Date: 20080227
Docket: T-347-06
Citation: 2008 FC 258
BETWEEN:
MIKE
GORDON
Applicant
and
THE
MINISTER OF HEALTH
Respondent
and
PRIVACY
COMMISSIONER OF CANADA
Intervener
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
By
application filed the 24th of February, 2006, Mike Gordon (the
“Applicant”) sought relief against the Minister of Health (the “Respondent”) by
reason of the Respondent’s refusal to disclose the field of “province” in the
Canadian Adverse Drug Reactions Information System (“CADRIS”) database maintained
by the Respondent. The relief sought by the Applicant is set out in the
Memorandum of Fact and Law filed on his behalf in the following terms:
The Applicant requests
that this Honourable Court:
a) Orders [sic] the
Respondent to release the field of province and that the field be added to the
fields currently released;
b) Orders [sic] the
Respondent to maintain the public availability of the other fields currently
released to prevent the Respondent from arbitrarily withdrawing any of these
fields from public availability.
c) Orders [sic] such
further or other order as shall seem just to this Honourable Court.
d) The
whole, with costs.
[2]
By
Order dated the 14th of November, 2006, leave was granted to the
Privacy Commissioner of Canada (the “Intervener”) to intervene in the
application with all the rights normally associated with party status.
[3]
These
reasons follow the hearing of the application on the 4th of
February, 2008.
BACKGROUND
[4]
By
letter addressed to the “ATI Coordinator, Health Canada”, dated the
23rd of August, 2001, on “CBC/Radio-Canada” letterhead, the
Applicant, describing himself as Associate Producer Disclosure, CBC-TV, wrote:
Under the Access to
Information Act, I request access to and a copy of the database of adverse drug
reactions. This database contains information from the “Report of suspected
adverse reaction due to drug products marketed in Canada”…or any
similar report or communication collected by the Bureau of Drug Surveillance’s
Canadian Adverse Drug Reaction Monitoring Program.
One David McKie, apparently a colleague of
the Applicant at CBC/Radio-Canada, later filed a similar request and he and the
Applicant, at various times, pursued their requests together. Mr. McKie was
not made a party to this proceeding and took no part in the hearing before the
Court although it was his affidavit that was filed in support of the
application.
[5]
The
Canadian Adverse Drug Reaction Information System (“CADRIS”) consists of a
database containing information collected by the Respondent relating to
domestic suspected adverse reactions to health products, including
pharmaceuticals, biologics, natural health products and radialpharmaceuticals
marketed in Canada. For the
purposes of the CADRIS system, “adverse reactions” may include adverse reactions
to a particular product and such reactions occurring as a result of a reaction
to a combination of medications. Information regarding such reactions is
collected on a voluntary basis through reports provided by health professionals
and consumers and on a mandatory basis from drug manufacturers. Approximately
thirty-eight percent (38%) of the adverse reaction cases reported to the Respondent
are derived from voluntary reporting. The remainder, approximately sixty-two
percent (62%), are provided by drug manufacturers. The total number of adverse
reaction case reports received by the Respondent in 2005 was ten thousand four
hundred ten (10,410). At or about the 5th of July, 2006, the CADRIS
database contained information derived from over one hundred eighty thousand
(180,000) suspected adverse reaction reports received since 1965.
[6]
An
affiant on behalf of the Respondent attests in his affidavit filed in this
matter:
The data provided in
adverse reaction reports vary widely in quality, accuracy and completeness.
Adverse reaction reports are the observations and suspicions of those making
the report. It is very difficult to make conclusive cause and effect
conclusions from the information provided in a given report. A full range of
different considerations may have resulted in the adverse reaction, including
the possible contribution of concomitant medication or therapies, the
underlying disease, and the previous medical history. Furthermore, only a
small portion of suspected adverse reactions are reported to the programme. In
describing the “outcome” field on Health Canada’s website,
the following statement is made:
“The outcome represents
the outcome of the reported cases described by the reporter at the time of
reporting and does not infer causal relationship. The outcome is not based on
a scientific evaluation by Health Canada.”
