|
|
Document
|
|
P-1538
|
|
|
|
|
|
File #
|
|
P-9700328
|
|
|
|
|
|
Institution/HIC
|
|
Ministry of the Attorney General
|
|
|
|
|
|
Summary
|
|
NATURE OF THE APPEAL:
The Ministry of the Attorney General (the Ministry) received a request under the Freedom of
Information and Protection of Privacy Act (the Act). The request was for all documents and
records concerning a named individual and an organization with which the individual had been
associated. The appellant provided the written consent of the individual to the disclosure of his
personal information to her. For the sake of simplicity, in this order I will refer to the individual
to whom the records relate as the appellant, rather than the person who made the request.
The Ministry located a large number of records and disclosed 56 pages to the requester, in whole
or in part, denying access to a further 87 pages in their entirety. The Ministry claimed that these
records, or parts of records, were exempt from disclosure under the following exemptions
contained in the Act:
× advice or recommendations - section 13(1)
× law enforcement - sections 14(1)(a), (b), (c), (d) and (g)
× solicitor-client privilege - section 19
× invasion of privacy - sections 21(1) and 49(b)
× discretion of refuse requester’s own information - section 49(a)
The Ministry sent the appellant a second decision letter in which it advised that it intended to
rely on the exemptions set out above, as well as section 20 of the Act (danger to safety or health).
The appellant appealed the Ministry’s decision. The appellant also confirmed with this office
that the request was limited to exclude any personal information of identifiable individuals other
than the appellant.
The Commissioner’s office then provided the appellant and the Ministry with a Notice of Inquiry
soliciting their submissions on the application of the exemptions to the subject records.
Representations were received from the Ministry only. Because the records appeared to contain
the personal information of other identifiable individuals, representations were solicited from a
further five persons. I received submissions by telephone on behalf of three of these individuals
objecting to the disclosure of any information which relates to them. One Notice was returned as
undeliverable.
The Ministry also made submissions on the application of section 15(b) of the Act to several
pages of records. This exemption is intended to exempt records whose disclosure could
reasonably be expected to result in harm to intergovernmental relations. Because of the manner
in which I have addressed the application of the law enforcement exemptions to these records, it
is not necessary for me to decide whether section 15(b) applies to them, or to address the
propriety of its application by the Ministry at the inquiry stage of the appeal.
DISCUSSION:
PERSONAL INFORMATION/INVASION OF PRIVACY
Under section 2(1) of the Act, “personal information” is defined, in part, as “recorded
information about an identifiable individual”. I have carefully reviewed each of the records at
issue and find that:
- 2 -
[IPC Order P-1538/March 5, 1998]
× the undisclosed portions of Records 1-1, 1-3, 1-4 and 3-32 to 3-33, as well as Records 3-31, 3-34
to 35, 5-4 to 5-5, 5-9 to 5-11, 5-34 to 5-36 and 5-45, contain only the personal information of
individuals other than the appellant;
× the undisclosed portions of Records 4-2 to 4-4, 4-15 to 4-16 and 4-33 to 4-34, as well as Records
3-20, 3-27 to 3-28, 3-30, 4-1, 4-5, 4-6, 4-8, 4-9, 4-10 to 4-11, 4-13 to 4-14, 4-17, 4-23 to 4-24, 4-
29 to 4-31 and 4-35 to 4-39 contain only the personal information of the appellant;
× Records 5-1 to 5-3, 5-6 to 5-8, 5-12 to 5-27, 5-29 to 5-33, 5-37 to 5-44, 5-46 to 5-48 and -49 to
68 contain the personal information of the appellant, as well as that of other identifiable
individuals;
× Records 2-3, 3-1 to 3-6, 3-8, 3-9 to 3-13, 3-15 to 3-19, 3-22 to 3-23 and 5-28, as well as the
undisclosed portions of Records 3-36 to 3-37 do not contain any personal information.
I have found that the undisclosed portions of Records 1-1, 1-3, 1-4 and 3-32 to 3-33, as well as
Records 3-34 to 35, 5-4 to 5-5, 5-9 to 5-11, 5-34 to 5-36 and 5-45, contain only the personal
information of individuals other than the appellant. As noted above, the appellant has confirmed
that he is not seeking access to any personal information which relates solely to another
individual. Accordingly, I find that these portions of the records are not responsive to the
request. I will not, therefore, consider them further.
