Date: 20081003
Citation: 2008FC1115
Ottawa, Ontario, Friday, this 3rd
day of October 2008
PRESENT: MADAM PROTHONOTARY MIREILLE TABIB
Docket:
T-1256-08
BETWEEN:
MONSIEUR
A ET MADAME B
Applicants
-
and -
ATTORNEY
GENERAL OF CANADA
Respondent
Docket:
T-1257-08
BETWEEN:
MR.
X
Applicant
-
and -
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
I am seized of a motion
by the Applicants for an order that they be authorized to file and prosecute
these applications anonymously and for an order that certain documents and
information filed in their applications be treated confidentially.
The facts and circumstances:
[2]
Materials filed
publicly in this matter reveal the following: Mr. X is a former civil servant
within the federal public service. Mr. X was the subject of an investigation
by the Public Service Commission of Canada (“PSC”) stemming
from allegations of wrongdoing on his part during a staffing process in the
federal public service. The PSC intends to include in its annual report (which
is destined to be posted publicly on its website) personal information about
Mr. X collected during that investigation. In the materials submitted publicly
on this motion by Mr. X, he admits that the information at issue is damaging to
himself, will harm his reputation and cause shame and embarrassment to himself
and, because of their association with him, to his family. Mr. X further
alleges that disclosure of the information will impede his efforts to find
employment.
[3]
Monsieur A and Madame B
are persons who claim that personal information concerning them is included in
the materials the PSC intends to publish. The publicly filed material does not
indicate the nature or type of the information concerning Monsieur A and Madame
B which is intended to be published, or whether or why the information would be
damaging or prejudicial to them, beyond the fact that it would breach their
right to privacy.
The remedies sought:
[4]
In their judicial
review applications, all three Applicants seek a review of the PSC’s decision
to publish “their personal information”. In the case of Mr. X, the Notice of
Application does not specify the extent of what is considered to be his
“personal information”. In the case of Monsieur A and Madame B, the Notice of
Application is at once as vague and much more precise: It seeks an order that
“all personal information concerning the applicants and their family” be
redacted, and an order permitting disclosure only of information that will not
identify the Applicants and their family.
[5]
In the motions for a
confidentiality order with which I am now seized, Mr. X and Monsieur A and
Madame B very explicitly seek as relief that they be allowed to proceed with
these applications anonymously, and that their names and addresses be treated
confidentially to prevent their being identified.
[6]
More vaguely, both
motions also seek orders that “any other personal information” about them or
“the personal information at issue in this application” be kept confidential.
Again, what, other than their names and addresses, is that other personal
information is not stated.
[7]
For both motions, the
Applicants submitted confidential affidavits, which they ask be ordered to
remain confidential. One would expect that these affidavits would identify with
specificity the information they consider confidential, and that they would not
be filed confidentially if all they contain is information already disclosed on
the public record. Both the Applicants’ counsels appear well aware of the
public interest in open and accessible Court proceedings, and of the imperative
that confidentiality orders, when issued, should be framed as narrowly as
possible to promote as much as possible the principle of open and accessible
Court proceedings while preserving the confidentiality interests at stake. Both
counsels would also have been expected to be aware that where documents contain
mostly public information and only some, reasonably severable confidential
information, it is a good and well known practice to submit two versions of the
document, one public version from which the confidential information is
redacted, and one complete, unredacted version to be kept confidential. The
Applicants however did not take these steps.
[8]
As mentioned above,
providing redacted copies of the material would have greatly assisted the Court
in identifying what the Applicants mean by “other personal information” to be
kept confidential, especially in the context where Mr. X has put on the public
record almost all of the information concerning himself that PSC intends to
publish, in addition to publicly volunteering even more personal information,
such as the academic degree he possesses, his state of health, marital status,
and the recent birth of his first child.