[7]
CADRIS
contains approximately one hundred twenty-five (125) data fields of which
approximately twenty-five (25) are “not used”. At the time this proceeding was
commenced, approximately eighty-two (82) data fields had been disclosed to the
Applicant. Of the remaining nineteen (19), three (3) were not disclosed
because they are “always CDN”, four (4) were not disclosed because they were
“always WHOART”, presumably a reference to the World Health Organization, and
the remaining twelve (12) were not provided, in whole or in part, primarily for
privacy reasons.
Of the twelve (12), only one data field is the subject of this proceeding, that
data field being entitled “province”. In CADRIS terminology, “province” refers
to the province from within which the report in question was received, thus,
not necessarily indicating the province of residence of the individual who
allegedly suffered the reaction.
[8]
On
the 30th of October, 2002, the Applicant’s colleague, David McKie,
wrote to the Access to Information Commissioner, lodging a complaint “…over
Health Canada’s refusal to
release adverse drug reaction data in electronic form…”. There followed a
protracted intervention on the part of the Commissioner’s office
which concluded with a report to the Applicant from the office of the
Commissioner dated the 12th of January, 2006. That report reads in
part as follows:
On August 31, 2001, HCan [Health Canada] provided you with a
fee estimate for the production of a paper copy of the records contained in its
Canadian Adverse Drug Reactions Information System (CADRIS) database. On that
same day, you complained about HCan’s response. As well, we investigated HCan’s
contention that it was not possible to provide an electronic copy of the
records because personal information contained in the database could not, in
all cases, be electronically de-identified and protected.
As you know, I met you, your colleague, Dave
McKie, and HCan officials on May 30, 2003, to expedite the resolution of your
complaint. As a result, in October 2003, HCan provided you with a reconfigured
electronic copy of the information contained in the CADRIS database
(1965-2002), on a CD-ROM. Moreover, until September 9, 2005 HCan officials
continued to work with you to improve the quality and user-friendly nature of
the information provided. Then, on February 26, 2004, HCan provided a “final”
response providing the majority of the information in the data fields.
What remained withheld were twelve fields:
“ethnic group”, “notifier clinic”, “notifier hospital”, “notifier name”,
“notifier city”, “notifier phone number”, “patient initials”, “patient
identifier”, “province”, “date of birth”, “date of conception”, and “date
of death”. The information was withheld pursuant to subsection 19(1) of the
Act. As a result of my meeting with HC officials on July 12, 2005, I am
informed that, on September 9, 2005, HC made a further release to you of the
“year of death”, “year of birth”, and “year of conception” information held
within the database.
…
Having considered the evidence and
representations put forward by both parties, I am satisfied that the remaining
withheld fields contain information which, if disclosed, could reveal the
identities of individuals. Consequently, I find that the withheld information
is “personal” for the purposes of subsection 19(1) of the Act. As well, I am
satisfied that there is no consent from individuals for release of their
personal information, that the withheld information is not publicly available
and that none of the provisions of section 8 of the Privacy Act
authorize disclosure of the withheld information.
In finding that subsection 19(2) of the Act does
not authorize disclosure, I have given particular attention to the provisions
of subparagraph 8(2)(m)(i) of the Privacy Act. Given the extensive
amount of information already disclosed from CADRIS and the need to protect
anonymity in order to encourage voluntary reporting, I am not able to conclude
that the public interest in disclosure clearly outweighs any invasion of
privacy that could occur.
Given HC’s final response of September 9, 2005,
I consider this complaint to be resolved. I am grateful to you, and Mr. McKie,
for the patience and cooperation you have shown throughout this investigation.
…
[emphasis added, references to the “Act” are, of
course, references to the Access to Information Act]
[9]
This proceeding followed. As earlier noted, the sole issue before
the Court is non-disclosure of the CADRIS field of “province”, which
non-disclosure is justified by the Respondent under section 19 of the Access
to Information Act. Also as previously noted the term “province” in the
CADRIS system relates to the province from which the report of an adverse
reaction was received which in the majority of cases would not necessarily
be the same province as the province of residence of the individual allegedly suffering
the adverse reaction.
RELEVANT LEGISLATIVE
PROVISIONS
[10]
The
relevant legislative provisions are extensive. They are set out in full in a
schedule to these reasons. What follows is a brief description of the
provisions set out in the schedule.
