T-867-90
Clayton C. Ruby (Applicant)
v.
The Royal Canadian Mounted Police and The Department of External Affairs (Respondents)
T-638-91
Clayton Charles Ruby (Applicant)
v.
The Solicitor General (Respondent)
Indexed as: Rubyv. Canada (Royal Canadian Mounted Police) (T.D.)
Trial Division, MacKay J."Ottawa, February 3 and November 25, 1997.
Privacy — Applicant denied access to personal information banks maintained by three federal government agencies — Privacy Commissioner finding complaints not well-founded in first case, but certain information held in other case should be released — Solicitor General refusing to release requested information — Review applications made under Privacy Act, s. 41 — Class exemptions, injury exemptions distinguished " RCMP authorized to refuse to disclose personal information requested on basis of Act, s. 22(1)(a)(ii) — Department of External Affairs, CSIS properly exercised discretion under Act, s. 16(2) in refusing to indicate whether personal information existed in information banks 040 and 010 — Alternate grounds not appropriate for refusal to disclose requested information — CSIS authorized, had reasonable grounds under Act, ss. 21, 22(1)(b) to refuse to disclose personal information not released from information bank 015.
Practice — Costs — Applicant seeking costs under Privacy Act, s. 52(2) — Success divided as some information released after application filed — Constitutional challenge to Act, s. 51 raising important new issue — Whether consistent practice of refusing to indicate existence of personal information in bank consistent with discretion under s. 16(2) also important — Applicant entitled to costs as applications for review raised important new issues.
These were two applications for judicial review, under section 41 of the Privacy Act, of decisions refusing to give access to personal information banks maintained by three federal government agencies. The first application (T-867-90) concerns denials of two requests for access to personal information made in June 1988. The first request was for access to personal information bank (bank 005) concerning operational case records maintained by the Royal Canadian Mounted Police (RCMP). The second request was for access to personal information bank (bank 040) maintained by the Department of External Affairs (DEA). After being denied access to those banks, the applicant filed complaints with the Privacy Commissioner who rejected them. The second application for review (T-638-91) concerns a request, refused by the Solicitor General, for access to information in personal information bank (bank 010) maintained by the Canadian Security Intelligence Service (CSIS). Although it refused to confirm or deny the existence of the information requested, CSIS did ultimately provide some information, but not all that the Privacy Commissioner considered should be released, from a second information bank (bank 015). Claims for exemption from disclosure by CSIS in response to the applicant's request were based in part on sections 19 and 21 of the Act. Section 51 of the same Act, which has been upheld on constitutional grounds by Madam Justice Simpson in preliminary proceedings herein, mandates that a hearing in relation to exemptions be in camera and, on the request of the head of the government institution concerned, that an opportunity be provided for the latter to make representations ex parte. The following issues were raised: (1) was the RCMP authorized to refuse disclosure of the personal information requested on the basis of subparagraph 22(1)(a)(ii) and section 27 of the Act? (2) whether DEA and CSIS properly exercised discretion under subsection 16(2) in refusing to indicate whether personal information existed in information banks 040 and 010; (3) were specified alternate grounds appropriate for refusals by DEA and CSIS in relation to requests for access to banks 040 and 010? (4) was CSIS authorized, or did it have reasonable grounds under the Act to refuse to disclose personal information in bank 015 and related information? (5) the matter of costs.
Held, the applications should be dismissed.
Most of the statutory exemptions relied upon by the respondents are among so-called class exemptions included in the Act. Others are known as injury exemptions. It is mandatory that certain information not be disclosed as under subsection 19(1) or section 26 of the Act. However, most exemptions are discretionary, in other words, the head of the institution "may refuse to disclose" information. In those cases, the reviewing court may assess whether discretion was exercised in good faith for a reason rationally connected with the purposes of the Act. In the case of discretionary injury exemptions, the standard for the Court in review of a decision not to disclose information is a reasonable expectation of probable harm. It is not sufficient that the expectation of injury be merely speculative. The onus is on the government agent that refuses to disclose information to justify the refusal on the basis of a specified statutory exemption from access, and those exemptions are to be narrowly construed. The Court must be satisfied that the exemption identified supports the determination not to disclose the information.
(1) Initially, the RCMP refused the applicant's request for access to personal information in bank 005 in reliance on subparagraph 22(1)(a)(ii) or section 27 of the Act. Subsequently, 6 of 42 documents identified in relation to the request were released, with information excised, to the applicant. The only issue raised by the applicant about the 35 documents said to contain no personal information about him was that the Court should satisfy itself on examination of those documents that no "personal information" is included in them. The documents were examined and the Court found them not to contain such information. The only document left admittedly containing personal information about the applicant was withheld on the basis of class exemptions as information on persons involved in investigations under the Criminal Code , federal or provincial statutes. That information was properly classified within subparagraph 22(1)(a)(ii) and section 27 and the RCMP's decision not to disclose it was authorized under the Act.
(2) Acting under subparagraph 16(2) of the Act, DEA refused to indicate whether personal information existed in bank 040, and CSIS also refused to indicate whether personal information existed in bank 010. The Act does not preclude the head of the institution from deciding that information in certain banks other than those exempt under section 18 should not be acknowledged to exist. Subsection 16(2) is not limited in its application to exempt banks as provided for under section 18, to a specific item of information or to a specific request for information. The discretion vested under subsection 16(2) may be exercised on a case-by-case basis or in the general circumstances prevailing across the entire government service to which the Privacy Act applies, by the institution head determining that a certain bank should be protected by refusing to acknowledge to a requester the existence of personal information. DEA and CSIS did not fetter or improperly exercise their discretion under subsection 16(2) of the Act in refusing to indicate whether personal information existed in banks 040 and 010. In each case, the agency was authorized by the Act to act as it did.
(3) Since the refusal by DEA and CSIS to indicate whether personal information existed was authorized by the Act, the alternative grounds proposed have little significance for the result herein. There was no basis on which the Court could find, under section 48, in relation to certain alternate grounds specified, that the refusal was not authorized, or pursuant to section 49, in relation to section 21 or paragraph 22(1)(b) as specified alternate grounds, that there were not reasonable grounds for the refusal. The alternate grounds specified provided no basis for the Court to intervene in relation to the decisions of DEA and CSIS in regard to the applicant's requests for access to information in banks 040 and 010.
(4) Much of the information refused to be disclosed from bank 015, which concerns older investigation files, is personal information about others than the applicant, or contains no personal information about him. The public affidavit, filed by security officer MacEwan on behalf of CSIS and the Solicitor General, dealt with the reasonable expectation of injury to human and technical sources of information essential for security interests of Canada, to targets, to communications methods and security of information, including internal procedures. The affiant's uncertainty in specifying a particular injury to be reasonably expected did not seriously detract from his assessment, following his setting out of types of potential injury to sources, targets and operations, if the information withheld were disclosed. The last paragraph of his affidavit, referring to the "mosaic effect" mentioned in the previous paragraph, does not reflect uncertainty about MacEwan's expectation of probable harm if more information were released. The Court could not substitute its view for that of CSIS, or the Solicitor General, about the assessment of the reasonable expectation of probable injury. The only evidence before the Court, the MacEwan affidavit, supported that assessment. CSIS was authorized, and had reasonable grounds under section 21 and paragraph 22(1)(b ) of the Act, to refuse to disclose personal information not released.
(5) The applicant asked for costs on the basis of subsection 52(2) of the Act. Since much information was disclosed after the filing of these applications for review, it follows that "success" was divided between the parties. At the time these applications were filed, the applicant had been improperly denied information which was subsequently disclosed by the RCMP and CSIS. In two respects, an important new principle has been raised as required by subsection 52(2). First, the constitutional challenge of section 51 of the Act raised an important new issue for the Court considering the significance of the Charter issue for these applications as a whole, and for other applications which may engage the procedures developed to deal with refusals to disclose under section 51. Second, the issue of whether a consistent practice of refusing to indicate whether personal information exists in a bank not designated as an exempt bank under section 18 of the Act is in accordance with discretion required by subsection 16(2) is an important question. The applicant is entitled to costs since important new principles have been raised in these applications for review.
statutes and regulations judicially considered
Access to Information Act, R.S.C., 1985, c. A-1.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b).
