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FOI (Fed) - Access to Information Act (ATIA). Kandasamy v. Canada (Attorney General)
In Kandasamy v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal of earlier dismissals of two JRs, here against ATIA personal information record disclosure refusals by CSIS.
These extracts illustrate the ATIA procedures in such cases:[3] Public Safety responded to Mr. Kandasamy’s request in two parts. First, it disclosed some records. Second, and pursuant to section 16 of the Privacy Act, R.S.C. 1985, c. P-21, Public Safety neither confirmed nor denied that some of the records requested exist. It added that, if they exist, such records could reasonably be exempt from disclosure under section 21 of the Privacy Act as they relate to Canada’s efforts against subversive or hostile activities.
[4] CSIS responded to Mr. Kandasamy’s request in three parts. First, it wrote that one of the personal information banks identified by Mr. Kandasamy did not exist. Second, it advised that it found no personal information concerning Mr. Kandasamy in some of the banks in respect of which he had made requests. Third, as for the remaining banks, CSIS neither confirmed nor denied that some of the requested records exist. It added that, if they exist, such records either would be exempt or could reasonably be exempt from disclosure under sections 18, 21 and/or 22 of the Privacy Act. These provisions concern personal information banks designated as exempt by the Governor-in-Council, banks that relate to Canada’s efforts against subversive or hostile activities, and banks that relate to certain types of investigations.
[5] Unsatisfied with these responses, Mr. Kandasamy filed complaints with the Office of the Privacy Commissioner. The Office found the complaints ill-founded. Mr. Kandasamy then applied to the Federal Court for judicial review of the decisions of Public Safety and CSIS.
[6] The Federal Court noted that Mr. Kandasamy had not raised any specific errors regarding the decisions of Public Safety and CSIS. Nevertheless, the Federal Court performed a comprehensive analysis of the decisions to determine (1) whether Public Safety and CSIS had reasonably applied the statutory provisions on which they relied; and (2) whether they had reasonably exercised their discretion not to disclose the information sought. Taking into consideration the nature of the information sought, the wording of the Privacy Act’s provisions relied upon by Public Safety and CSIS, and the relevant jurisprudence, the Federal Court concluded that these institutions had reasonably applied the provisions on which they relied. The Federal Court further concluded that it was reasonable, and in respect of certain records legally required, for Public Safety and CSIS to neither confirm nor deny that some records exist.
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[11] With respect to the Federal Court’s orders that some materials be kept confidential and sealed, I understand that as a self-represented litigant, Mr. Kandasamy may be concerned that he did not have access to these materials. To alleviate his concerns, I offer the following brief explanation. It is common for the Federal Court to make confidentiality orders as it did in the present matter: Ruby v. Canada (Solicitor General), 2002 SCC 75 at paras. 41, 60; Dzevad Cemerlic MD v. Canada (Solicitor General), 2003 FCT 133 at para. 6; Westerhaug v. Canadian Security Intelligence Service, 2009 FC 321 at para. 8; Braunschweig v. Canada (Public Safety), 2014 FC 218 at paras. 5–6; Russell v. Canada (Attorney General), 2019 FC 1137 at paras. 31–32; V.B. v. Canada (Attorney General), 2018 FC 394 at paras. 10–12; and Chin v. Canada (Attorney General), 2022 FC 464 at paras. 24–25. This is so because subsection 46(1) of the Privacy Act requires the Federal Court to take every reasonable precaution to avoid disclosure of (a) information that a government institution is authorized to refuse to disclose; and of (b) confirmation as to whether such information exists. By ordering that information be designated and treated as confidential, the Federal Court complies with its statutory obligation of precaution. The orders also allow the Federal Court to determine whether or not information exists, whether or not the exemptions being claimed by the government institution are applicable and, if necessary, to review the exercise of the government institution’s discretion not to disclose the information. In other words, these confidentiality orders assist the Federal Court, and on appeal this Court, in determining whether the government institution complied with the law. . Blank v. Canada (Justice)
In Blank v. Canada (Justice) (Fed CA, 2023) the Federal Court of Appeal considered (and dismissed) an interlocutory appeal in an ATIA (Access to Information Act) JR, here of orders allowing the respondent "to file a confidential affidavit and confidential exhibits":[2] The context is an application to the Federal Court for judicial review under section 41 of the Access to Information Act, R.S.C. 1985, c. A-1 [Access Act] of the respondents’ refusal to disclose certain records requested by the appellant.