[11]
This
proceeding was initiated under section 41 of the Access to Information Act
(the “Act”). The provisions of the Act that are relevant to the
proceeding are the following:
-
Section 2 of the Act sets out its purpose and its
complementarity with other existing procedures for access to government
information.
- Section
3 of the Act defines, among other words and phrases, “Court” for the
purposes of the Act, “government institution” for the purposes of the Act,
and “record”, for the purposes of the Act.
- Section
19 of the Act provides a mandatory exemption from disclosure of
“personal information” as defined in section 3 of the Privacy Act and
authorizes exemption from that prohibition where, among other circumstances,
the disclosure would be in accordance with section 8 of the Privacy Act.
- Section
41 of the Act provides the authority for the institution and disposition
of proceedings such as this before this Court.
- Section
48 of the Act deals with the “burden of proof” in a proceeding such as
this.
- Section
49 of the Act deals with the disposition by this Court of a proceeding
such as this where the Court determines that refusal of disclosure is not
authorized. Section 19 of the Act is not referred to in section 50 of
the Act.
- The
inclusion of the Department of Health in Schedule I to the Act has the
effect of including that Department within the definition of “government
institution” contained in section 3.
[12]
The
following provisions of the Privacy Act are relevant:
- Section
2 defines the purpose of the Privacy Act.
- Section
3 of the Privacy Act defines, for its purposes and among other words and
phrases, the expression “personal information” but excludes for certain
purposes,
including for
the purposes of section 19 of the Act, certain information that would
otherwise fall within the definition.
- Section
8 of the Privacy Act, and in particular on the facts of this matter, subparagraph
8(2)(m)(i), interrelates with the application of paragraph 19(2)(c) of the Act.
RELIEFS SOUGHT
[13]
The
reliefs sought on behalf of the Applicant are quoted in paragraph 1 of these
reasons. The Respondent seeks dismissal of the application with costs. The
Intervenor seeks no specific relief.
THE ISSUES
[14]
The
Applicant urges at paragraph 56 of his Memorandum of Fact and Law that the
following issues are raised by this application:
a) What is the
appropriate standard of review of Health Canada’s decision
not to disclose the field “province” contained in the CADRIS database?
b) Does the disclosure
of the field “province” requested constitute personal information? More
specifically, does disclosing the field “province” allow for the identification
of an individual, thus rendering other information, personal information as
defined in section 3 of the Privacy Act?
c) Assuming the
disclosure of the field “province” or “province” is not personal information
under the Privacy Act, can Health Canada claim
another exemption of the field “province” under the Access to Information
Act?
[15]
The
Respondent reformulates the issues in his Memorandum of Fact and Law as
follows:
(a) Was Health Canada correct in
concluding that the “province” field in the CADRIS database is subject to the
mandatory exemption from disclosure in s. 19(1) of the Access Act?
(b) Did Health Canada “abuse its
discretion” in finding that disclosure under s. 19(2) of the Act ought
not to occur?
[16]
The
intervener put forward no statement of issues in the Memorandum of Fact and Law
filed on her behalf but provided extensive and very helpful submissions both in
writing and orally at the hearing of this matter under the headings “The
appropriate test to apply in determining whether information is “about an
identifiable individual” and “Balancing of interest inherent in paragraph
8(2)(m)(i) of the Privacy Act.” Subheadings under the first heading
include “The importance of privacy in Canadian society”.
[17]
Standard
of review, as referred to in the Applicant’s list of issues is, of course,
fundamental to the determination of all applications such as this. There is a
substantial overlap between the remaining issues proposed on behalf of the
Applicant and those proposed on behalf of the Respondent.
ANALYSIS
1. Standard
of Review
[18]
In
Canada (Information Commissioner) v. Canada
(Commissioner of the Royal Canadian Mounted Police), Justice
Gonthier, for the Court, in the context of a brief pragmatic and functional
analysis and after quoting subsection 2(1) of the Act, wrote:
In my opinion, this
purpose [of the Access to Information Act] is advanced by adopting a
less differential standard of review. Under the federal scheme, those
responsible for answering access to information requests are agents of a
government institution. This is unlike the situation under many provincial
access to information statutes, where information requests are reviewed by an
administrative tribunal independent from the executive… . A less differential
standard of review thus advances the stated objective that decisions on the
disclosure of government information be reviewed independently of government.