[9]
In an effort to
understand what the Applicants meant to cover by the proposed confidentiality
order, the Court invited counsel for the Applicants at the hearing to indicate
exactly which parts of the summary intended to be published by the PSC is in fact
personal information of the Applicants, is not already disclosed on the public
record, and should be kept confidential.
[10]
The thrust of Mr. X’s
counsel’s argument was that it includes any information that would lead to the
identification of Mr. X. Unfortunately, counsel could not say which parts or
elements of the summary would lead to identification of his client.
[11]
On behalf of Monsieur A and
Madame B, counsel only pointed to one half of one sentence, which refers to the
participation of an un-named individual, identified only in terms of the
relation in which he or she stands to Mr. X, (such as, for example, a
co-worker, a neighbour, a family member). One understands that either Monsieur
A, Madame B or a member of their family stands in the same relation to Mr. X as
that un-named individual, such that the un-named individual is either one of
them, or could be mistaken for them. For Monsieur A and Madame B, therefore,
the information to be protected (beyond their name and address) would appear to
be limited to the relation in which they stand to Mr. X. However, I
note that one of the grounds on which they appear to object to the publication
is that identification of Mr. X himself will cause embarrassment or prejudice
to them by association.
As Mr. X, they therefore seek to protect any information that would serve to
identify Mr. X, but cannot identify what part of the summary would lead to that
result.
I therefore take that the
relief sought by the Applicants is as follows:
·
Primarily, that each of their their names and addresses be kept
confidential.
·
That “information that
would lead to the identification of Mr. X” be kept confidential;
·
Additionally, For
Monsieur A and Madame B, that the relation in which they stand to Mr. X be kept
confidential.
I will consider each prayer for relief in turn.
Names and addresses of Mr. X, Monsieur A and Madame B:
[12]
Notably, the Respondent agrees that that remedy is appropriate in the
circumstances.
[13]
The parties in this matter are in agreement that confidentiality orders
such as the one sought in this matter should not lightly be granted, as they
impinge upon the quasi-constitutional principle of open and accessible Court
proceedings.
They also agree that the applicable test is the following:
[14]
“A confidentiality order under Rule 151 should
only be granted when:
(a) such
an order is necessary in order to prevent a serious risk to an important
interest, including a commercial interest, in the context of litigation because
reasonably alternative measures will not prevent the risk; and
(b) the
salutary effects of the confidentiality order, including the effects on the
right of civil litigants to a fair trial, outweigh its deleterious effects,
including the effects on the right to free expression, which in this context
includes the public interest in open and accessible court proceedings.”
[15]
Both sets of Applicants, in their motion materials, essentially state
that their alleged right to object to the disclosure of their identity (which
all agree includes their names and addresses) is the central issue in these
judicial review proceedings, and that disclosure of that very information as
part of their public filings would accomplish exactly what they are attempting
to prevent, and effectively render their judicial review applications moot. I
agree. I further agree that preventing this harm – the effective denial of the
Applicants’ access to judicial review by reason of their application becoming
moot by the simple fact of filing the application – is sufficiently important
to justify a confidentiality order.
[16]
It is common in
litigation under the Access to Information Act and the Privacy Act
for confidentiality orders to be issued to prevent the disclosure of the very
information which is sought to be protected, pending determination of the application.
Of course, it is unusual that the information sought to be protected is the
very name of the applicant, with the result that the proceedings would almost
necessarily have to be brought under a pseudonym. Indeed, people’s names, in
isolation, do not generally incite privacy concerns; it is when these names are
associated with or related to other information or circumstances that privacy
issues arise. Even in the matters at issue, it is clear that the Applicants’
desire to prevent disclosure of their names does not attach to their names in
isolation, but to the association of the names with the facts and circumstances
set out in the PSC summary.
[17]
The association of names
with certain circumstances can be protected in one of two ways: the true names
of the applicants can be used publicly, and the specific circumstances with
which their identities would be associated protected, or the circumstances can
be laid out publicly, with the identities of the applicants protected. The decision
as to most appropriate way to proceed in any given instance rests with the
Court, and should take into consideration which device is most apt to serve the
public’s interest in open and accessible Court proceedings without compromising
the rights asserted by the parties.