Records 2-3, 3-1 to 3-6, 3-9 to 3-13, 3-15 to 3-19, 4-2 to 4-4, 4-9, 4-15 to 4-16 and 4-33 to 4-34
contain references to other identifiable individuals. In my view, however, because these
individuals are referred to in their capacities as professionals or as a spokesperson for a particular
organization, the information cannot be characterized as their personal information (Orders P-
157, P-270, M-1036, P-1523, P-1524 and P-1535).
The sole exemptions claimed for Records 2-3, 3-1 to 3-6, 3-9 to 3-13, 3-15 to 3-19, 4-2 to 4-4, 4-
9, 4-15 to 4-16 and 4-33 to 4-34 were the invasion of privacy exemptions in sections 21(1) and
49(b). I have found that these records either do not contain any personal information or contain
only the personal information of the appellant. No other mandatory exemptions have been
claimed for these documents. Accordingly, because their disclosure would not constitute an
unjustified invasion of personal privacy under section 49(b), they should be disclosed to the
appellant.
DISCRETION TO REFUSE REQUESTER’S OWN INFORMATION
I have found that most of the remaining records contain the appellant’s personal information.
Section 47(1) of the Act gives individuals a general right of access to their own personal
information held by a government body. Section 49 provides a number of exceptions to this
general right of access.
Under section 49(a) of the Act, the Ministry has the discretion to deny access to an individual’s
own personal information in instances where certain exemptions would otherwise apply to that
information. Section 49(a) states as follows:
- 3 -
[IPC Order P-1538/March 5, 1998]
A head may refuse to disclose to the individual to whom the information relates
personal information,
where section 12, 13, 14, 15, 16, 17, 18, 19, 20 or 22 would apply
to the disclosure of that personal information; [emphasis added]
In order to determine whether the exemption provided by section 49(a) applies in this case, I will
begin by considering the Ministry’s claims that particular records qualify for exemption under
sections 13(1), 14(1), 19 and 20, which are referred to in section 49(a).
LAW ENFORCEMENT
The Ministry submits that Records 3-20, 4-6, 4-10 to 4-11, 4-13 to 4-14, 4-17, 4-23 to 4-24, 4-29
to 4-32 and 4-35 to 4-39 are exempt from disclosure under section 14(1)(g) as they contain law
enforcement intelligence information received by the Ministry from several law enforcement
agencies.
The Ministry also submits that Records 5-1 to 5-68 are exempt under sections 14(1)(a) to (d) as
they consist of records whose disclosure could reasonably be expected to interfere with a law
enforcement matter or investigation, would reveal investigative techniques or would disclose the
identity of a confidential source of information in respect of a law enforcement matter. The
Ministry indicates that the investigation which is the subject of these documents remains ongoing
and relates directly to a law enforcement matter.
Sections 14(1)(a) to (d) and (g) provide:
A head may refuse to disclose a record where the disclosure could reasonably be
expected to,
(a) interfere with a law enforcement matter;
(b) interfere with an investigation undertaken with a view to a
law enforcement proceeding or from which a law
enforcement proceeding is likely to result;
(c) reveal investigative techniques and procedures currently in
use or likely to be used in law enforcement;
(d) disclose the identity of a confidential source of information
in respect of a law enforcement matter, or disclose
information furnished only by the confidential source;
(g) interfere with the gathering of or reveal law enforcement
intelligence information respecting organizations or persons;
In order to qualify for exemption under sections 14(1)(a) to (d) and (g), the matter to which the
records relate must first satisfy the definition of the term “law enforcement” found in section
- 4 -
[IPC Order P-1538/March 5, 1998]
2(1) of the Act. Section 2(1) of the Act defines “law enforcement” in the following manner:
“law enforcement” means,
(a) policing,
(b) investigations or inspections that lead or could lead to
proceedings in a court or tribunal if a penalty or sanction
could be imposed in those proceedings, and
(c) the conduct of proceedings referred to in clause (b).