Further, those charged with responding to requests under the federal Access
Act might be inclined to interpret the exceptions to information disclosure
in a liberal manner so as to favour their institution… . As such, the exercise
of broad powers of review would also advance the stated purpose of providing a
right of access to information in records under the control of a government
institution in accordance with the principle that necessary exceptions to the
right of access should be limited and specific.
[citations
omitted]
He concluded that, on the facts of the
matter before him, many of the critical features of which are similar to the
factual background in this matter, the appropriate standard of review was
“correctness”.
[19]
Counsel
for the Applicant urges that, in this case, the Respondent was required to
interpret section 3 of the Privacy Act. Consequently, counsel urges,
the fact that the head of a government institution is here to interpret
legislation, as in the above authority, militates in favour of providing broad
powers of review. Thus, counsel urges the appropriate standard of review to be
applied on the facts of this matter is “correctness”.
[20]
Counsel
for the Respondent urges that the foregoing should be qualified in
circumstances where the Information Commissioner of Canada, as here,
has expressed a view supporting the withholding of information on the grounds
of privacy concerns. In Canada (Attorney General) v. Canada (Information
Commissioner), my
colleague Justice Dawson wrote at paragraph 84 of her reasons:
…Disclosure can only be
ordered by the Federal Court in the event that, after the Commissioner
concludes his investigation, either the requester or the Commissioner seeks,
pursuant to s. 41 or 42 of the Act, judicial review of any subsequent refusal
to disclose a record. In such case, the Court will have the benefit of the
Commissioner’s investigation and report. Both this Court and the Federal Court
of Appeal have held that the considered opinion of the Commissioner is a factor
to be considered on judicial review in this Court. …
[citations
omitted]
I am satisfied that the foregoing is not
inconsistent with the guidance provided by Justice Gonthier of the Supreme
Court of Canada. Indeed, I am satisfied that it is entirely consistent with
that guidance, given the independence from government of the Information
Commissioner.
[21]
Further,
counsel for the Respondent urges, once a decision was reached by the Respondent
to refuse to disclose the field of “province” because it constitutes personal
information as defined in section 3 of the Privacy Act, greater deference
is owed to a decision by the Respondent not to disclose that information
because the exception to the general rule reflected in subsection 19(1) of the Act
is entirely discretionary. The determination to not exercise discretion is
based, on the facts of this matter, on a conclusion that disclosure would not
be in accordance with section 8 of the Privacy Act. Thus, the exercise
of discretion not to disclose involves an interpretation of law.
[22]
In
Dagg v. Canada (Minister of Finance) (“Dagg”),
Justice LaForest wrote at paragraph [110]:
In Kelly v. Canada (Solicitor
General)…Strayer
J. discussed the general approach to be taken with respect to discretionary
exemptions under the Privacy Act. He stated at p. 149:
It will be seen that
these exemptions required two decisions by the head of an institution: first a
factual determination as to whether the material comes within the description
of material potentially subject to being withheld from disclosure; and second,
a discretionary decision as to whether that material should nevertheless be
disclosed.
The first type of
factual decision is one which, I believe, the Court can review and in respect
of which it can substitute its own conclusion. This is subject to the need, I
believe, for a measure of deference to the decision of those whose
institutional responsibilities put them in a better position to judge the
matter….
The second type of
decision is purely discretionary. In my view in reviewing such a decision the
Court should not itself attempt to exercise the discretion de novo but
should look at the document in question and the surrounding circumstances and
simply consider whether the discretion appears to have been exercised in good
faith and for some reason which is rationally connected to the purpose for
which the discretion was granted.
In my view, this is the
correct approach to reviewing the exercise of discretion under s. 8(2)(m)(i) of
the Privacy Act.
[23]
I
am satisfied that the exercise of discretion under subsection 19(2) of the Act
falls within the “second type of decision”, that is to say, a purely
discretionary decision, referred to in the foregoing quotation.
