Of losses, and wins in the courts

An expanded version of the column published in Media Magazine, Winter 2008

The courts in Ontario are busy taking away with one hand, and giving with the other.

The cause of computer-assisted reporting in the province has been dealt a blow by a decision from the Divisional Court that essentially says if an institution has to write a small computer program to extract data for a request, it can refuse to do so.

The Toronto Star requested access to two databases used by the city’s police service. To protect privacy and yet still be able to make sense of the data, the Star asked the ministry to replace unique identifiers for individuals with randomly generated numbers. That would allow the paper to see what happened to individuals, without knowing who they were.

The Toronto Police Board refused to release the databases, saying doing so would constitute creating a new record, something it maintained it did not need to do.

Ontario’s Information Commissioner disagreed so the board took the case to judicial review before the Divisional Court, and won. The cause of access lost.

The decision centres around the definition of a record in the act.

Using language similar to that found in several other access statutes across Canada, Ontario’s provincial and municipal acts allow for the “production of a record from a machine readable record,” if this can be done using hardware, software or expertise “normally used by the institution.”

The practice laid down over many years of requests in Ontario is that this includes writing a small routine to extract or sever fields from records. Usually that means writing a query, but sometimes a simple computer program is required to run a more complicated extraction.

For actual programming, there is even a provision in the fee regulations that allows institutions to charge $60 an hour for the task.
The Divisional Court decision has the potential to turn that whole body of accepted practice—backed by orders from the information commissioner–on its head.

As the court put it, if something not normally used by the institution is required, “that is the end of the matter.”

This has disturbing implications for access to electronic records. The decision invites institutions to throw up this barrier whenever they would rather not release a database.

The decision completely misses the distinction between software and the small routines that are sometimes required to extract data.

As I see it, the requirement that hardware, software and technical expertise be normally used by an institution has a reasonable purpose. The statute is saying an institution shouldn’t have to go out and buy new computers or computer programs, or hire expensive outside technical assistance, to respond to a request for data (or paper printouts, which would be equally affected by this ruling).

In my view, it is unreasonable to suggest this means an institution doesn’t have to use the software it already possesses to write a simple routine to extract data, or that it doesn’t have to use the technical expertise it already has to do so. Yet this is exactly what the court seems to be saying, that an electronic record ceases to be a record simply because a small amount of programming or query writing is needed to copy it or sever portions of it.

The Star is taking the case to the Court of Appeal, and as of this writing there has been no decision.

Another judgement from the Divisional Court, again involving the Star, could make it nearly impossible to obtain any data from police.

The newspaper sought access to two firearms databases maintained by Ontario’s Provincial Weapons Enforcement Unit. Again, the matter ended up before the information and privacy commissioner, which ruled in favour of the Star on one database and against the paper on the other.

The Star and the Ministry of Community Safety and Correctional Services both applied for judicial review, and the end result was that the Divisional Court ruled both databases should be kept from the public.

Again, the reasoning rested on a narrow interpretation of words in the act.

One of the exemptions allows records to be withheld if release would interfere with a “law enforcement matter.”

The court ruled that “the plain and ordinary meaning of ‘matter’ is very broad” and concluded that since the database was used in policing it therefore fell within the ambit of a law enforcement matter.

And that was enough to block its release.

That would appear to make it possible to withhold almost any record that relates to policing.

In both of these cases, access to electronic records was denied not on the basis of broad principles, or clear threats to the public good, but on the basis of lawyers fighting over the meaning of poorly-defined phrases. That’s par for the course in the courts, but the reason we have information and privacy commissioners is because the drafters of these acts knew that there needed to be appeal bodies with the specialized expertise needed to make finely balanced decisions. The balance I am speaking of is that between the public’s right to know, and the need to protect specific public interests.

Ontario’s office has built up an impressive body of jurisprudence, generally striking the balance well.

The problem when the cases end up in the courts is that too often carefully crafted decisions are overturned on the basis of interpretations of language by judges who deal with such matters only occasionally. The law, as written, seems clear enough to them, so they rule accordingly.

The courts usually defer to administrative tribunals in their specific areas of responsibility, on the assumption they have the expertise to interpret their own statutes. In these two cases, the Divisional Court appears to be substituting its interpretation of the meaning of the statutes for that of the commissioner, to the detriment of the right of access.

An unrelated and remarkable judgement came own from the Ontario Court of Appeal last May. This one went in favour of access.

The decision, which reversed a decision by the Divisional Court, said that the public interest override in the provincial FOI act should be expanded.

As written, the act—and its municipal twin–allows for records that could otherwise be withheld to be released, if the public interest “outweighs the purpose of the exemption.”

In a case brought by the Criminal Lawyers Association and backed by the Canadian Newspaper Association, the majority on a three-judge panel ruled that the override should be extended to cover the law enforcement and solicitor client privilege exemptions, on the basis that not doing so violated the right to free expression contained in the Canadian Charter of Rights and Freedoms.

The case has its roots in the botched prosecution of two men accused in the 1983 murder of Toronto mobster Domenic Racco.

 Graham Court and Denis Monaghan were convicted of first degree murder, but a retrial was ordered on appeal. The judge in the retrial stayed the proceedings after allegations of official misconduct surfaced and made stinging comments about police and Crown actions, including “deliberate non-disclosure or suppression of virtually every piece of evidence that was of probable assistance to the defence.”

A perfunctory OPP investigation found no wrongdoing, but the lawyers association wasn’t satisfied. It filed an FOI request for provincial records related to the case. The government refused to release the records, and the information commissioner backed that decision on appeal because the act provided no public interest override for the solicitor-client privilege and law enforcement exemptions.

The Divisional Court upheld the commissioner’s order, but that was reversed by the appeals court. The higher court’s reasons are compelling enough to quote at length:

In this case, the objectives of the Act are not met because there is no independent oversight of the Minister’s decision not to disclose. This is because the Commissioner has no power to review the Minister’s decision. The exemption, therefore, is not exercised in a limited way since the Act does not provide for the possibility that the public interest might outweigh the purpose for the exemption. Thus, the general right to access to information is thwarted…..the government’s failure to let the Commissioner even determine whether it is in the public interest to disclose the records arguably puts the administration of justice into disrepute. The lack of an independent means of determining whether the records should be disclosed, in light of… extensive findings of specific acts of police and Crown misconduct, places us back to an era where government secrecy was the norm and disclosure was at the whim of the Minister…

How often do we see the courts land so solidly on the public’s side in an FOI case?

The Ontario government has sought leave to appeal to the Supreme Court of Canada, and given the importance of the issues involved, we may well see this case argued before the highest court in the land with implications for all of the access statutes across Canada.