Following my review of all of the records to which the Ministry has applied the section 14(1)
exemptions, I find that they relate to matters which fall within the definition of “law
enforcement” found in section 2(1).
I have reviewed Records 3-20, 4-6, 4-10 to 4-11, 4-13 to 4-14, 4-17, 4-23 to 4-24, 4-29 to 4-32
and 4-35 to 4-39 and I find that their disclosure could reasonably be expected to reveal law
enforcement intelligence information respecting certain organizations and persons. Because of
the nature of the information contained in these records, I am unable to describe them in detail.
Because these records qualify for exemption under section 14(1)(g), they are exempt from
disclosure under section 49(a).
The purpose of the sections 14(1)(a) and (b) exemptions is to provide the Ministry with the
discretion to preclude access to records in circumstances where disclosure would interfere with
an ongoing law enforcement investigation [Orders P-324 and P-403]. I find that the matter
addressed in each of Records 5-1 to 5-68 relate to an ongoing law enforcement investigation. I
further find that the disclosure of this information could reasonably be expected to interfere with
the investigation. Records 5-1 to 5-68 qualify for exemption under section 14(1)(b) and are,
therefore, exempt under section 49(a).
SOLICITOR-CLIENT PRIVILEGE
The Ministry submits that Records 3-8, 3-14, 3-27 to 3-28, 3-30, 3-31, 4-1, 4-5 and 4-8 are
exempt from disclosure under section 19 of the Act. This section consists of two branches,
which provide a head with the discretion to refuse to disclose:
1. a record that is subject to the common law solicitor-client privilege;
(Branch 1) and
2. a record which was prepared by or for Crown counsel for use in giving
legal advice or in contemplation of or for use in litigation (Branch 2).
The Ministry argues that these records fall within the ambit of Branch 2 of section 19. Two
criteria must be satisfied in order for a record to qualify for exemption under Branch 2:
1. the record must have been prepared by or for Crown counsel; and
- 5 -
[IPC Order P-1538/March 5, 1998]
2. the record must have been prepared for use in giving legal advice, or in
contemplation of litigation, or for use in litigation.
[Order 210]
The Ministry submits that each of these records were prepared by or for Crown counsel for use
in giving legal advice and/or in contemplation of litigation in relation to a police investigation
and possible charges being laid.
I have reviewed each of the documents to which section 19 has been applied and find that
Records 3-8, 3-14, 3-27 to 3-28, 3-30, 3-31, 4-1, 4-5 and 4-8 were prepared by or for Crown
counsel for use in giving legal advice or were prepared in contemplation of litigation. These
records qualify, therefore, for exemption under Branch 2 of the section 19 exemption. I further
find that the privilege in these documents is maintained as they contain information which may
give rise to criminal litigation against the appellant or other individuals in the future (Order
P-1342).
Accordingly, Records 3-8, 3-14 and 3-31 qualify for exemption under Branch 2 of section 19 and
because Records 3-27 to 3-28, 3-30, 4-1, 4-5 and 4-8 contain the personal information of the
appellant, they are exempt under section 49(a) of the Act.
DANGER TO SAFETY OR HEALTH
The Ministry submits that Records 3-22 and 3-36 to 3-37 are exempt from disclosure under
section 20 of the Act. It argues that because these materials are rife with offensive, inflammatory
and hateful comments and images directed at identifiable groups, their publication can
reasonably be expected to seriously threaten the health and safety of members of those groups
who have been targeted by such hate propaganda.
The Ministry urges me to rely on the wording of the prohibitions against the dissemination of
hate propaganda which are found in the Criminal Code to find that these records fall within the
ambit of section 20. It indicates that it is reluctant to participate in the further dissemination of
this type of material, particularly pursuant to a request under the Act. The Ministry also refers to
a decision of the Supreme Court of Canada, R v. Keegstra (1990), 61 C.C.C. (3d) 1, quoting
former Chief Justice Brian Dickson at pp. 36-37 of the decision as follows:
Disquiet caused by the existence of such material is not simply the product of its
offensiveness, however, but stems from the very real harm which it causes.