[3] The respondents released a total of 24,730 pages with 20,111 pages redacted in whole or in part. The redactions were made pursuant to various provisions of the Access Act, including subsection 16(2), subsection 19(1), section 23 and paragraph 68(a).
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[5] In connection with the section 41 application, the respondents brought a motion pursuant to Rule 151 of the Federal Courts Rules, S.O.R./98-106 [Rules] seeking to file a confidential affidavit with unredacted copies of the relevant records.
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[9] The confidentiality order was issued pursuant to Rule 151 and subsection 47(1) of the Access Act. Rule 151 provides that the Court may order that material be treated as confidential, provided the Court is satisfied that the material should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings.
[10] Subsection 47(1) of the Access Act directs the Court, in the context of a section 41 application, to take precautions to avoid premature disclosure of information. Subsection 47(1) provides:Court to take precautions against disclosing
47 (1) In any proceedings before the Court arising from an application under section 41 or 44, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of
(a) any information or other material on the basis of which the head of a government institution would be authorized to refuse to disclose a part of a record requested under this Part; or
(b) any information as to whether a record exists where the head of a government institution, in refusing to disclose the record under this Part, does not indicate whether it exists.
Précautions à prendre contre la divulgation
47 (1) Dans les procédures découlant des recours prévus aux articles 41 et 44, la Cour prend toutes les précautions possibles, notamment, si c’est indiqué, par la tenue d’audiences à huis clos et l’audition d’arguments en l’absence d’une partie, pour éviter que ne soient divulgués de par son propre fait ou celui de quiconque :
(a) des renseignements qui, par leur nature, justifient, en vertu de la présente partie, un refus de communication totale ou partielle d’un document;
(b) des renseignements faisant état de l’existence d’un document que le responsable d’une institution fédérale a refusé de communiquer sans indiquer s’il existait ou non. [11] The essence of a section 41 application is to determine whether statutory exemptions apply that were relied on by the government in withholding information: Blank v. Canada, 2005 FCA 405 at para. 18 [Blank 2005]. The Court’s process should not result in disclosure before the Court makes a substantive ruling on the availability of these exemptions.
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[14] The appellant does not oppose the filing of a confidential affidavit altogether. Consistent with this Court's guidance in Blank 2005, the appellant acknowledges that the Confidential Affidavit should include all of the records at issue in the section 41 application.
[15] In Blank 2005 at paragraph 18, the Court stated that section 47 must apply not only to the record that is the subject of the section 41 (or section 42) proceeding, but to other material or information which, if disclosed in the course of the proceeding, would disclose some or all of the contents of the record itself. . Actial Farmaceutica S.R.L. v. Canada (Health)
In Actial Farmaceutica S.R.L. v. Canada (Health) (Fed CA, 2023) the Federal Court of Appeal considered an appeal of a denied ATIA s.44(1) ["Third party may apply for review"] 'review' of a decision by the Minister of Health to deny access to records [under AITA s.20(1), see below] "pertaining to a food supplement (VSL) licensed to Ferring Inc. under the Natural Health Products Regulations, S.O.R./2003-196":[2] Subsection 20(1) of the ATIA requires the head of a government institution to refuse to disclose any record that contains, among other things,. trade secrets of a third party (s. 20(1)(a));
. financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party (s. 20(1)(b));
. information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party (s. 20(1)(c)); or
. information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party (s. 20(1)(d)). [3] By subsections 27(1) and 28(1) of the ATIA, if the head of a government institution intends to disclose a requested record that contains (or that the head has reason to believe might contain) information in any of these categories, the head must notify the third party and give the third party an opportunity to make representations as to why the record should not be disclosed. If the head then decides to disclose the record, the third party who received the notice may, by subsection 44(1), apply to the Federal Court for a review of the matter.