[24]
In
the result, I am satisfied that the appropriate standard of review on this
application is correctness subject to the two foregoing qualifications as urged
on behalf of the Respondent; that is to say, that the fact that the
Commissioner was involved in this matter and supported the decision of the
Respondent to maintain the exemption of the field of “province” is a factor
that should be considered by this Court as a qualification of the correctness
standard of review in respect of the claimed exemption under subsection 19(1)
of the Act, and that the decision by the Respondent not to exercise his
discretion under subsection 19(2) to nonetheless release the substance of the
field of “province” should only be reviewed to determine whether the discretion
was exercised in good faith and for a reason rationally connected to the
purpose for which the discretion was granted.
2. The
determination that the field of “province” falls within subsection 19(1) of the
Act
a) Personal
Information
[25]
“Personal
Information” is defined in section 3 of the Privacy Act, for the
purposes of that Act, as “…information about an identifiable
individual that is recorded in any form…” . That broad definition is elaborated
with nine (9) classes of information that are listed and that are indicated not
to restrict the generality of the foregoing. Exceptions from the broad
definition are then listed for the purposes, among others, of section 19 of the
Access to Information Act with the only one of those exceptions that
might possibly be relevant for the purposes of this matter being “information
about an individual who has been dead for more than twenty years”. Much turns
for the purposes of this matter on the interpretation of the word “about” in
the general definition of “personal information”.
[26]
Subsection
19(1) of the Act provides that the head of a government institution shall
refuse to disclose any record requested under the Act that contains
personal information as defined in section 3 of the Privacy Act.
Subsection 19(2) provides a discretion to the head of a government institution
to disclose personal information in three (3) circumstances, with the only one
of those circumstances that is relevant for the purposes of this matter being
if the disclosure is in accordance with section 8 of the Privacy Act.
[27]
Subsection
8(1) of the Privacy Act prohibits disclosure of personal information
without the consent of the individual to whom it relates except in accordance
with subsection (2) of the same section. Subsection 8(2) provides that
personal information may be disclosed in thirteen (13) listed
circumstances, with the only one of which that is relevant for the purposes of
this matter being in the following terms:
(m) for any purpose
where, in the opinion of the head of the institution,
(i) the public interest
in disclosure clearly outweighs any invasion of privacy that could result from
the disclosure, or
…
[28]
In
Dagg,
Justice Laforest described the interpretation of section 19 of the Act
as involving “…a clash between two competing legislative policies – access to
information and privacy”. In H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney
General) Justice Deschamps,
for the majority, wrote at paragraph 26 of her reasons:
The intimate connection
between the right of access to information and privacy rights does not mean,
however, that equal value should be accorded to all rights in all
circumstances. The legislative scheme established by the Access Act and
the Privacy Act clearly indicates that in a situation involving personal
information about an individual, the right to privacy is paramount over the
right of access to information, except as prescribed by the legislation. Both
Acts contain statutory prohibitions against the disclosure of personal
information, most significantly in s. 8 of the Privacy Act and s. 19 of
the Access Act. Thus, while the right to privacy is the driving force
behind the Privacy Act, it is also recognized and enforced by the Access
Act.
Justice Deschamps concluded on this issue
at paragraph 29:
…Thus, it is clear from
the legislative scheme established by the Access Act and the Privacy
Act that in a situation involving personal information about an
individual, the right to privacy is paramount over the right of access to
information.
[emphasis
added]
[29]
At
paragraph 28 of Heinz, supra, Justice Deschamps noted:
…the importance of this
legislation is such that the Privacy Act has been characterized by this
Court as “quasi-constitutional” because of the role privacy plays in the
preservation of a free and democratic society:….
[citations
omitted]
[30]
It
is against this background that the decision of the Respondent to withhold
disclosure of the field of “province” in the CADRIS database maintained by the
Respondent must be reviewed.
b) Is the
Substance of the field of “province” personal information?
[31]
As
earlier noted, the field of “province” does not necessarily identify the
province of residence of the individual who suffered or would appear to have
suffered an adverse drug reaction. Rather, that field discloses the location
by province, and province includes Canada’s three (3) northern territories in this
context, of the person, in the broadest sense of that term, filing the report.
The issue thus becomes, is the substance of the field of “province” information
about an identifiable individual?
