Third Party Request for Records ("FIPPA")

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31

21 (1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

(a) upon the prior written request or consent of the individual, if the record is one to which the individual is entitled to have access;

(b) in compelling circumstances affecting the health or safety of an individual, if upon disclosure notification thereof is mailed to the last known address of the individual to whom the information relates;

(c) personal information collected and maintained specifically for the purpose of creating a record available to the general public;

(d) under an Act of Ontario or Canada that expressly authorizes the disclosure;

(e) for a research purpose if,

(i) the disclosure is consistent with the conditions or reasonable expectations of disclosure under which the personal information was provided, collected or obtained,

(ii) the research purpose for which the disclosure is to be made cannot be reasonably accomplished unless the information is provided in individually identifiable form, and

(iii) the person who is to receive the record has agreed to comply with the conditions relating to security and confidentiality prescribed by the regulations; or

(f) if the disclosure does not constitute an unjustified invasion of personal privacy. R.S.O. 1990, c. F.31, s. 21 (1).

(2) A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

(a) the disclosure is desirable for the purpose of subjecting the activities of the Government of Ontario and its agencies to public scrutiny;

(b) access to the personal information may promote public health and safety;

(c) access to the personal information will promote informed choice in the purchase of goods and services;

(d) the personal information is relevant to a fair determination of rights affecting the person who made the request;

(e) the individual to whom the information relates will be exposed unfairly to pecuniary or other harm;

(f) the personal information is highly sensitive;

(g) the personal information is unlikely to be accurate or reliable;

(h) the personal information has been supplied by the individual to whom the information relates in confidence; and

(i) the disclosure may unfairly damage the reputation of any person referred to in the record. R.S.O. 1990, c. F.31, s. 21 (2).

(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,

(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels;

(d) relates to employment or educational history;

(e) was obtained on a tax return or gathered for the purpose of collecting a tax;

(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;

(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or

(h) indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations. R.S.O. 1990, c. F.31, s. 21 (3).

Toronto Star v. AG Ontario, 2018 ONSC 2586 (CanLII)

[57] The very structure of the process that FIPPA puts in place for obtaining records from its designated institutions impinges on the openness principle and s. 2(b) of the Charter, as elaborated by the courts. As reviewed earlier in these reasons, s. 2(1) of FIPPA defines “personal information” in the broadest possible terms, while s. 21(1) (which is reiterated in s. 42(1)) sets out a presumption of non-disclosure of personal information and imposes an onus on the requesting party to justify the disclosure of the record. The IPC in its rulings on disclosure has emphasized that, “In the case of information that qualifies as “personal information” under [FIPPA], there is a strong assumption against disclosure”.[61]

[58] As also explained above, these provisions apply not only to records held by the listed institutions as a matter of the business or administration of the institutions but to Adjudicative Records as well – including evidence filed before tribunals, complaints and other pleadings that form the originating processes before tribunals, dockets and schedules for hearings, transcripts of proceedings, etc. The upshot of these statutory provisions is that the openness principle does not apply as of right to the tribunals governed by the FIPPA process; rather, a person or the press that seeks access to Adjudicative Records bears the onus of establishing that an exception to the non-disclosure of personal information rule applies. Again, this is not an insubstantial onus.

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[61] The CLA case, in other words, did not deal with Adjudicative Records such as those in issue here; and since the documents were investigative and were not part of a record before an adjudicative tribunal, the open court principle did not apply. The same is true of the other cases referred to by counsel for the Attorney General in this regard. One of those cases entails a request by a university employee for a psychological report contained in his personnel records held by the university;[69] another entails a request by a reporter for an Auditor General forensic report “directed at the detection of fraud, waste and wrongdoing involving city resources;”[70] while a third entails a request for hospital records pertaining to the provision of abortion services.[71] None of them entails a request for Adjudicative Records.

[62] As already indicated, FIPPA does not distinguish between Adjudicative Records and non-adjudicative records. But the open court principle in s. 2(b) of the Charter only applies to Adjudicative Records. This very point lies at the core of the Supreme Court’s reasoning in CLA: “Access to documents in government hands is constitutionally protected only where it is…compatible with the function of the institution concerned.”[72] Government agencies and public administrative bodies that hold investigative reports, personnel records, business and accounting records, and the like other than in an Adjudicative Record, are not subject to the open court principle.[73] They are obliged under CLA to implement transparency only where disclosure of their records is necessary for democratic process.