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[8] ... There is no dispute that, in an application under subsection 44(1), the applicant bears the burden of showing that an exemption applies: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 92. The parties also agree that the applicable standard of review on this issue is the highly deferential standard of palpable and overriding error: Canada (Health) v. Elanco Canada Limited, 2021 FCA 191 at paras. 32-33. This means that it is no part of our role on appeal to reweigh the evidence considered by the Federal Court.
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[11] We have considered the record before us, the reasons of the Federal Court, and the submissions of the parties. Having done so, we can see no palpable and overriding error on the part of the Federal Court. There is, accordingly, nothing that could warrant our interfering with its determination that Actial failed to meet its burden. . Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al.
In Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al. (Fed CA, 2023) the Federal Court of Appeal considers an appeal from an unusual multi-party Access to Information Act (AIA) statutory de novo 'review' [under s.44(1)] (neither an appeal nor a JR) at the Federal Court.
In these quotes, the court makes the important point that the 'open court' principle does not apply to AIA-scheduled institutions [see para 55] (a principle which may apply to Ontario FIPPA/MFIPPA as well):D. If the Withheld Information does contain personal information, did the Federal Court fall into palpable and overriding error in not disclosing those documents pursuant to the open court principle?
[54] The Families argued that the material in the Parole Board’s hands, including audio recordings and the documents that the Board considered in dealing with Mr. Munro’s and Mr. Bernardo’s applications for parole, should have been released pursuant to the open court principle.
[55] The open court principle does not apply to Corrections Canada as it is a government institution listed in Schedule 1 to the AIA. Its mission is to operate correctional institutions for offenders with a view to returning them to society as law-abiding citizens. In the course of that mandate, it collects information and creates records about the persons in its charge for the purpose of managing their experience so as to achieve its ultimate mission. As the list of the records it creates and maintains set out in paragraph 45 above indicates, most if not all of that information is personal information. It is not a tribunal, let alone an adjudicative tribunal, and is therefore not subject to the open court principle.
[56] This Court dealt with the application of the open court principle to the Parole Board in Canadian Broadcasting Corporation v. Parole Board of Canada, 2023 FCA 166, [CBC] released contemporaneously with these reasons. In that decision, the Court examined the jurisprudence underlying the application of the open court principle to administrative tribunals. The Court found that the application of that principle to a tribunal based on whether it was quasi-judicial was no longer relevant. It decided instead that a better indicator of whether the open court principle applied was whether the tribunal in question was an adjudicative tribunal, that is, a tribunal that presided over adversarial proceedings in which questions of rights and obligations were decided.
[57] The Federal Court agreed with the Parole Board when it said that it was not subject to the open court principle because the proceedings before it were not adversarial but inquisitorial. The fact that the state’s interest was not represented before the Board was indicative of the absence of adversarial proceedings. In addition, the Board argued that it did not adjudicate rights but rather assessed risk.
[58] In their memorandum of fact and law, the Families write at length about the open court principle, but their submissions are unpersuasive. For example, they argue that the open court principle has equal application to all administrative tribunals, including the Parole Board, as the legitimacy of their proceedings can be effectively monitored only if their proceedings are open to the public, citing Southam Inc. v. Canada Minister of Employment and Immigration, 1987 CanLII 9001 (FC), [1987] 3 F.C. 329, 13 F.T.R. 138 (T.D.) [Southam]. Of course, Board hearings are open to the public. As for Southam, it dealt with the application of the open court principle to quasi-judicial tribunals. The Families go on to rely on Justice Morgan’s learned decision in Toronto Star Newspapers Ltd. v. Ontario (Attorney General), 2018 ONSC 2586, 142 O.R. (3d) 266, but that case concerned 13 adjudicative tribunals, all of which are designated as “institutions” in the Schedule to the Freedom of Information and Protection of Privacy Act, a designation which created the conflict between those tribunals and the freedom of information legislation.