[32]
In
Canada (Information
Commissioner) v. Canada (Transportation
Accident Investigation and Safety Board), Madame Justice
Desjardins, for the Court, wrote at paragraph [43]:
These two words, “about”
and “concernant” [the French language equivalent of “about” in section 3 of
the Privacy Act], shed little light on the precise nature of the information
which relates to the individual, except to say that information recorded in any
form is relevant if it is “about” an individual and if it permits or leads
to the possible identification of the individual. There is judicial
authority holding that an “identifiable” individual is considered to be someone
whom it is reasonable to expect can be identified from the information in issue
when combined with information from sources otherwise available… .
[citations
omitted, emphasis added]
[33]
Thus,
information recorded in any form is information “about” a particular individual
if it “permits” or “leads” to the possible identification of the individual,
whether alone or when combined with information from sources “otherwise
available” including sources publicly available.
[34]
Counsel
for the Privacy Commissioner, the Intervener, urged the adoption of the
following test in determining when information is about an identifiable
individual:
Information will be
about an identifiable individual where there is a serious possibility that an
individual could be identified through the use of that information, alone or in
combination with other available information.
I am satisfied that the foregoing is an
appropriate statement of the applicable text.
[35]
As
previously noted, the burden of establishing that the Respondent was authorized
to refuse to disclose the field of “province” in CADRIS is on the Respondent.
Also as previously noted, in an effort to discharge this burden, the Respondent
filed three (3) affidavits, those being of Bill Wilson, Head of the Database
and Terminology Unit in the Marketed Health Products Directorate of Health
Canada, of Ross Hodgins, Director, Access to Information and Privacy, Health
Canada and of Ann Brown, a Senior Statistical Consultant in the Statistical
Consultation Group of the Social Survey Methods division of Statistics Canada.
[36]
None
of the Respondent’s affiants were sought to be qualified as experts. All three
(3) were cross-examined on their affidavits. Reasonably extensive answers to undertakings
were provided.
[37]
Under
the heading “The Risk of Identification of Personal Information if the Province
Field is Disclosed”, Mr. Wilson attested :
22. A first indication
of such risk is the size of the pool of information in the database for the
smaller provinces and territories. Statistics Canada preliminary post-censal
estimates for January 1, 2006, indicates the population of Prince
Edward Island,
for example is 138,157 (compared to Ottawa at 865,500). In
addition, there are only nine hospitals in the province. The territories also
send Adverse Reaction reports and these have considerably smaller populations:
Yukon 31,150, Northwest Territories 42,526 and Nunavut 30,245. The
number of reports from these smaller provinces and territories is relatively
small (in 2005, Prince Edward Island had 13 reports, Yukon had 5 reports,
Northwest Territories had 3 reports and Nunavut had no reports). In
conjunction with other information released, i.e. height, weight, age, reaction
description and notifier type, links can be made to particular individuals.
[38]
At
paragraph 27 of his affidavit, Mr. Wilson attests:
As a further test of the
ability of an outsider to obtain personal information, I examined publicly
available information from the database in conjunction with obituary
information available on the internet. The combination of this information
made it relatively easy to identify personal information if the province field
was known. …
He concluded at paragraph 28 of his
affidavit:
…the identification of
personal information is much more difficult without knowledge of the province
field, because the number of AR [Adverse Reaction] reports and corresponding
publicly available secondary information without knowledge of the province of
origin can be very large. However, with the province field, identification of
personal information matched with publicly available information such as
obituary data or other information known to someone such as a neighbour or
hospital worker, makes the identification of the individual extremely easy.
[39]
Finally,
in paragraphs 29 and 30 of his affidavit, Mr. Wilson attested as to an actual
use of CADRIS database information already disclosed as follows:
The potential for the
identification of personal information as described above is not merely
theoretical. Even in the absence of province information, in 2003, the CBC
used information from the CADRIS database, combined with obituary information,
to identify and approach the family of a student aged 26 named Kathrina Agelidis
about the possible connection between her medication and her death. The
details of that report drawn from the CBC website are attached hereto… The
table and other information provided…are among the other publicly available
information provided on the CBC website in respect of this report.