[18]
Taking into account all
circumstances herein, I have come to the conclusion that the balancing of the
parties’ legitimate confidentiality interests and the public’s right of access
to judicial proceedings can be best accommodated by protecting the Applicants’
names and addresses, provided that that the circumstances giving rise to the
application and the decision of the PSC to publish the summary, including the
summary itself (with names redacted), are otherwise publicly filed. As argued
by counsel for Mr. X himself, this manner of proceeding would protect the
disclosure of the very information sought to be protected, and thus avoid that any
relief to which the Applicants may be entitled becomes nugatory before it can
even be ordered. It will also ensure that the issues which are at stake in this
application can be understood from the public record, and that they can be transparently
debated and determined, in an open and accessible manner.
[19]
I have come to that
conclusion, and would have come to it, independently of the unfortunate way in
which the Applicants chose to file their materials herein. The Applicants chose
to file their Notices of Application anonymously, accompanied by motions
seeking confidentiality protection for their identities. In the context of his
motion, Mr. X chose to file publicly most, if not all of the relevant
circumstances disclosed in the PSC summary. Not only was that course of action
not in accordance with the Federal Court Rules, but it all but
eliminated the first option discussed above as a viable means of protecting the
crucial association between the Applicants’ identities and the circumstances. The
fact that the judicial review application was filed anonymously may also have
played a role in the media attention this matter has generated.
[20]
The Rules of the Court
require every originating document, including a notice of application, “to set
out the names of all parties”.
Relief from compliance with this Rule may only be obtained by order of the
Court, made on motion. Thus, the appropriate way in which the
Applicants should have proceeded would have been to bring a motion prior
to the commencement of the applications, as specifically contemplated in Rules
67(6) and 24, for leave to file their applications under a pseudonym or for
such confidentiality order as may be necessary to protect the relevant
information. Once the Court has determined the appropriate level and method of
protection, the proposed notice of application can be tailored to meet the
conditions of the order and then filed. As importantly, if unsuccessful in
obtaining the degree of protection they desire, parties may then make
enlightened choices as to whether and how to proceed with subsequent steps.
[21]
I should also note,
before moving to the next issue, that on the records before me, I would not
have granted protection to Mr. X’s name and address on the basis of the other
grounds cited in his motion materials, namely, public embarrassment and shame,
and impediment to securing employment. As pointed out in Doe v. Canada (Attorney General), 2003
FCT 117:
“Stress and, to a degree,
embarrassment and their impact on a litigant's life and employment, can be
common in much litigation. Against this must be balanced the rights of the
other side and of the Court to appropriate procedure, including full
disclosure.”
[22]
This Court has been
slow to recognize humiliation, embarrassment or loss of reputation as
justifying confidentiality orders unless clear evidence of serious harm is
presented. In Doe v. Canada (Attorney General)(supra)
and more recently in Doe c. Ministre de la Justice 2008 FC 916, general
affirmations of humiliation, loss of reputation or impediment to employment were
found not to justify the use of a
pseudonym. In the present matter, the prejudice is presented as arising
specifically as a result of the very public posting of the information through
the PSC’s website. While Court filings are open and accessible to the public,
they do not have the same widespread public dissemination as internet postings.
Reasons for order are the only portion of Court filings that are openly and
widely published, and every Judge or Prothonotary has the discretion to be as
circumspect as he or she believes is necessary in drafting orders and reasons
for orders.
The evidence before me is simply not sufficient to conclude that merely placing
on the Court’s public record information identifying Mr. X would cause the prejudice
feared by Mr. X.
Other Information leading to the identification of Mr.
X.