[63] Adjudicative Records, on the other hand, like court records, are not only entirely compatible with transparency but require it for the sake of the integrity of the administration of justice.[74] The rationale for maintaining confidentiality over records accumulated by law enforcement and forensic examiners at the investigation stage of a complaint or dispute does not, absent some special circumstance, continue into the open hearing or post-hearing stage of proceedings.[75] Thus, while access to government business records, including the content of personnel and investigative audits, is granted or withheld subject to the CLA test of “meaningful public discussion”, the question of access to documents filed in the Adjudicative Record before administrative tribunals must be answered in accordance with the Charter,[76] including s. 2(b) and the open court principle.

[64] Like most reverse onus provisions, one purpose and effect of s. 21(1) of FIPPA and the operation of the exceptions thereto is, simply put, to facilitate the government’s case against the party arguing against it.[77] This obviously makes it more difficult for the press and other document requesters to exercise the rights which they otherwise have under the Charter.

[65] This statutory imposition of an onus on the requester to justify the disclosure of Adjudicative Records may or may not be justifiable, but it certainly amounts in the first instance to an infringement on the s. 2(b) Charter right of access to those documents. The Supreme Court has stated emphatically that when it comes to access of the press to Adjudicative Records, “covertness is the exception and openness the rule.”[78] In fashioning a regime that prohibits the disclosure of “personal information” unless the press can establish its justification, FIPPA has it the wrong way around.

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[72] When it comes to fundamental Charter guarantees such as the openness principle, freedom of the press, and freedom of expression, “any encroachment upon the guarantees demand[s] justification by the state on a stringent basis.”[89] Having found that FIPPA violates s. 2(b) of the Charter in two respects – substantively by imposing a reverse onus on a request for Adjudicative Records, and procedurally by occasioning delay in accessing Adjudicative Records – it is necessary to turn to s. 1 of the Charter. It is here that the analysis of Charter rights takes on “a more contextual approach and indicate[s] the harms that might be caused to other rights and interests”.[90] These include, most notably, the privacy rights of litigants and the administration of justice in administrative tribunals.

[73] In considering whether FIPPA’s limits on freedom of expression are reasonable and justifiable in a free and democratic society, the analysis follows the Oakes test.[91] It will therefore consider whether the legislative objective is pressing and substantial, whether the means chosen by the legislature is rationally connected to the objective, whether the legislation minimally impairs the right of free expression, and whether it is proportional considering the deleterious and salutary effects on the right.

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[95] An across-the-board presumption such as that embodied in s. 21 of FIPPA, in which privacy and non-disclosure rather than openness and disclosure is the presumptive rule, cannot qualify as a minimum impairment of s. 2(b) of the Charter. The open court principle is the fundamental one and the personal information and privacy concerns are secondary to it.[119] That principle directs administrative tribunals to protect confidentiality only where a party seeking it establishes that it is necessary to protect important interests.[120] Although the decision-maker may be exercising a statutory discretion taking into account the context on a case by case basis, the onus must remain on the party seeking to keep the information from the public rather than the other way around.

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[106] In any case, the various timelines built into the FIPPA system appear designed to make the system operate fairly. One cannot act judicially in making an access determination without giving notice to affected parties and providing some amount of time for a response. The specific notice and other time periods provided for in FIPPA may or may not be ideal, but there is little evidence that the problems are with FIPPA’s terms on their face. Where the evidence in the record shows that there have been inordinate delays, the source of the problems may lie more with the particular administrators or decision makers who extend the FIPPA timelines than with the statutory system itself. Once the reverse onus on personal information is removed, those human delay factors will hopefully be reduced.

[107] The Charter requires public access to Adjudicative Records, which may be tempered on a case-by-case basis by other considerations – integrity of the administration of justice, safety and security of informants and other third parties, privacy for complainants and other litigants, etc. For an unconstitutional law, “the usual remedy lies under s. 52(1), which provides that the law is of no force or effect to the extent that it is inconsistent with the Charter…. Section 24(1), by contrast, is generally used as a remedy, not for unconstitutional laws, but for unconstitutional government acts”.[128]

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[143] There shall be a declaration that the application of ss. 21(1) to (3) and related sections of FIPPA pertaining to the presumption of non-disclosure of “personal information” to Adjudicative Records held by the remaining institutions named in the Notice of Application infringes s. 2(b) of the Charter and is not justified under s. 1. It is therefore of no force or effect.

[144] The declaration of invalidity of this aspect of FIPPA is suspended for 12 months from the date of this judgment.