[59] Other cases which the Families relied on all dealt with the application of the open court principle to courts of law: Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 (application in the Ontario Court of Justice), Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 (application in the Federal Court of Canada), CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002), 2002 CanLII 41398 (ON CA), 59 O.R. (3d) 18, 5 C.R. (6th) 189 (C.A.) (application in the Ontario Superior Court of Justice), Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20, [1989] 2 S.C.R 1326, (Alberta Judicature Act), Sherman Estate (application in the Ontario Superior Court of Justice).
[60] In addition, none of those cases holds that privacy interests must always be subordinated to the open court principle. The Sherman Estate case says the opposite:... Further, in assessing the constitutionality of a legislative exception to the open court principle, this Court has recognized that the protection of individual privacy can be a pressing and substantial objective (Edmonton Journal, at p. 1345, per Cory J.; see also the concurring reasons of Wilson J., at p. 1354, in which “the public interest in protecting the privacy of litigants generally in matrimonial cases against the public interest in an open court process” was explicitly noted). …
... In F.N. (Re), this was the personal interest that young offenders had in remaining anonymous in court proceedings as a means of encouraging their personal rehabilitation (para. 11). All of society had a stake, according to Binnie J., in the young person’s personal prospect for rehabilitation. This same idea from F.N. (Re) was cited in support of finding the interest in Sierra Club to be a public interest. …
Sherman Estate at paras. 52–53 [61] In the result, the Families have not shown that the open court principle applies to the Parole Board or to Corrections Canada. In CBC, this Court found that the CBC was not entitled to copies of audio recordings of Parole Board hearings pursuant to the open court principle.
[62] In light of the conclusion that the Parole Board is not an adjudicative tribunal, the question of the production of adjudicative records does not arise. As a result, the Families are not entitled to what they seek from the Parole Board pursuant to the open court principle. . Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al.
In Fraser et al. v. Canada (Public Safety and Emergency Preparedness) et al. (Fed CA, 2023) the Federal Court of Appeal considers an appeal from an unusual Access to Information (AIA) statutory de novo court 'review' (neither an appeal nor a JR) [under s.44(1)] at the Federal Court, revealing some of the procedures:[1] This is an appeal from a decision of the Federal Court (per Justice McVeigh) reported as 2021 FC 821. In that decision, the Federal Court dealt with five applications under section 41 of the Access to Information Act, R.S.C. 1985, c. A-1 (the AIA) having to do with the refusals of Correctional Service Canada (Corrections Canada) and the Parole Board of Canada (the Board) to disclose records relating to certain offenders to the families of the victims of those offenders. ....
[2] In substance, the appellants rested their case largely on their view that the offenders’ incarceration and parole records stood to be disclosed on the same basis as the records produced at their trials because they were part of the offenders’ sentencing. Underlying this argument was the conviction that the offenders had lost their privacy rights in these records because of their violent and highly publicized offences.
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[13] The Families made their requests to Corrections Canada and the Board under the AIA. When their requests were refused, they referred them to the Information Commissioner pursuant to section 30 of the AIA. The Commissioner investigated their complaints and in all cases upheld the refusal to disclose the records. The Families then applied for a review of each refusal by the Federal Court pursuant to section 41 of the AIA which is reproduced below:41 (1) A person who makes a complaint described in any of paragraphs 30(1)(a) to (e) and who receives a report under subsection 37(2) in respect of the complaint may, within 30 business days after the day on which the head of the government institution receives the report, apply to the Court for a review of the matter that is the subject of the complaint.
41 (1) Le plaignant dont la plainte est visée à l’un des alinéas 30(1)a) à e) et qui reçoit le compte rendu en application du paragraphe 37(2) peut, dans les trente jours ouvrables suivant la réception par le responsable de l’institution fédérale du compte rendu, exercer devant la Cour un recours en révision des questions qui font l’objet de sa plainte.
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