Official Secrets Act, R.S.C., 1985, c. O-5.
Privacy Act, R.S.C., 1985, c. P-21, ss. 2, 3 (as am. by S.C. 1992, c. 21, s. 34), 8 (as am. by R.S.C., 1985 (2nd Supp.), c. 20, s. 13; (3rd Supp.), c. 1, s. 12; S.C. 1994, c. 35, s. 39), 10 (as am. by R.S.C., 1985 (3rd Supp.), c. 1, s. 12), 11, 12, 16, 18, 19, 21, 22(1)(a)(ii),(iii),(b), 26, 27, 41, 46, 47, 48, 49, 51, 52.
cases judicially considered
applied:
Canada Packers Inc. v. Canada (Minister of Agriculture), [1989] 1 F.C. 47; (1988), 53 D.L.R. (4th) 246; 32 Admin. L.R. 178; 26 C.P.R. (3d) 407; 87 N.R. 81 (C.A.); Vienneau v. Canada (Solicitor General), [1988] 3 F.C. 336; (1988), 24 C.P.R. (3d) 104 (T.D.); Zanganeh v. Canada (Canadian Security Intelligence Service), [1989] 1 F.C. 244; (1988), 50 D.L.R. (4th) 747; 20 F.T.R. 100 (T.D.).
considered:
Ruby v. Canada (Solicitor General), [1996] 3 F.C. 134; (1996), 136 D.L.R. (4th) 74; 113 F.T.R. 13 (T.D.); Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341; (1989), 61 D.L.R. (4th) 342; 36 Admin. L.R. 251; 47 C.C.C. (3d) 104; 24 C.P.R. (3d) 129; 98 N.R. 126 (C.A.).
referred to:
Ruby v. Canada (Solicitor General) (1994), 22 C.R.R. (2d) 81; 80 F.T.R. 81 (F.C.T.D.); Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75; (1991), 86 D.L.R. (4th) 281; 39 C.P.R. (3d) 371; 49 F.T.R. 161 (T.D.); Kelly v. Canada (Solicitor General) (1992), 6 Admin. L.R. (2d) 54; 53 F.T.R. 147 (F.C.T.D.); affd (1993), 13 Admin. L.R. (2d) 304; 154 N.R. 319 (F.C.A.); Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268; (1995), 102 F.T.R. 30 (T.D.).
APPLICATIONS for judicial review, under section 41 of the Privacy Act, of decisions refusing to give access to personal information banks maintained by three federal government agencies. Applications dismissed.
counsel:
Jill Copeland for applicant.
Barbara A. McIsaac, Q.C., for respondents.
solicitors:
Ruby & Edwardh, Toronto, for applicant.
McCarthy Tétrault, Ottawa, for respondents.
The following are the reasons for orders rendered in English by
MacKay J.: These reasons concern the disposition of two applications, heard together, made under section 41 of the Privacy Act, R.S.C., 1985, c. P-21 as amended (the Act), by the applicant Clayton C. Ruby, who had been refused access to personal information banks maintained by three agencies of the Government of Canada. After he was refused, the applicant filed complaints with the Privacy Commissioner, concerning the refusals. The Commissioner advised, after investigation, that in one case concerning two complaints (T-867-90) the complaints were not well -founded. In the other case, (T-638-91) the Commissioner advised the Solicitor General that the applicant's complaint was in part well founded and that certain information previously held should be released, but the Minister declined to accept that finding and refused to release certain information requested by the applicant and which the Commissioner considered should be released. Thereafter, the refusals were the object of these applications for review, made to the Court in accord with section 41 of the Act.
The first application, in Court file T-867-90, concerns refusals to two requests for access to personal information, both requests being made in June 1988. The first request was for access to personal information bank CMP/P-PU-005 (bank 005), a bank concerning operational case records maintained by the Royal Canadian Mounted Police (RCMP). That information bank, like the others relevant in these proceedings, was established in accord with section 10 [as am. by R.S.C., 1985 (3rd Supp.), c. 1, s. 12] of the Act and it was listed and described, in accord with section 11, in the Personal Information Index for 1988, published by the government. The second request of concern in T-867-90 was for access to personal information bank DEA/P-PU-040 (bank 040), a bank concerning information requested by or disclosed to federal investigative agencies, maintained by the Department of External Affairs (DEA), as the Department of Foreign Affairs and International Trade was then known.
The second application for review, in Court file T-638-91, concerns a request which was ultimately refused by the Solicitor General for access to information in personal information bank SIS/P-PU-010 (bank 010), a bank originally maintained by the RCMP which, at the time of the applicant's request, was maintained by the Canadian Security Intelligence Service (CSIS). In fact, in response to the request by Mr. Ruby, CSIS refused to confirm or to deny the existence of the information requested, but it did ultimately provide some information, but not all that the Commissioner considered should be released, from a second information bank, SIS/P-PU-015 (bank 015), containing older information generally of a similar nature to that in bank 010. Bank 015 was not originally specified by the applicant.
I propose to outline the facts in relation to each of the requests for information, to set out the issues arising in relation to these applications for review of the refusals to provide the information requested, and then to deal with those issues.
The request refused by the RCMP (T-867-90)
On March 22, 1988, the applicant made application to the RCMP for access to "all information about myself in Toronto and Ottawa" in personal information bank 005. By letter dated July 21, 1988 he was refused access to the information in question. The records in that data bank located in Toronto were said to be exempt from disclosure under subparagraph 22(1)(a )(ii) and section 27 of the Act, and no records were located in Ottawa. Both of those provisions grant discretion to refuse to disclose personal information where, respectively, it has been obtained by an investigative body, here the RCMP, in the course of a lawful investigation pertaining to enforcement of a law of Canada or a province, or it is subject to solicitor-client privilege.
By letter of October 18, 1988 a formal complaint was made to the Privacy Commissioner about the refusal by the RCMP. Written submissions were made on November 5, 1989, on behalf of Mr. Ruby in relation to this and other complaints filed, and this and the complaint about DEA were dealt with by letter from the Commissioner on January 31, 1990. In relation to the complaint concerning refusal of access to information maintained by the RCMP the Commissioner advised that, having examined the information in question, it all was information described in section 27 or paragraph 22(1)(a) of the Act, and its claimed exemption from disclosure was in accord with the Act. Thus, the applicant's complaint that access was improperly denied was not well founded.
After this application in Court file T-867-90 was filed, in the course of pre-hearing preparations, in 1992 the RCMP acknowledged that as a result of a change in policy since Mr. Ruby's original request, certain information, originally identified in relation to his request, might be released to him. A review of the information earlier identified was undertaken, and of 42 documents with a total of 83 pages, six documents composed of 11 pages were released to the applicant, with some information severed or excised from the pages released. An index of all documents earlier identified in response to the applicant's request was produced in preparation for hearing in this proceeding. It describes and identifies all 42 documents originally identified, including those released to the applicant, 35 other documents which are said to contain no personal information about the applicant, and one other document, composed of four pages, said to contain personal information about Mr. Ruby which the RCMP refused to release, maintaining its claim to exemption for that document under subparagraph 22(1)(a)(ii) and section 27.
There was an agreed statement of facts concerning documents released and those not released as a result of the RCMP reconsideration in light of its revised policy. By affidavit of David Joseph McCormick on behalf of the RCMP, all of the documents identified in response to Mr. Ruby's original request are said to have been maintained in an investigative file opened as a result of a request to the RCMP from the Department of Employment and Immigration that there be an investigation of a possible breach of the Official Secrets Act, R.S.C., 1985, c. O-5. The investigation was undertaken; no charges were laid. Further, Mr. McCormick avers that all of the documents in question and the information contained in them was obtained or prepared by the RCMP in the course of a lawful investigation concerning enforcement of a law of Canada. The 35 documents which contain no personal information about the applicant were identified as possibly relevant to the original request because they were contained in the same investigation file as the documents which did contain personal information about him. All of the documents that do not contain personal information about the applicant are claimed as exempt from release under subparagraph 22(1)(a)(ii), and some of them are also claimed under section 27. Counsel for the Deputy Attorney General representing the RCMP, submitted at the hearing of this matter that documents containing no personal information about the applicant are not accessible under the Privacy Act in any event.