Essentially, there are two sorts of injury caused by hate propaganda. First, there
is the harm done to members of the target group. It is indisputable that the
emotional damage caused by words may be of grave psychological and social
consequence.
...
The derision, hostility and abuse encouraged by hate propaganda therefore have a
severely negative impact on the individual’s sense of self-worth and acceptance.
...
- 6 -
[IPC Order P-1538/March 5, 1998]
The threat to the self-dignity of target group members is thus matched by the
possibility that prejudiced messages will gain some credence, with the attendant
result of discrimination, and perhaps even violence, against minority groups in
Canadian society. With these dangers in mind, the Cohen Committee made clear
in its conclusions that the presence of hate propaganda existed as a baleful and
pernicious element, and hence a serious problem, in Canada.
Finally, the Ministry points out that the disclosure of information under the Act which is not
“personal information” is considered to be disclosure to the world, and not just to the requester.
I am disturbed by the subject matter of these records and find abhorrent the messages which they
convey. Records 3-22 and 3-36 to 3-37 state that they originated with the organization which is
the subject of the request. Presumably, the appellant is aware of their content and may have even
participated in their creation. I agree with the comments of the former Chief Justice of Canada
with respect to the negative impact which hate propaganda such as that reflected in Records 3-22
and 3-36 to 3-37 has on the minorities targeted by such material and on Canadian society
generally. I also acknowledge that the disclosure of this information to the appellant under the
general access provisions of the Act may be considered to be disclosure to the world, as was
recently reiterated by Assistant Commissioner Tom Mitchinson in Order P-1499 in the context of
section 14(1)(e) of the Act.
In my view, the Act was not intended to assist individuals in the propagation and dissemination
of hate propaganda, nor to put the government in the position of being required to do so, whether
by disclosure to the individual or group responsible for creating it or to others seeking access as
members of the general public.
In Order P-1482, Inquiry Officer Laurel Cropley addressed the application of section 20 to
records containing hate propaganda. The offensive nature of the material at issue in the appeal
which gave rise to Order P-1482 and the present appeal are similar. In that order, Inquiry Officer
Cropley held that because these records had already been published and the appellant in that case
was aware of their nature, their disclosure could not reasonably be expected to seriously threaten
the safety or health of any individual.
With respect, I must disagree with this finding. In my view, the fact that this type of material has
already been published would provide no defence to a charge of willfully promoting hatred under
the Criminal Code and is irrelevant for the purpose of establishing that the harm contemplated by
section 20 is reasonably likely to occur should the information be disclosed. In addition, I find
that the fact that this particular appellant was aware of the nature of the information contained in
the records similarly has no bearing on the issue of harm under section 20.
The Supreme Court of Canada in the Keegstra case recognized that harm to individuals and
identifiable groups within Canadian society can reasonably be expected to flow from the
dissemination of such material. In my view, the promotion of hatred against identifiable groups
in Canadian society is the purpose behind the publication of information like Records 3-22 and
3-36 to 3-37 by groups such as that led by the appellant. Accordingly, I find that the disclosure
of this information could reasonably be expected to result in precisely the type of harm
contemplated by section 20 of the Act. Because of the scurrilous nature of the information
contained in Records 3-22 and 3-36 to 3-37, I accept that its disclosure could reasonably be
- 7 -
[IPC Order P-1538/March 5, 1998]
|
|
|
|
|
|
Legislation
|
|
|
|
|
|
|
|
Subject Index
|
|
|
|
|
|
|
|
Signed by
|
|
Donald Hale
|
|
|
|
|
|
Published
|
|
Mar 05, 1998
|
|
|
|
|
|
Type
|
|
Order
|
|
|
|
|
|
Orders and Reports Considered
|
|
R-980015
|
|
|
|
|
|
Judicial Review
|
|
Institution's application abandoned August 11, 2000
Citation for Order P-1538:
Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), Toronto Doc. 199/98 (Ont. Div. Ct.)
Citation for Reconsideration Order R-980015:
Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), Toronto Doc. 39/98 (Ont. Div. Ct.)
|
|
|
|
|
|
<<
Back
|
|
|