The CBC report reflects
some uncertainty as to whether or not the individual in question is the same
person as disclosed in the CADRIS database line entry. Such uncertainty would
be reduced substantially, or eliminated entirely, if the province field was
provided as the Applicant has requested.
[40]
Mr.
Hodgins attested in response to the affidavit of David MacKie filed on behalf
of the Applicant and relating to the process leading up to this matter and as
to the basis for the exemption of the “province” field and to the
considerations leading to the failure on the part of the respondent to exercise
the discretion provided to the respondent under subsection 19(2) of the Act.
With respect to the basis for exemption of the “province” field, he attested at
paragraph 9 of his affidavit:
Health Canada determined
that disclosure of the “province” field of the CADRIS database would result in
disclosure of information about an identifiable individual, whether the
reporter of information or the patients themselves. As set out in more detail
in the Affidavit of Bill Wilson, this conclusion was based upon the fact that
the number of entries in the database becomes extremely small if the province
field is provided in conjunction with the other information publicly available,
making the risk of disclosure of personal information very high… .
[41]
In
the affidavit of Ann Brown, she attests at paragraph 4:
In April, 2006 I was
requested by Health Canada to prepare an assessment of the impact of
disclosure of the “province” field on the ability of outsiders to identify
unique or near-unique individual reports from the other publicly-available
CADRIS database fields. Bill Wilson at Health Canada provided the
CADRIS raw data to me in electronic form. I initially familiarized myself with
the content and operation of the CADRIS data. This included identification of
fields which could be used by someone attempting to link publicly available
information in the database with a known individual or information about a
known individual. The fields chosen were the following:
(a)
“year received at MHPD” (Marketed Health Products Directorate):
This corresponds to the
year from the field “date received at MHPD” in the CADRIS database;
(b) “outcome”: the
“outcome” field;
(c) “gender”: the
“gender” field;
(d) “age at reaction”:
this corresponds to the field “age” in the CADRIS database.
[42]
Ms.
Brown concluded at paragraph 9 of her affidavit:
The columns [in Exhibit
“A” to Ms. Brown’s affidavit] under the heading “After Adding Province”
indicate how the number of reports in question changes if the “province” field
is added. In the case of unique reports involving all five fields, for
example, the number of unique reports increases by more than 16,000 when the
“province” field is included.
“Unique reports” in the foregoing quotation
represent situations in which there is only one (1) report for a particular
combination of fields. For example, the four (4) fields involving a unique
report might be: “year sent to MHPD = 2002; Outcome = Died Due to Adverse
Reaction; Gender = Female: Age at Reaction = 26” the relevant combination of
fields for the late Ms. Agelidis referred to in the quotation in paragraph [39]
of these reasons.
[43]
I
am satisfied that the evidence of the Respondent’s three affiants, quoted in
part above, when taken together, represents substantial evidence that
disclosure of the province field would substantially increase the possibility
that information about an identifiable individual that is recorded in any form
would fall into the hands of persons seeking to use the totality of information
disclosed from the CADRIS database, in conjunction with other publicly
available information, to identify “particular” individuals.
[44]
In
written submissions contained in the Applicant’s Memorandum of Fact and Law and
in oral submissions on behalf of the Applicant at the hearing of this matter,
the Applicant was substantially critical of the foregoing evidence. It was noted
that all three (3) affiants, as previously noted in these reasons, stated that
they were not being put forward as experts. In the result, counsel noted there
was no “expert” evidence put forward on behalf of the Respondent concerning the
likelihood that disclosing the field of “province” would allow the
identification of particular individuals. Counsel noted that the following
issues were not addressed in the Respondent’s evidence: first, the fact that
drug reactions are underreported; secondly, that the CADRIS database contains
suspected drug reactions, which indicates that there may have been no drug
reaction in specific cases; thirdly, the identity of the drug at issue;
fourthly, the number of people in the province who might be taking a particular
drug; fifthly, the fact that there is a potential six-month lag time after a
report is received before the report would be included in the CADRIS database;
and finally, the fact that the name of an individual allegedly experiencing a
negative reaction is not in the CADRIS database and is not otherwise available
publicly.