In the circumstances, the respondent urged that the application in relation to refusal of the RCMP (within file T-867-90) is concerned only with one document of four pages, acknowledged to contain personal information about the applicant, which had not been released, claimed as exempt under the same two sections of the Act as had been applied in the case of other documents. The one document said to be still in issue is described in the index of documents, produced on behalf of the RCMP, as follows:
(Document 27, pages 61-64)"Letter, dated Mar. 29, 1978 from Department of Justice to Officer in Charge, Criminal Operations, "O" Division regarding advice re-possible investigations.
In accord with past practice of the Court in dealing with applications under the Act, counsel for the RCMP proposed to file at the hearing a supplementary confidential affidavit, with exhibits including copies of all 42 documents originally identified and included in the index of documents filed, to be filed under an order of the Court to maintain confidentiality and to permit the Court to examine the documents and the RCMP claims for exemption from disclosure, on an ex parte basis.
The request refused by DEA (T-867-90)
As we have seen, Mr. Ruby also requested personal information "disclosed to federal investigative bodies" held in personal information bank 040, maintained by the then Department of External Affairs. His request in June 1988 was responded to by letter of July 8, 1988 advising him that pursuant to section 16 of the Act, DEA would neither confirm nor deny the existence of the information requested, but if it did exist, the information would reasonably be considered exempt from disclosure under paragraphs 22(1)(a ) and (b) of the Act.
The applicant's complaint to the Privacy Commissioner led to an investigation by the Commissioner after which he wrote to Mr. Ruby that the DEA position was a reasonable application of the Act, in that either to confirm or deny the existence of information may either confirm or deny the existence of an investigation of which the applicant was otherwise unaware and may be injurious to the conduct of lawful investigations. For this reason, the applicant's complaint was said by the Commissioner not to be well founded.
Thereafter, the application (T-867-90) by Mr. Ruby to review the refusal to provide access to requested information included the refusal by DEA, as well as the refusal by the RCMP. By affidavit filed in the public record, an explanation of the exemption claimed by DEA is offered, an explanation to which I return later in these reasons.
In the case of the DEA refusal, counsel for the Deputy Attorney General on behalf of DEA offers to the Court a supplementary secret affidavit to be filed subject to a confidentiality order of the Court, advising whether or not personal information concerning the applicant exists in the information bank in question and if so, why that information is exempt under paragraphs 22(1)(a) and (b) of the Act. Upon order of the Court, that affidavit would be available for examination by the Court on an ex parte basis and in camera.
The request refused by CSIS (T-638-91)
By letter of March 22, 1988 the applicant requested access to information maintained in personal information bank 010, a bank maintained by the Canadian Security Intelligence Service (CSIS). The information contained in that bank is described as pertaining to sensitive and current operations involving individuals whose activities may, on reasonable grounds, be suspected of directly relating to espionage or sabotage that is against or is detrimental to the interests of Canada. Although the request only related to one information bank, CSIS also processed it in respect of personal information bank 015, a bank containing information similar to that in bank 010, but which is older and considered less current and sensitive.
CSIS responded to the applicant's request by letter dated August 12, 1988. It advised that it did not confirm or deny whether information requested existed in bank 010, but that if it did exist it would be exempt from disclosure pursuant to sections 19, 21, 22 and 26 of the Act. The applicant was also advised that having also reviewed information bank 015, CSIS was prepared to forward to him, and it did so, 41 pages containing personal information about him, with excisions for exemptions claimed pursuant to sections 21 and 26 of the Act. Four of the 41 pages, released as blank sheets, were claimed as exempt in their entirety under section 21 of the Act. In addition, the CSIS response also referred to 71 additional pages containing personal information of the applicant, not from the information banks but found within CSIS general records, "Classes of Personal Information", as described in the Privacy Act Index for 1987. This information was also provided to the applicant, with some excisions from the pages released, claimed as exempt pursuant to section 21 of the Act.
The applicant filed a complaint with the Privacy Commissioner in regard to the response of CSIS. As a result of the Commissioner's investigation, CSIS advised Mr. Ruby by letter of October 26, 1990 that there were two additional documents containing personal information about him as described in information bank 015 and that the information contained in them was exempt from disclosure pursuant to sections 19, 21, subparagraph 22(1)(a)(iii), paragraph 22(1)(b) and section 26 of the Act. Subsequent advice from CSIS to the applicant indicated there had been error in referring to subparagraph 22(1)(a)(iii). By affidavit in this proceeding, the CSIS affiant indicates that reliance for any exemption in regard to these two documents is now placed only on sections 19, 21, paragraph 22(1)(b) and section 26. After the application T-638-91 was filed, CSIS released copies of these two documents to the applicant, with excisions made for information claimed as exempt under the Act.
As a result of continuing investigation by the Commissioner, additional personal information, four pages, as described in bank 015 was released to him on February 28, 1991, with excisions of information claimed as exempt under sections 21 and 26 of the Act. There was a further release of documents to the applicant by CSIS, long after the Acting Privacy Commissioner had written to him to report on his investigation and after Mr. Ruby had commenced the application for review in Court file T-638-91. That release, by letter of July 21, 1992, was said to arise from the review by CSIS of its earlier decisions, and it was noted if the request were one made in 1992 additional information contained in bank 015 would be released, and so it was disclosed. Some 211 pages, with excisions said to be based on claims to exemption pursuant to one or more of sections 19, 21, paragraphs 22(1)(a), 22(1)(b) and section 26 of the Act, were released to the applicant. The balance of documents containing information, described in bank 015, relating to the applicant are said by the affiant of CSIS to be withheld from disclosure as exempt by virtue of one or more of those same sections of the Act.
Earlier than the final release of information by CSIS, the Acting Privacy Commissioner wrote to the applicant by letter of February 1, 1991 to report on the results of investigation of the applicant's complaint concerning the refusal by CSIS. The Commissioner concluded that the refusal of CSIS to confirm or deny existence of personal information within bank 010 was within the requirements of subsection 16(2) of the Act. Thus the applicant's complaint about the refusal of CSIS on this matter was not well founded.
As for Mr. Ruby's complaint in relation to the response of CSIS pertaining to information in bank 015, the Commissioner reported the investigation had led to CSIS agreement to disclose additional information, claiming some exemptions, as we have seen in earlier reference to four pages released on February 28, and that it had identified two other documents which CSIS proposed to withhold from disclosure. The Acting Privacy Commissioner, reporting on February 1, 1991, indicated that CSIS decisions in relation to information in bank 015, except for information agreed to be disclosed at that stage, and the two documents referred to in the CSIS letter of October 26, 1990, and still withheld from disclosure at February 1, 1991, were properly exemptible under the Act. As for the two documents, the Commissioner had asked the Solicitor General to disclose them but that request was refused. These two documents were subsequently released, after this proceeding was initiated, with excisions for exemptions claimed.
Claims for exemption from disclosure by CSIS in response to the request by the applicant were based in part on sections 19 and 21, as well as on other statutory exemptions. An application for review under section 41, which concerns a refusal based on one or both of those provisions is required, under section 51 of the Act to be heard in camera and, on the request of the head of the government institution concerned, with ex parte submissions by the requester. At this stage, I note that in preliminary proceedings heard by my colleague Madam Justice Simpson, the constitutional validity of section 51 was raised and dealt with.1 Simpson J. determined that paragraph 51(2)(a) and subsection 51(3), providing for hearings in camera and for ex parte submissions, restrict rights protected in paragraph 2(b) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], but those sections of the Act are saved by section 1 of the Charter.