[23]
As mentioned above,
neither counsel for Mr. X nor counsel for Monsieur A and Madame B could
identify, in the summary proposed to be posted by PSC on its website, what
information, other than the name and address of Mr. X, was not otherwise
disclosed on the public record and would lead to the identification of Mr. X.
There is, moreover, no evidence to support a finding that laying that
information on the open record would lead to identification. Counsel for Mr. X
mentioned at the hearing that such evidence could be brought, but would require
the filing of expert evidence on reverse identification. I am not prepared to
permit the Applicants to supplement their record in that regard so as to delay
the determination of this motion pending receipt of additional evidence. A party
seeking a confidentiality order has the onus of presenting to the Court such
evidence as it feels is necessary to support the remedy requested. Furthermore,
as counsel did not even know whether any information, other than the name of
Mr. X, would in fact lead to his identification, the availability of evidence
to support this fact is clearly speculative.
[24]
Even assuming that an
expert in reverse identification could piece together additional personal
information drawn from the materials submitted confidentially with the evidence
already on the public record, there is no evidence that a person would be
motivated to go to such lengths to identify the Applicant. I am not convinced
that such an outside risk would outweigh the further infringement on the open
Court principle which would result from the removal from the public record of
further details of the circumstances relevant to this judicial review. As
previously mentioned, preserving the confidentiality of the Applicants’ names
and addresses constitutes an acceptable limit to the principle of accessible
and open proceedings, provided that all other circumstances giving rise to this
application are otherwise publicly filed so as to allow an intelligible and
transparent debate and determination of the issues. On the record before me, it
appears that even information such as the department for which Mr. X worked, and
the level of seniority and responsibility he occupied, may be relevant to
determination of the issues in this application. The ability of the parties to
make complete representations on the public record in relation to these issues,
and of the Court to publicly consider them, should not be curtailed in the
absence of clear evidence of a real risk of substantial harm.
[25]
As a result, I would
only include in the confidentiality order the exact designation of the position
or positions held by Mr. X. Information relating to the department in which he
worked, or referring to the classification level of his position or the general
responsibilities and requirements of that position will not be confidential.
Information as to the specific acts reproached to Mr. X will also not be
confidential.
The relation in which Monsieur A and Madame B stand to
Mr. X
[26]
It is important to
understand here that the content of the information which the PSC seeks to post
on its web site in relation to the investigation and its findings has evolved
significantly over time. It appears from the record before me that the PSC’s
intention was initially to post the complete investigation report. That report
was not tendered in evidence, but from the initial letter of objection sent to
the PSC by counsel for Monsieur A and Madame B, it appears that the report
included the name and the exact description of the relationship between one of
these two Applicants and Mr. X, additional personal information about that
Applicant, and the suggestion that he or she was a participant in Mr. X’s
wrongdoing. With respect to the other Applicant, it is clear that the report of
investigation never made any mention of his or her personal information.
[27]
The PSC eventually
resiled from its intention to publish the report, and instead, indicated it
would publish a summary of the report. The first proposed summary removed the
name and other personal information of the Applicant previously named, but kept
the exact description of the relationship between that Applicant and Mr. X,
with the mention of participation in the wrongdoing. Further discussions took
place leading to other changes.
[28]
The final iteration of the
summary intended to be published only refers to the relation in which the
participant stands in relation to Mr. X in generic, non-specific terms. That
generic relationship applies equally to both Monsieur A and Madame B, such that
the relationship no longer suffices to specifically identify any one of the two
Applicants.
[29]
Logically, the mere disclosure
of the relation in which unnamed people stand to an un-named person cannot lead
to the identification of any one of them. Nothing in the record before me would
indicate that this assumption does not apply in the circumstances. Accordingly,
so long as the name and address of Mr. X, Monsieur A and Madame B remain
undisclosed, the disclosure of the generic relation in which Monsieur A and
Madame B stand to Mr. X cannot prejudice them, or render their application
moot.
