for review between the Privacy Commissioner and the Chairperson of the Immigration and Refugee Board, Docket T-2052-97 was also to be heard at the same time as Dockets T-908-97 and T-911-97.

⁴Letter of Dave Kornichuk to Catherine Bruce (30 December 1995) at 2.

⁵Cross-examination on the Affidavit of Catherine Bruce (4 September 1997) at 22-23.

⁶Letter of Catherine Bruce to Jean-Guy Fleury, "Fact Finding Exercise Into a Breach of Confidentiality in the Vancouver Office of the Immigration and Refugee Board", (1 February 1996) at 13.

⁷Cross-examination on the Affidavit of Catherine Bruce (4 September 1997) at 31.

⁸E-mail from Velten Pilger to Sergio Poggione (9 January 1996) at 1.

⁹Letter from Robin Kers to Sergio Poggione (16 February 1996) at 1.

¹⁰E-mail from Velten Pilger to Sergio Poggione (10 January 1996) at 1.

¹¹Letter of Robin Kers to Sergio Poggione (22 May 1996) at 1.

¹²Affidavit of Nurjehan Mawani (sworn July 17^th , 1997) at 1-2.

¹³R.S.C. 1985, c. P-33.

¹⁴Letter of John W. Grace to Nurjehan Mawani (7 January 1997) at 4.

¹⁵Letter of Bruce Phillips to Nurjehan Mawani (13 May 1997) at 2

¹⁶Affidavit of Nurjehan Mawani (sworn July 17^th , 1997) at 17-22.

¹⁷Letter of Huguette Rivard to Catherine Bruce (22 December 1995).

¹⁸[1997] 2 S.C.R. 403 at 433-34.

¹⁹[1984] 1 F.C. 939 at 943.

²⁰A-70-96 (26 November 1997) (F.C.A.). Although this decision was released on November 26, 1997 and that arguments of all parties had been heard on November 3^rd and 4^th, 1997, counsel for all parties submitted written submissions on the applicability of this decision.

²¹ Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75 (T.D.).

²²(1984), 9 Admin. L.R. 296 at 299 (F.C. T.D.).

²³R. Sullivan, 3^rd ed. (Toronto: Butterworths, 1994) at 131.

²⁴[1989] 1 F.C. 47 at 60 (C.A.).

²⁵Supra, note 20 at 16.

²⁶Supra, note 20 at 17.

²⁷Affidavit of Nurjehan Mawani (sworn July 17^th , 1997) at 5.

²⁸Affidavit of Dave Kornichuk (sworn July 21^st , 1997) at 8.

²⁹Affidavit of Catherine Bruce (sworn July 22^nd , 1997) at 4-5.

³⁰Affidavit of Inspector Dan Killam (sworn July 24^th , 1997) at 4.

³¹Affidavit of Lynn Gates (sworn July 25^th , 1997) at 2.