By supplementary secret affidavit of an officer of CSIS, to be filed on order by the Court for treating the affidavit in strict confidence, the respondent proposed to inform the Court whether personal information of the applicant exists within bank 010, and if it exists, the documents are provided with explanation of claimed exemptions under the Act, for examination by the Court. Similarly, personal information of Mr. Ruby contained in bank 015 and documents in the group of records described as "Classes of Personal Information", are exhibited with the supplementary secret affidavit, whether or not the documents have been disclosed, with references to the statutory bases on which a claim for exemption from disclosure is based in regard to any information withheld from disclosure.
The applicant's objections to evidence filed ex parte
The applicant raises objections to the motions of the respondents, in relation to both proceedings, that the Court order filing of confidential or secret supplementary affidavits, with information requested but not released, and with explanation of claims to exemption from disclosure. The objection concerns the consideration of evidence on an ex parte basis by the Court, particularly in the absence of information to the applicant on which argument could be advanced in any of these cases, except in the most general terms on the basis of principle, without opportunity to question the exercise of discretion in any case, or to question the assessment of injury in any case of injury exemption claimed.
That objection is raised in regard to proceedings in T-638-91, though the applicant acknowledges, in this case, Madam Justice Simpson's earlier decision upholding the validity of section 51 of the Act. As we have noted, in so far as the claim to exemption in this file is based on paragraph 19(1)(a) or (b) or section 21; the Act, by section 51, mandates that a hearing, if there be one in relation to exemptions, be in camera, and on the request of the head of the government institution concerned that an opportunity be provided for the head to make representations ex parte. That provision having been upheld on constitutional grounds by Simpson J., the objection of the applicant can only be for the record and not with anticipation the Court would ignore Parliament's clear direction by refusing an affidavit tendered on a confidential or secret, ex parte basis, intended to clarify, for the presiding judge only, the grounds of exemptions claimed in respect of all items of information withheld from disclosure.
The applicant also objects to the filing of evidence on an ex parte basis pursuant to section 46, which the respondents proposed to do at the hearing, in regard to claims for exemptions based on provisions other than paragraph 19(1)(a) or (b) or section 21, which claims arise in both files, in relation to refusals by the RCMP, DEA and by CSIS. The objection notes that it is within the discretion of the Court under section 46 to accept or reject such evidence, here the proffered supplementary confidential or secret affidavits which the respondents propose to file, and it is urged that discretion should not be exercised at least until further information is provided to the applicant about the information not disclosed to him. Without more information, it is emphasized that there is no factual base for argument by the applicant in regard to any of the information withheld from disclosure, and he is left only with opportunity to argue in principle, in general terms, in relation to the exemptions here claimed under the Act. This is so, it is urged, even in regard to the document not disclosed by the RCMP, which is described in a summary way in the index of documents filed in the record in T-867-90, in a manner said not to be helpful for argument by the applicant.
While I have considerable sympathy for the difficulty the applicant encounters in the circumstances, at the conclusion of the hearing I granted the orders as requested by the respondents permitting the filing at that time, by the respondents, of a supplementary confidential affidavit, pursuant to subsection 46(1) of the Act in relation to the refusal by the RCMP, and of a supplementary secret affidavit pursuant to subsection 46(1) and section 51 in relation to refusals by DEA and CSIS. Those affidavits, with copies of documents which are the subject-matters of these reviews, were thus ordered to be filed, in a sealed form, ex parte, to be kept separate and apart from the public court files and made available only to the presiding judge unless otherwise ordered. The documents so filed, as earlier noted, include explanations of statutory exemptions claimed for any item of information not disclosed. The orders as granted also provided opportunity for the respondent authority in each case to make representations ex parte but, aside from the written explanations provided under the supplementary affidavits that were filed on an ex parte basis, no other representations were invited from or offered by the respondents in these proceedings.
The orders were granted essentially for two reasons. First, in the case of exemptions claimed under paragraphs 19(1)(a) and (b) or section 21, it is mandatory under subsection 51(3) that, if requested, the Court shall provide opportunity to make representations ex parte. While under section 46 there is discretion to receive representations ex parte, that section also requires the Court to take every reasonable precaution to avoid disclosure of any information the head of a government institution is authorized to refuse to disclose or of any information as to whether personal information exists, where the head of the institution does not indicate whether it exists. In either case, under section 51 or 46, if the judicial process in the Court's review initiated under section 41 of the Act is to avoid disclosure of information which the head of the government institution concerned has decided should not be disclosed, at least pending any direction otherwise by the Court, in my opinion, reception of evidence on an ex parte basis subject to its not being a part of the public record until otherwise ordered, is an essential process if the Court is to examine and satisfy itself of the basis for any refusal to disclose information. That necessity, it seems to me, underlies what is now an accepted process in this Court2 for dealing with applications under the Privacy Act and under the Access to Information Act [R.S.C., 1985, c. A-1], which provides for similar proceedings.
The exemptions claimed and the issues raised
Most of the statutory exemptions relied upon by the respondents are among so-called class exemptions included in the Act. Others are known as injury exemptions. In a review initiated under section 41, the Court may assess whether the information has been appropriately classified within the statutory terms for the exemption claimed. In so doing the Court will give appropriate deference to the classification assigned by the decision maker vested with authority under the Act, that is, the head of the government institution or the head's delegate.
Class exemptions here claimed by the respondents include section 19 (information obtained in confidence from another government); paragraph 22(1)(a) (information, less than 20 years old, obtained or prepared by a government investigative body in the course of lawful investigations pertaining to crime, to enforcement of any law in Canada or a province, or pertaining to activities suspected of threatening the security of Canada); section 26 (information about another individual); section 27 (information subject to solicitor-client privilege). Injury exemptions here claimed include section 21 (information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any allied or associated state), and paragraph 22(1)(b) (information the disclosure of which could reasonably be expected to be injurious to enforcement of any law of Canada or of a province, or to the conduct of lawful investigations).
It is mandatory that certain information not be disclosed, as under subsection 19(1) where the head of the institution "shall refuse to disclose" information obtained in confidence from another government, unless that government agrees, or under section 26 for information about another individual unless that is authorized under section 8 [as am. by R.S.C., 1985 (2nd Supp.), c. 20, s. 13; (3rd Supp.), c. 1, s. 12; S.C. 1994, c. 35, s. 39]. Most exemptions are discretionary, i.e., the head of the institution "may refuse to disclose" information. In those cases the reviewing court may assess whether the exercise of discretion has been in accord with the Act and in conformity with recognized legal principles, that is, that discretion is exercised in good faith for a reason rationally connected with the purposes of the Act.3
In relation to discretionary decisions to refuse disclosure of information, counsel for the applicant urged that the Court, in reviewing information not disclosed, must be satisfied that the discretion was properly exercised in each case, in reliance upon section 47 which provides that the burden of establishing that refusal to disclose information is authorized under the Act rests upon the head of the institution refusing to disclose it. As I understand it, the applicant submits the respondents must demonstrate that discretion was properly exercised in each instance when information is not disclosed. For the respondents, it is urged that, while ultimately the burden of justifying refusal to disclose lies upon the government's representative, unless there be some basis suggested for questioning the exercise of discretion in a particular instance, the Court should defer to the decision made by the administrator vested with authority.
I am satisfied that unless a ground for questioning the exercise of discretion is raised by the applicant, this Court, in examination of documents to review decisions to withhold information, relies upon the public officer, the head of the institution or his delegate, in meeting the public duty to exercise discretion properly. Of course, if the exercise of discretion appears on its face to be perverse the Court may find reason itself to question the exercise of discretion. Absent that or a ground raised by the applicant, the Court assumes the exercise of discretion is proper. To do otherwise, by placing on the respondents an initial burden to demonstrate that proper exercise in every case, would result in an unmanageable process and would be inappropriate in this, as in any other, form of judicial review.
