The Information and Privacy Commissioner, Ed Ring, has been involved in a court case for which the decision has been rendered within the past month. The case stemmed from a different view on the interpretation of Section 5 of the Access to Information and Protection of Privacy Act (ATIPPA) between a public body and the Commissioner's Office. One of the primary functions of this Office is to conduct a review when an applicant has been denied access to record(s) which they have requested from a government department or agency. Normally, this requires that this Office review the records which were denied to the applicant in conjunction with the relevant sections of the ATIPPA and in consideration of any relevant case law or supporting evidence provided by the public body for whom the burden of proof lies.

Section 5 of the ATIPPA lists a number of categories of records which are not subject to the ATIPPA. Our previous practice in cases such as this was to simply review the records in order to confirm whether they fit into one of the categories in Section 5, and if so, we determined that we had no further jurisdiction. If we found that the records, or a portion thereof, did not actually fit within one of the Section 5 categories, we would complete the review and issue any necessary recommendations in a Report.

With this case, however, the public bodies involved interpreted the ATIPPA to conclude that there was no jurisdiction on the part of the Commissioner to review any records where there was a claim of Section 5.

The fundamental question here is whether a public body should have the ability to deny any access to the Commissioner based on Section 5. Simply stated, should a public body that is subject to the Act, be able to tell the Commissioner charged with oversight that the matter/records in question are not within his/her jurisdiction? As a result of the disagreement on interpretation, the matter was referred to court for judicial review on February 10, 2009 and was heard on April 2, 2009. The decision was rendered by The Honourable Mr. Justice Robert A. Fowler on February 3, 2010.

In this decision Justice Fowler recognized a problem and stated, "This is indeed a conundrum and raises the question, does the Commissioner simply accept the opinion of the head of a public body that the information being requested does not fall under the authority of the Act. If that were the case, the argument could be made that it could be seen to erode the confidence of the public in the Act by an appearance or perception that the process is not independent, transparent or accountable. For example, it could be argued that the head of a public body could intentionally withhold information from review by the Commissioner by simply stating it falls under section 5(1) for which the Act does not apply. The question then becomes, how can the Commissioner look behind that to verify the claim and determine his own jurisdiction."

Judge Fowler further stated, "I accept that in the instant case there are difficulties in determining how the Commissioner can gain access to certain information deemed to be outside the Act as defined by Section 5(1). However, as the Act is presently configured, it would require a legislative amendment to rectify this unfortunate circumstance. As in the Canoe case, I am satisfied that for the ATIPPA to achieve its full purpose or objectives, the Commissioner should be able to determine his own jurisdiction. This would not require complex measures to safe guard those special areas where access is off limits. However, it is not for this court to rewrite any prevision of the Act. It must be remembered that the Commissioner under no circumstances can release information or order the head of a public body to release information. He can only recommend such release which can be refused by the head of the public body resulting in an appeal process to the Trial Division."

Judge Fowler concluded by stating, "The Legislature of this Province is the author of this Act and if a solution is required, it is for that branch of government to create it."

The Commissioner, having considered the above and bearing in mind that there are a number of options available to this Office to deal with Section 5 claims, (including asking a court to make the necessary determination), has decided not to appeal this decision but to seek remedy in the legislative review of ATIPPA that will be launched in the near future by the Department of Justice. "I am pleased with the appointment of Mr. John Cummings, Q.C. as the Legislative Review Commissioner. I believe his background and experience working with legislation will result in a comprehensive review and a high quality report and recommendations."

It is worthy to note that the Access provisions of ATIPPA were proclaimed in January 2005 and the privacy provisions in January 2008. The legislation is relatively new compared to a number of other jurisdictions in this country. Prior to the recent decision by Judge Fowler, there has been very little jurisprudence relating to the interpretation of this legislation. Judicial interpretation is important as the legislation matures and develops, and I believe it is healthy and necessary and ultimately should lead to clarity in interpreting the legislation.

The Commissioner acknowledges and appreciates the significant work of all public bodies who have had occasion to deal with our Office as we serve the people of the Province. "Although we have not always agreed, I believe the interaction has always been conducted in good faith, and with professionalism and integrity. It is easy to get the impression that compliance with the ATIPPA has not been as good as it has been because most requests for access to information are routine. The applicant receives the requested information and the matter never comes to our Office for review. Even when there are issues, this Office has been successful in resolving the matter informally about three quarters of the time. The remainder becomes the subject of a small number of reports issued by this Office."

As was reported on in past annual reports by this Office, the Commissioner is pleased with the level of compliance by public bodies with the Office of the Information and Privacy Commissioner's recommendations provided in our reports and look forward to advancing the development of the legislation as we move through the legislative review process and into the future.

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