[30]
Furthermore, experience
has already demonstrated that it is virtually impossible for counsel to make
effective representations on behalf of his clients in open Court or on the open
record without referring to the generic relation between his clients and Mr. X.
At the hearing of the present motion, with members of the public present in
Court, the Court attempted to discuss with counsel for Monsieur A and Madame B
the kind of personal information they allege is disclosed in the proposed
summary, or why this information is personal information of his clients which
should be protected. Counsel for the Applicants having obviously determined
that he would not mention the nature of the relationship between his clients
and Mr. X, he found himself painfully hamstrung in making representations, to
the point where an effective, open and transparent discussion could not be
held.
[31]
To allow the Applicants
to redact from the materials to be filed in this application any mention of the
relation in which they stand to Mr. X would prevent the very basis and grounds
for their application from being publicly understood, and therefore effectively
cloak the entire argument in relation to their application in a veil of secrecy.
[32]
I am satisfied that
protecting the names and addresses of Mr. X, Monsieur A and Madame B, is
amply sufficient to prevent harm to the interests of Monsieur A and Madame B, pending
determination of this application, and that extending that protection to the
relation in which they stand to Mr. X would put unnecessary and excessive
limits on the public interest in open and accessible Court proceedings. I also
note that there has already been some amount of “bleeding” of information
between the two files, and that if the nature of the relationship between the
Applicants is not already publicly available, it might yet be inferred.
[33]
I note here that the
initial exchange of letters between counsel for Monsieur A and Madame B and the
PSC, filed as an exhibit to the affidavits of Monsieur A and Madame B, contains
information not only as to the generic relation in which they stand to Mr. X,
but as to the specific relation in which each stands to him, as well as some
additional personal information such as studies and medical information. It
appears that that information was initially given to PSC by Counsel for
Monsieur A and Madame B as germane to the arguments presented to oppose the
disclosure of the entire investigation report and of the name of Mr. X. Because
the PSC has since significantly changed the content of the information to be
published, it may be those references are no longer relevant, and that simply
identifying the generic relation in which the Applicants stand to Mr. X will be
all that is needed to support the Applicants’ arguments. Expecting that to be the
case, the Court is prepared to order that references to the specific
relationship between the parties and other personal information they
volunteered be redacted from the affidavits and exhibits already filed in the
public record, and from exhibits to be filed and the certified record of the
PSC. To the extent the specific relationship between the Applicants and Mr. X
forms any part of the Applicants’ argument, then the argument and related evidence
will obviously have to be filed in the public record, to allow public
intelligibility of their argument.
Treatment of the materials already
submitted by the Applicants under seal, and of future filings
[34]
The Applicants are to
prepare a public version of the affidavits and exhibits they have tendered
under confidential seal, from which they may redact the following specific
information:
·
The names, addresses
and cities of residence of the Applicants.
·
The institutions at
which and programmes for which Monsieur A and/or Madame B study, and reference
to medical information;
·
The exact position held
by Mr. X.
·
The specific relation in
which Monsieur A and Madame B stand to Mr. X, although any mention of the generic
nature of that relationship (such as neighbours, co-workers, family members,
etc) is to remain;
[35]
The proposed public
version is to be provided to the Respondent for its comments and approval, prior
to being submitted to the Court for filing. The same shall be done in relation
to the certified record of the PSC and any further affidavits or exhibits filed
herein.
[36]
The parties shall
refrain, in any written representations to be filed in this matter, from
mentioning the information specified above. If any of the parties feel that
mention of the said information in written submissions is necessary, that party
shall, prior to filing the written representations in question, either move for
this confidentiality Order to be varied or for leave to file a redacted version
of the written representations.