In the case of discretionary injury exemptions, counsel for the parties agree on the standard for the Court in review of a decision not to disclose information, that is, that there be a reasonable expectation of probable harm, the standard set by Mr. Justice MacGuigan for the Court of Appeal in Canada Packers Inc. v. Canada (Minister of Agriculture).4 While that case was concerned with the Access to Information Act, the standard there enunciated in light of the purpose of that Act, which is analogous to the purpose of the Privacy Act, is here accepted by counsel, and in my opinion that is appropriate. It is not sufficient that the expectation of injury be merely speculative.
These are among the considerations the Court must bear in mind in review of the individual documents and the respondents' explanations for exemptions from disclosure. Other considerations are set out following a summary of the issues raised by these applications.
These issues are as follows:
(1) Was the RCMP authorized to refuse to disclose the personal information requested on the basis of subparagraph 22(1)(a)(ii) and section 27?
(2) Whether DEA in file T-867-90 and CSIS in file T-638-91 properly exercised discretion in refusing to indicate whether personal information existed in information banks 040 and 010 respectively, in reliance upon subsection 16(2).
(3) Were specified alternate grounds appropriate for refusals of DEA and CSIS in relation to requests for access to banks 040 and 010?
(4) Was CSIS authorized, or did it have reasonable grounds, under the Act to refuse to disclose personal information in bank 015 and related information?
(5) The matter of costs.
The Court's process and principles here applied
The process followed by the Court in considering this application followed that established in earlier cases under the Act and under the Access to Information Act. The Court heard submissions of counsel for the parties, with affidavits filed on the public record including explanations not only of the factual background of each request and refusal but also general reference to the exemptions relied upon, and why, for each exemption. With the affidavit filed in the public record are copies of all documents earlier provided to the applicant, with excisions of information to match the documents released to Mr. Ruby.
As noted, upon the respondents' motions in the two proceedings, the Court ordered the filing of supplementary confidential or secret affidavits with which the respondents' affiants provided for the Court copies of all documents identified in response to the applicant's requests, whether released or withheld from release, and with identification of information not disclosed and the reason(s) for that in each case, with reference to particular statutory exemptions upon which the refusal to disclose was based. The supplementary confidential or secret affidavits were considered on an ex parte basis, by the Court reviewing document by document the exemptions relied upon by the respondents, while keeping in mind the general principles now settled by jurisprudence and the submissions of counsel for the parties at the public hearing of these matters. Counsel for the respondents indicated at the hearing readiness to make representations or explanations in relation to the affidavits and documents filed ex parte and under seal, but this proved unnecessary because of the explanation for refusal to disclose information, provided document by document. In the result counsel appeared only at the public hearing when both parties were represented.
I propose to deal with particular representations about specific exemptions relied upon in the discussion which follows, resolution of the issues raised. Here, I simply record general principles raised by counsel as important in considering decisions to refuse to disclose personal information when requested. We have already referred to general principles relating to the exercise of discretion and to the assessment of authority in relation to class exemptions and to injury exemptions.
In light of the purpose of the Act,5 and respecting the privacy of personal information about others, the emphasis is to be on disclosure to, or access for, an individual to personal information.6 The onus is on the government agent that refuses to disclose information to justify the refusal on the basis of a specified statutory exemption from access,7 and those exemptions are to be narrowly construed.
Counsel for the respondents submits that the Court's role in review under the Act differs, in accord with sections 48 and 49, depending upon the particular exemption relied upon by the respondents.8 Here the refusals based on section 21, and paragraph 22(1)(b) are to be considered under section 49 and in those cases the Court may intervene by order only where "it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information" requested. In the case of other exemptions, under section 48 the Court may intervene where it finds "the head of the institution is not authorized . . . to refuse to disclose the personal information". I accept that the standard established by Parliament under section 49,9 for intervention by the Court is more stringent than that under section 48.
One other general principle borne in mind in examination of documents not disclosed is the statutory requirement under subsection 16(1) that when access to information is refused the refuser must state the specific provision of the Act on which the refusal was based. As was determined in Vienneau v. Canada (Solicitor General),10 a case concerned with a similar statutory requirement under the Access to Information Act, that obligation does not require the refuser to particularize the specific provisions of the Act on which exemptions are based for each portion of a record which has been exempted from disclosure. Yet, in my view this Court must be satisfied that the exemption(s) identified support(s) the determination not to disclose the information.
Many of the matters raised in relation to particular exemptions relied upon, in considering the particular issues raised in these proceedings and discussed in the following portion of these reasons, are relevant to other exemptions but are not repeated in considering other exemptions or issues. Having noted this I turn to the issues raised in these proceedings, discussing the submissions made and determining each issue in turn.
Resolution of the issues
1. The refusal by the RCMP (subparagraph 22(1)(a)(ii) and section 27)
It will be recalled that initially the request of Mr. Ruby for access to personal information in bank 005 was refused in reliance on subparagraph 22(1)(a)(ii) or section 27,11 that is, the information was obtained or prepared by an investigative body in the course of investigations pertaining to crime, or enforcement of any law of Canada etc., or was information subject to solicitor-client privilege. Subsequently, 6 of 42 documents identified in relation to the request, were released, with information excised, to the applicant.
No issue is raised about the six documents containing personal information that were released after initially being withheld from release. Then the only issue raised by the applicant about the 35 documents said to contain no personal information about him, and so identified in the index to the various documents filed with the public affidavit in this matter, is that the Court should satisfy itself on examination of those documents that no "personal information" as defined in section 3 [as am. by S.C. 1992, c. 21, s. 34] of the Act is included in those documents. Having examined the documents I am satisfied the 35 documents identified do not contain any personal information, as defined in the Act, about the applicant.
That leaves one document, consisting of four pages which, it is acknowledged contains personal information about Mr. Ruby but which has been withheld on the grounds that it is exempt pursuant to paragraph 22(1)(a) and section 27. Both are class exemptions. Bank 005, to which the applicant's request related, is described in part in the published index for 1988 as containing:
. . . personal information on individuals who have been involved in investigations under the Criminal Code, federal and provincial statutes . . . . This bank contains investigational and occurrence reports, statements, exhibit reports, copies of court documents such as summonses, warrants etc., court briefs, and in some instances records relating to criminal histories . . . .
. . .
Purpose: Compiled in the administration or enforcement of the law and in the detection, prevention or suppression of crime generally . . . .
All of the documents identified by the RCMP in response to the applicant's request are said, in the public affidavit sworn and filed in these proceedings, to be:
. . . contained in an RCMP investigative file which was opened as a result of a request to the RCMP from the Department of Employment and Immigration that it investigate a possible breach of the Official Secrets Act, a law of Canada . . . .
17. Accordingly all of the documents in question and all of the information therein was [sic] obtained or prepared by the RCMP in the course of a lawful investigation pertaining to the enforcement of a law of Canada.
That general description of the documents was accepted, at least in a general way, by counsel on behalf of the applicant. It was suggested on his behalf that the fact, acknowledged by the affiant, that no charges were laid following the investigation was relevant to the issue of whether release of the information would prejudice any kind of investigation. Yet that matter is not relevant, in my opinion, since the exemption under paragraph 22(1)(a) is a class exemption, and any possible injury from release of the information is not a matter for concern of the Court in this review. The only other question raised on behalf of the applicant was whether any discretion was exercised at all by the RCMP in withholding the final document in question, as though having classed the document as subject to solicitor-client privilege,12 which my examination of it confirms, no decision was then made to withhold the document. But in fact there was such a decision made, and the document was not disclosed even though all other documents containing personal information about the claimant were released after initially being withheld, though they were also subject to the exemption originally claimed under paragraph 22(1)(a). The refusal to disclose the final document was obviously made on the basis of section 27, otherwise it seems safe to assume, it too would have been disclosed.
I am satisfied, having reviewed all the documents identified in response to the applicant's request, that the only one containing personal information about him which was not released, was information, within the discretion of the RCMP not to disclose, that was properly classified within subparagraph 22(1)(a)(ii) and section 27. The RCMP's decision not to disclose that information was authorized under the Act.