[45]
Finally,
it is worthy of note that no rebuttal evidence was put forward on behalf of the
Applicant and that the concerns expressed in the Applicant’s Memorandum of Fact
and Law and put forward on the Applicant’s behalf at hearing would appear to be
those of a person or persons certainly no more “expert” than each of the
Respondent’s witnesses and certainly less expert and less familiar with the
CADRIS database than the Respondent’s affiants taken together.
[46]
Counsel
for the Applicant urges in conclusion on the evaluation of the evidence before
the Court, at paragraph 80 of the Applicant’s Memorandum of Fact and Law that:
The Respondents have
completely failed to show that the addition of the field of “province” to other
publicly released data would serve to increase or significantly increase the
prospect of identifying an individual sufferer of a drug reaction.
[47]
I
disagree. I am satisfied that the Respondent has provided evidence to the Court
sufficient to meet the burden placed on him by section 48 of the Act to
establish that he was authorized to refuse to disclose a record requested under
the Act or a part thereof. Put another way, I am satisfied that the
Respondent, on the evidence before the Court, was required to refuse to
disclose the content of the field of “province” pursuant to subsection 19(1) of
the Act. The content of that field, in all of the circumstances of this
matter, constitutes “personal information” as defined in section 3 of the Privacy
Act.
c) Failure
of the Respondent to disclose the field of “province” in the CADRIS database
pursuant to subsection 19(2) of the Act
[48]
The
issue before the Court with regard to the Respondent’s failure to exercise his
discretion to disclose under subsection 19(2) of the Act is whether or
not the requested information, that is the substance in the field of “province”,
is such that its disclosure would have been in accordance with section 8 of the
Privacy Act.
[49]
As
earlier noted in these reasons, the only authority for disclosure under section
8 of the Privacy Act on which it was urged the Respondent should rely is
“…for any purpose where, in the opinion of the head of the institution, [here
the Respondent], the public interest in disclosure clearly outweighs any
invasion of privacy that could result from the disclosure…”. Further, also as
previously noted, the Respondent, in considering whether or not he should
exercise his discretion to disclose based upon a weighing of the public interest
in disclosure against any invasion of privacy that could result, was required
to bear in mind that the Privacy Act has been characterized as “quasi
constitutional” because of the role privacy plays in the preservation of a free
and democratic society.
[50]
Counsel
for the Applicant urges that access to the field of “province” is for more than
mere curiosity, it is for the legitimate aim of informing the public regarding
their health and safety without affecting Canadians’ privacy rights. She urges
that the only evidence put forward on behalf of the Respondent is “…arbitrary,
unscientific and purely anecdotal and…[is] riddled with assumptions and
assertions that the risk of identification would significantly increase without
a credible [evidentiary base] that this is the case.”
[51]
The
foregoing being said, the Applicant put forward no evidence contrary to that of
the Respondent and in particular, no evidence how public health and safety
would be enhanced if the field of province were disclosed, without at the same
time impinging on privacy rights.
[52]
In
Dagg,
Justice Laforest wrote at paragraph 113:
There is no evidence, as
was the case in Rubin, supra, that the Minister failed to examine the
evidence properly. It is apparent that he considered the appellant’s request
for public interest waiver in the light of the objects of the legislation and
came to a determination that the public interest did not “clearly outweigh” the
violation of privacy that could result from disclosure. This was a
conclusion that he was entitled to make. For this Court to overturn this
decision would amount to a substitution of its view of the matter for his.
Such a result would do considerable violence to the purpose of the legislation
and would amount to an unjustified usurpation of the Minister’s statutory
role.
[emphasis
added]
I am satisfied that precisely the same
might be said here, particularly in light of the support for the Respondent’s
determination not to exercise his discretion to disclose that was provided by
the Access to Information Commissioner after lengthy involvement in the dispute
between the Applicant and the Respondent over this request for access.
CONCLUSION
[53]
For
the foregoing reasons, this application will be dismissed.
COSTS
[54]
The
Respondent seeks his costs of this application. In the normal course of
events, costs follow the outcome. I find no basis on the facts of this matter
to vary from the normal course of events. The Respondent will have his costs
as against the Applicant.
[55]
There
will be no costs in favour of or against the Intervener.
“Frederick
E. Gibson”
Ottawa,
Ontario.
February
27, 2008
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