Continued confidentiality pending appeal
[37]
Realizing that this
Order may be subject to appeal to a Judge, and in order to avoid any such
appeal becoming moot, I have avoided mentioning in this Order the nature of the
relation in which Monsieur A and Madame B stand to Mr. X, or other information
the Applicants might have wished be covered by a confidentiality order. For the
same reason, for the purposes of the deadlines set out in the Order dated
September 9, 2008 for filing affidavits and communicating to the Court the
PSC’s certified record, the effect of this Order will be suspended until the
determination of any appeal of this Order to a Judge of this Court, or the
expiration of the time provided in the Rules for filing such an appeal, if no
appeal is filed. The materials filed confidentially by the Applicants in
support of this motion will also continue to be treated confidentially during
that period of time.
[38]
In ordering that
suspension, I take into account that the hearing of an appeal of this Order
pursuant to Rule 51 of the Federal Courts Rules should not require more
than 2 hours and can therefore be heard at the earliest convenient General
Sittings, well before the parties would be required to file their respective
records in accordance with the scheduling order issued on September 9, 2008.
The short suspension I therefore envisage would not delay the orderly progress
of this application or its timely determination. If the present order is
appealed and maintained on appeal, it will be up to the Judge to determine
whether his or her order should be stayed or suspended pending a possible
appeal to the Court of Appeal.
ORDER
IT IS ORDERED THAT:
1.
The Applicants shall,
no later than 10 days from the date of this order, serve and file, under
confidential seal, amended notices of application in which the style of cause shall
state their full names.
2.
Notwithstanding the
confidential filing of an amended notice of application pursuant to paragraph
1, all future filings in this matter shall continue to use the designations
Mr. X, Monsieur A and Madame B in the style of cause.
3.
The following
information, hereinafter designated as the “Confidential Information”, shall be
treated confidentially for the purposes of these proceedings:
(a)
The names, addresses
and city of residence of the Applicants.
(b)
The exact position held
in the Canadian public service by the Applicant designated as Mr. X.
(c)
The institutions at
which and programmes for which either or both of the Applicants designated as
Monsieur A and Madame B study, and medical information concerning either or
both of them.
(d)
The specific relation
in which the Applicants designated as Monsieur A and Madame B stand to the
Applicant designated as Mr. X.
4.
Subject to compliance
with paragraphs 5 to 7 of this order, the affidavits and exhibits already filed
by the Applicants under confidential seal shall remain confidential.
5.
The Applicants shall,
within 5 days from the date of this order, prepare a version of the affidavits
and exhibits each of them has filed and a version of the certified record they
have received from the Respondent, from which Confidential Information is to be
redacted, and serve same on the other parties for their approval or comments.
6.
The receiving parties
shall, within 5 days of service of the proposed versions, either approve the
redacted versions as corresponding to the terms of this order, or provide the
other parties with their comments.
7.
Redacted versions of
the affidavits and exhibits, and of the certified record, as approved by all
parties, shall be filed within the times specified in the scheduling order of
September 9, 2008. If no agreement is reached, each party’s proposed versions
of the redacted documents shall, within the same delays, be submitted
confidentially to the Court, along with their submissions, for determination by
the Court as to which version is to be placed on the public Court record.
8.
Whenever any party
intends to submit for filing on the Court record affidavits or documentary
exhibits containing Confidential Information, they shall submit same under
seal, accompanied by a copy from which the Confidential Information will have
been redacted, for placing on the public record.
9.
All parties shall
refrain from mentioning Confidential Information in any written representations
or memoranda of fact and law to be filed in this application. If any party
considers it necessary that Confidential Information be mentioned in written
representations, that party shall, prior to filing the document at issue, make
a motion for leave to file the written submissions or memorandum
confidentially, or to vary this order to remove the information in question
from the definition of “Confidential Information”.
10.
For the purposes of the
schedule set out in paragraphs 8 (a), (b) and (g) of the order of September 9,
2008, this order shall only become effective on the date of the determination
of any motion to appeal this order, brought in accordance with Rule 51 of the Federal
Courts Rules, or, if no appeal is brought, at the expiration of the time
provided in the Federal Courts Rules to file such a motion.
“Mireille Tabib”
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