2. The refusals of DEA and CSIS to indicate whether information exists
Under the Act, subsection 16(2) directs that in response to a request for access to personal information, while the normal reply when access is refused is to indicate that the information does not exist or to state the provision of the Act on which refusal is based, the "head of a government institution may but is not required to indicate under subsection (1) whether personal information exists". Acting under that provision DEA refused to indicate whether personal information exists in bank 040, and similarly CSIS refused to indicate whether personal information exists in bank 010. In each case the reply did indicate that if the information existed it could be expected to be exempt from disclosure under specified provisions of the Act.
The applicant urges, on the basis of the sworn public affidavits filed in these proceedings, that the administrators responsible failed to exercise the discretion vested in them under the Act because, it would appear, they followed, in each case, a policy to refuse to indicate whether information existed whenever there was a request for access to personal information in the banks here in issue. In the case of DEA, the departmental affiant avers, in part, in his public affidavit:
6. Personal information contained in Personal Information Bank DEA/P-PU-040 contains copies of requests received from authorized federal investigative bodies for personal information pursuant to paragraph 8(2)(e) of the Privacy Act. Such bodies include, primarily, the Canadian Security Intelligence Service, and the Royal Canadian Mounted Police. Attached hereto and marked as Exhibit "E" to this my affidavit is a copy of the Privacy Regulations , Schedule II, setting out those bodies which are investigative bodies for the purposes of paragraph 8(2)(e) of the Privacy Act.
7. Such requests relate to investigations that were currently being conducted by the agencies in question and the information contained in this Personal Information Bank is retained for a period of two years after completion of any such request received by External Affairs.
8. It is my belief, based on my discussions with the coordinators at the Canadian Security Intelligence Service and the Royal Canadian Mounted Police, that disclosure of whether a record exists or not in Personal Information Bank DEA/P-PU-040 could jeopardize the conduct of sensitive ongoing investigations by alerting the Requester to the fact that he is the subject of an investigation. Therefore, like my predecessors, I have concluded that unless the Department of External Affairs consistently refuses to confirm whether or not information exists in Personal Information Bank DEA/P-PU-040, it would be a simple exercise through a series of Privacy Act requests to determine whether or not information exists by looking for a pattern to the responses.
9. More simplistically, if a group of individuals were to make the same request for access to Personal Information Bank DEA/P-PU-040, and if the Department was to respond to each requester differently according to whether personal information exists in the bank or not, then a comparison by the individuals of responses received from the Department would reveal to the group which individuals have a record in Bank DEA/P-PU-040. For example, if the Department's response to those individuals where no record exists was that no record about the individual exists in that bank and, to those individuals where a record does exist, was that the Department is not prepared to confirm or deny the existence of the information requested, a comparison of the different Department responses would reveal which individuals have a record in Bank DEA/P-PU-040.
10. Therefore, in order to avoid inadvertent disclosure of information as to whether or not personal information is contained in that bank, which would be detrimental to active and ongoing investigations of a sensitive nature, it is necessary for the Department of External Affairs to consistently refuse to confirm or deny whether such information exists in Personal Information Bank DEA/P-PU-040.
For CSIS the affiant avers, in part, in his public affidavit:
15. CSIS continues to take the position that it will not confirm whether personal information in respect of the Applicant, of the kind described by Bank SIS/P-PU-010, exists. The reasons for this are described in my affidavit in paragraphs 16 to 18 below.
16. As can be seen from its description, Bank SIS/P-PU-010 describes information which relates to CSIS's current and most sensitive investigations. Generally speaking, those investigations would be jeopardized if the individuals or organizations involved were able to confirm CSIS's interest in them.
17. CSIS must take the position, with respect to information described in Bank SIS/P-PU-010, that it will not confirm or deny the existence of information. The response must be the same whether or not information exists.
18. For this reason, all information of the type described in Bank SIS/P-PU-010 must be exempted and it is not reasonable to apply the principle of severance.
From cross-examination of these affiants the applicant demonstrates that in each case, DEA and CSIS, standing practice is to refuse to indicate whether information exists when requests are received for access to information in the two banks concerned here.
It is urged on behalf of the applicant that the Act, by providing for the designation of exempt banks under section 18, precludes the possible use of a standard practice of declining to indicate existence of personal information in banks other than those designated as exempt. I am not persuaded the Act should be construed in this way. Exempt banks designated by the Governor in Council are those that "contain files all of which consist predominantly of personal information described in section 21 or 22". Other banks, constituted under section 10 of the Act, may contain personal information of another sort, or may contain some files which contain information described in section 21 or 22 and other files. The Act does not, in my view, preclude the head of the institution from deciding information in certain banks other than those exempt under section 18 should not be acknowledged to exist.
Moreover, subsection 16(2) is not limited in its application to exempt banks as provided for under section 18. Also subsection 16(2) is not limited in its application to a specific item of information or to a specific request for information. In the respondents' view that provision may be applicable in the case of a particular class or bank of information, not merely on a case-by-case basis as the applicant submits, but based on the integrity of, and the criteria necessary to protect, particular information. In my opinion, the discretion vested under subsection 16(2) may be exercised either on a case-by-case basis or in the general circumstances prevailing across the entire government service to which the Privacy Act applies, by the head of a government institution determining that a certain bank under his or her responsibility for personal information which may be exempt from disclosure under the Act, should ordinarily be protected by refusing to acknowledge the existence of personal information in that bank when access is requested to information in that bank.
In the circumstances I am not persuaded that it was a fettering of discretion or an improper exercise of discretion under subsection 16(2) of the Act for DEA and CSIS to refuse to indicate whether personal information existed in banks 040 and 010. In each case the agency was authorized pursuant to subsection 16(2) to act as it did. I note that the result in relation to bank 010 is the same as that found in Zanganeh v. Canada (Canadian Security Intelligence Service),13 an earlier case which found a CSIS refusal to acknowledge whether information in bank 010 existed to be in conformity with the Act.
3. Were specified alternate grounds appropriate for refusals of DEA and CSIS in relation to requests for access to banks 040 and 010?
DEA and CSIS, both having refused to indicate whether information exists, in accord with subsection 16(1) of the Act indicated the provisions of the Act under which, if the information did exist, exemption from disclosure could reasonably be expected to be based. While it is suggested in written submissions that assessment of validity of the alternative grounds proposed is an appropriate issue in the course of this review, not much was made of this in argument at the hearing.
In my opinion, since I have found that in each case the refusal to indicate whether the personal information existed was authorized under the Act, the alternative grounds have little significance for the result of this review. Having examined the supplementary secret affidavits and information filed ex parte at the hearing, and having considered submissions of the applicant and the respondents, I am not persuaded that such information, if it existed, in the banks in question, as those banks are described in published indexes, would be inappropriately classed within the classes of exemption suggested as alternative explanations for refusal to disclose information.
Thus, there is no basis on which this Court could find, pursuant to section 48, in relation to certain alternate grounds specified, that the refusal was not authorized, or pursuant to section 49, in relation to section 21 or paragraph 22(1)(b) as specified alternate grounds, that there were not reasonable grounds for the refusal. The alternate grounds specified, in the circumstances here, provide no basis for this Court to intervene in relation to the decisions of DEA and CSIS in regard to requests of the applicant for access to information in banks 040 and 010 respectively.
4. Was CSIS authorized, or did it have reasonable grounds, under the Act to refuse to disclose personal information in bank 015, and related information?
As we noted, while disclosing personal information to the applicant from bank 015, and related information held in "classes of personal information", in a number of instalments, CSIS identified its refusal to release more information by reference to a number of statutory exemptions. These included sections 19, 21, paragraphs 22(1)(a ) and 22(1)(b), and section 26.14
Section 19 provides a mandatory exemption, directing refusal to disclose information obtained in confidence from another government, foreign or domestic, or from an international organization of states, unless that government or organization consents to disclosure or makes the information public. The applicant submits that proper exercise of the discretion to release such information on consent of the other government dictates that consent be sought, before the head of the institution can seriously rely on the statutory direction not to disclose the information. That submission, in my opinion, reverses the primary thrust of section 19, that is, that information in that classification not be disclosed. That is the emphasis Parliament established, no doubt to protect intergovernmental relations, unless one of the exceptions set out in subsection 19(2), consent or publication by the other government, is met.
I agree with counsel for the respondents that section 26 also sets a mandatory exemption, unless the information concerning another individual may be released in the circumstances provided by subsection 8(2) of the Act. For the applicant, it is submitted that a proper exercise of discretion to release information about another individual requires the head of the institution concerned to consider paragraph (m) of subsection 8(2)15 and to form an opinion whether the public interest in disclosure clearly outweighs any invasion of privacy that could result from disclosure. Again, in my opinion, this submission ignores the emphasis of section 8 as a whole, that is, not to disclose information about other persons to one who makes a request under the Act, unless there be an exceptional ground as set out by subsection 8(2). I am not persuaded that every reference to another individual must be considered in relation to paragraph (m) of that provision before the head of the institution refuses to disclose it.
It will be no surprise, as counsel for the respondents noted at the hearing, that much of the information here refused to be disclosed from bank 015, a bank concerning older investigation files, is personal information about others than the applicant, or contains no personal information about the applicant, or that some of the personal information about him is simply by reference to his professional involvement, as a lawyer of prominence, with or on behalf of others.
I have examined, on the basis of written explanations filed ex parte with the supplementary secret affidavit, the affidavit and the documents also filed ex parte. I have done so document by document, reviewing the exemptions claimed and the bases for those. In my opinion the information contained in the documents has been properly classified within the exemptions claimed by CSIS.
At the hearing counsel for the respondents noted that in view of the classification of information withheld from release in relation to bank 015 the principal task of the Court in review of the refusal was to assess the decisions to refuse to disclose information under section 49. All of the information withheld is classed in every case as exempt pursuant to section 21 and much of it is also classed as exempt under paragraph 22(1)(b). As we have earlier noted, those two exemptions dictate that the Court, before intervening, "determine that the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information". Those exemptions, discretionary injury exemptions, provide in section 21, for refusal where disclosure could reasonably be expected to be injurious to the conduct of international affairs, defence or national security affairs, or under paragraph 22(1)(b ), for refusal where disclosure could reasonably expected to be injurious to enforcement of any law of Canada or of a province, or the conduct of lawful investigations.
The public affidavit filed by Robert Ian MacEwan, filed on behalf of CSIS and the Solicitor General, deals with the reasonable expectation of injury to human and technical sources of information essential for security interests of Canada, to targets, i.e., individuals and organizations that are the subject of investigation, to communications methods and security of information, including internal procedures. A security officer of CSIS, with long experience, MacEwan emphasizes his opinion that disclosure of the information withheld from release by CSIS could reasonably be expected to be injurious to the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities within section 21 of the Act and that some of the information not disclosed is also information which, if disclosed, could reasonably be expected to be injurious to the enforcement of laws of Canada and the provinces and to the conduct of lawful investigations within the meaning of paragraph 22(1)(b) of the Act. Those opinions are further developed in the supplementary secret affidavit filed in this matter, but it is unnecessary to rely upon that.
The applicant urges that there are reasons why the public affidavit ought not to be accepted as meeting the requirement of establishing a reasonable expectation of probable injury.16 Among these is the apparent age of some or all of the information, assumed on the basis of the documents that were disclosed to the applicant referring to events more than 20 or 25 years ago. It is urged that unless those past events have current significance for current investigations, no probable injury can be assumed. Further, it is urged that the public affidavit filed is a standard form, "boiler plate", that is, a document similar to affidavits filed in other cases. In my view, that in itself hardly undermines the assessments included in the affidavit. Finally, it is urged that by his public affidavit and in cross-examination, MacEwan indicates uncertainty in articulating injury that might be expected to arise from the so-called mosaic effect of putting information together if it were released, and in indicating injury that might be expected if organizations and events of many years ago have no significance for today in current investigations.
In my opinion the affiant's uncertainty in specifying a particular injury to be reasonably expected does not seriously detract from his assessment, following his setting out of types of potential injury to sources, targets and operations, if the information withheld were disclosed. The concluding paragraphs of his public affidavit aver:
64. The passage of time and the age of information cannot be used to conclude that its release will not cause any damage. Sources may still be active. Inactive sources could have their safety jeopardized or be lost for the future. Targets would know much about the scope of information available on them.
65. Disclosure of information which reveals the methods by which information is collected, references are coded, information is cross-referenced or extracted, and raw information analyzed, would in my opinion, cause irreparable harm to the investigative process. That information, if disclosed in this case, and subsequently in similar situations, would ultimately provide a body of information which could seriously prejudice the effectiveness of CSIS.
66. One must also be sensitive to what may be termed the "mosaic effect", whereby one takes seemingly unrelated pieces of information, which may not be particularly sensitive individually, and compares them with each other to develop a more comprehensive picture.
67. It is frequently difficult to anticipate the injury when information released in one context is compared to information available in another context.
In my opinion the last of those paragraphs, referring to the "mosaic effect" mentioned in the previous paragraph, does not reflect uncertainty about MacEwan's expectation of probable harm if more information were released. That expectation, reasonably based on his experience, is sufficiently documented in the preceding portion of the affidavit concerning probable harm and in his answers on cross-examination. That, in the final analysis, is the only evidence, on the public record, before the Court. It is not contradicted, and it is strengthened by the secret affidavit filed ex parte . The Court cannot substitute its view for that of CSIS, or the Solicitor General, about the assessment of the reasonable expectation of probable injury.17 The only evidence before the Court, the MacEwan affidavit, supports that assessment.
In these circumstances there is no evidence before me which would lead me to determine that "the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information" here not released from information bank 015, and related information. Thus, in my opinion, CSIS was authorized and had reasonable grounds under section 21 and paragraph 22(1)(b ) to refuse to disclose personal information not released.
Disposition of the applications for review
For the reasons set out, by orders issued November 21, 1997, I dismissed the application in Court file T-867-90 in respect of the refusal by the RCMP to disclose personal information from bank 005, and in respect of the refusal by DEA to indicate whether personal information exists in bank 040. I also dismissed by order the application in respect of the refusals by CSIS, to indicate whether personal information exists in bank 010, and to disclose additional information from bank 015 and the related information in "classes of personal information" maintained at the time by CSIS.
The orders issued direct the return to counsel for the respondents of the supplementary confidential and secret affidavits and related materials filed ex parte in these proceedings, if there be no appeal in these matters, excepting an appeal of the order in relation to costs.
The matter of costs
The applicant seeks costs, including disbursements and counsel fees, in these proceedings in both applications, apart from the portion of the application in T-638-91 with respect to the constitutional Charter issues earlier determined by Madam Justice Simpson.
The Act provides for costs under section 52 as follows:
52. (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.
(2) Where the Court is of the opinion that an application for review under section 41 or 42 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result.
In her reasons of May 31, 1996 disposing of the constitutional Charter arguments, Madam Justice Simpson exercised her discretion under subsection 51(1) to make no order as to costs, noting that the applicant had persuaded her that section 51 of the Act, providing for in camera hearings and ex parte evidence, restricted rights secured by paragraph 2(b) of the Charter but in the final analysis was saved by section 1 of the Charter. She declined to consider an award under subsection 52(2), which in her view is applicable only at this stage, on completion of the review initiated under section 41.
The parties are agreed on one aspect of costs, that is that the respondents shall pay costs incurred by the applicant for travel to and from Ottawa and for accommodation in that city, except for costs incidental to a second cross-examination of Mr. MacEwan. The respondents agree to payment of those costs, pursuant to Treasury Board guidelines, in view of their requests, under paragraph 51(2)(b) of the Act that the proceedings be heard and determined in the National Capital Region.
The parties agree on little else about costs. For the respondents it is urged that if successful in the result they should be entitled to costs under subsection 52(1). It is my view that considering the manner in which developments occurred following the filing of the applicant's applications for review, "success" is divided between the parties. It was only after the applications were filed that the RCMP provided some personal information requested from bank 005, and the largest share of documents released by CSIS in relation to information in bank 015 and related information was disclosed to Mr. Ruby only in July 1992, more than two years after the application in T-638-91 was filed. In both cases it is said the information later released was disclosed because of changes in policy in relation to management of information under the Act, but in my view there can be no denying that the impetus for those disclosures was the initiation and continuation of these reviews. It is true that my decision dismisses both applications but that is in the context of certain information having been disclosed after the applications for review were filed. Thus, the effect of dismissing the applications is to support the decisions that additional information not be disclosed, and that implicitly accepts that at the time these applications were filed Mr. Ruby had been improperly denied information that the RCMP and CSIS each subsequently disclosed. In the circumstances, I am not prepared to order that the respondents, the Crown, are entitled to costs.
Has the applicant raised an important new principle in relation to the Act so that the Court is required to award costs to him pursuant to subsection 52(2), apart from his partial success? In two respects it is submitted that an important new principle has here been raised. First, it is urged that the raising of the Charter issues concerning section 51 led to an important new principle, that is, that the section is constitutionally valid, and that in turn assured as lawful the process earlier evolved by the Court for considering applications for review of refusals to disclose information, at least in those cases under section 51 where in camera proceedings and ex parte evidence may be requested by reason of the sensitive nature of the information withheld from disclosure. For the respondents it is suggested the Charter issue was collateral to the main application which was concerned with the reasonableness of grounds to deny disclosure, and the overall application here did not turn on any novel point. In my opinion, that does not recognize the importance of establishing the validity of section 51, or the significance of that for the Court's procedure in dealing with applications of the sort here. In accepting that the constitutional challenge raised an important new issue for the Court, I assess that, not with regard to the Charter portion of the case in file T-638-91. Rather, my assessment is based on a perspective of the significance of the Charter issue for these applications as a whole, and for other applications which may engage the procedures developed to deal with refusals to disclose which engage the application of section 51.
The second aspect in which the applicant submits an important new principle in relation to the Act is raised concerns the issue of whether it was an improper exercise of discretion pursuant to subsection 16(2) for the head of the government institution to consistently refuse to indicate whether personal information exists in a bank which is not designated as an exempt bank under section 18 of the Act. The respondents suggest no such point was at issue in these applications, but in my opinion that clearly was an issue in regard to the refusals by DEA and by CSIS with regard to banks 040 and 010 respectively. It is true that the Court has previously considered and found to be authorized by the Act, a refusal to indicate the existence of personal information in a bank,18 but the issue whether a consistent practice of refusing is consistent with discretion within subsection 16(2) of the Act, is, in my opinion, an important question. Its resolution, one way or the other, establishes an important principle for those exercising responsibility under the Act.
I am persuaded in the circumstances that in these applications for review important new principles have been raised in relation to the Act and the applicant is entitled to costs.
Since the applicant is a barrister and solicitor, costs recoverable shall be limited to disbursements and to fees incurred for counsel representing the applicant, in particular at the hearing and in any cross-examinations of affiants. Costs on a more liberal basis for solicitors acting in their own cause may have been accepted by some courts, but the decision of the Court of Appeal in Davidson v. Canada (Solicitor General),19 which determined that costs in the case of a lawyer acting for himself or herself should be treated as though he or she were a self-represented litigant, and thus, limited disbursements. In that case, the lawyer concerned represented himself before the Court. That was not the circumstance here where the applicant was represented before the Court by counsel, admittedly from the applicant's firm. In my opinion, the applicant should be entitled to recover fees paid or payable to counsel who represents him at a hearing or at examination of an affiant.
By separate order issued in relation to the two proceedings, T-867-90 and T-638-91, the Court ordered that the applicant is entitled to recover costs consisting of disbursements and any fees paid or payable for services of counsel representing the applicant. The order provides for one set of costs in relation to both applications, since they were heard together, except for disbursements which are allowed for each application.
1 See Ruby v. Canada (Solicitor General), [1996] 3 F.C. 134 (T.D.), and Simpson J.'s earlier judgment at (1994), 22 C.R.R. (2d) 81 (F.C.T.D.).
2 See, e.g., Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75 (T.D.), and see also Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (T.D.), at p. 277; re the Access to Information Act, R.S.C., 1985, c. A-1.
3 Kelly v. Canada (Solicitor General) (1992), 6 Admin. L.R. (2d) 54 (F.C.T.D.), at p. 58, per Strayer J. affd (1993), 13 Admin. L.R. (2d) 304 (F.C.A.). See also Canadian Jewish Congress, supra, note 2, at pp. 279-280, per Heald D.J. (F.C.T.D.) with reference to similar proceedings under the Access to Information Act, supra, note 2.
4 [1989] 1 F.C. 47 (C.A.), at pp. 59-60.
5 S. 2 of the Act provides:
2. The purpose of this Act is to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.
6 S. 12(1) of the Act provides:
12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of the Immigration Act has a right to and shall, on request, be given access to
(a) any personal information about the individual contained in a personal information bank; and
(b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.
7 Specifying the statutory basis for refusal to disclose is required under s. 16(1) and the onus of justifying refusal is set out by s. 47 of the Act.
8 Ss. 48 and 49 of the Act provide:
48. Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of a provision of this Act not referred to in section 49, the Court shall, if it determines that the head of the institution is not authorized under this Act to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.
49. Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of section 20 or 21 or paragraph 22(1)(b) or (c) or 24(a), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.
9 See Ternette v. Canada (Solicitor General), supra, note 2, at p. 106.
10 [1988] 3 F.C. 336 (T.D.).
11 Ss. 22(1)(a) and 27 provide as follows:
22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1)
(a) that was obtained or prepared by any government institution, or part of any government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to
(i) the detection, prevention or suppression of crime,
(ii) the enforcement of any law of Canada or a province, or
(iii) activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act,
if the information came into existence less than twenty years prior to the request;
. . .
27. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that is subject to solicitor-client privilege.
12 Access to information subject to solicitor-client privilege under the Access to Information Act is discussed by Heald D.J. in Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), supra, note 2, at pp. 291-298.
13 [1989] 1 F.C. 244 (T.D.).
14 Ss. 19, 21, 22(1)(b) and 22 are as follows: (s. 22(1)(a) is set out in note 11, supra.)
19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any personal information requested under subsection 12(1) that was obtained in confidence from
(a) the government of a foreign state or an institution thereof;
(b) an international organization of states or an institution thereof;
(c) the government of a province or an institution thereof; or
(d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government.
(2) The head of a government institution may disclose any personal information requested under subsection 12(1) that was obtained from any government, organization or institution described in subsection (1) if the government, organization or institution from which the information was obtained
(a) consents to the disclosure; or
(b) makes the information public.
. . .
21. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada, as defined in subsection 15(2) of the Access to Information Act, or the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities, as defined in subsection 15(2) of the Access to Information Act, including, without restricting the generality of the foregoing, any such information listed in paragraphs 15(1)(a) to (i) of the Access to Information Act. [Note: s. 15 of the Access to Information Act sets out examples of information relating to international affairs and defence, and in s. 15(2) defines "defence of Canada or any state allied or associated with Canada" and "subversive or hostile activities".]
22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1)
. . .
(b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information
(i) relating to the existence or nature of a particular investigation,
(ii) that would reveal the identity of a confidential source of information, or
(iii) that was obtained or prepared in the course of an investigation.
. . .
26. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) about an individual other than the individual who made the request, and shall refuse to disclose such information where the disclosure is prohibited under section 8.
15 8. . . .
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
. . .
(m) for any purpose where, in the opinion of the head of the institution,
(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
(ii) disclosure would clearly benefit the individual to whom the information relates.
16 See, Canada Packers v. Canada, supra, note 4.
17 See, Ternette, supra, note 2, at p. 106.
18 See, e.g. Zanganeh v. Canada, supra, note 13.
19 [1989] 2 F.C. 341 (C.A.).