April 24, 2014 4:30 pm

Unanimous Supreme Court decision ends six-year FOI ordeal

A statue representing Justice is seen in front of the Supreme Court building in Ottawa.

THE CANADIAN PRESS

Six years ago today, I was planning the launch of a Toronto Star blog called Map of the Week.

I filed a stack of access-to-information requests with various provincial and federal departments, as well as the City of Toronto, looking for postal code-based geodata. I asked a variety of government departments for everything I could think of – school vaccination rates, fishing licences, on and on.

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One request that went in the mail on April 24, 2008, was to Ontario’s Ministry of Community Safety and Correctional Services: I asked for the first three characters of the postal codes of people on the Ontario sex offender registry. (More background on the case is here.)

The first part of a postal code, or “forward sortation area,” is a useful tool for representing geographic information. FSAs are neighbourhood-sized areas which are small enough to split a city into small chunks, but big enough that no individual can be identified from the data.

I didn’t anticipate that the Ministry would refuse to release the information, and then go to exhaust all possible appeals, losing at the IPC adjudicator level, the Ontario Superior Court, the Ontario Court of Appeal, and now finally at the Supreme Court in a unanimous decision.

Counting the seven-judge panel at the Supreme Court and the two three-judge panels at the two Ontario appeal courts that heard the case, 13 judges have now ruled for the release of the information, and none against it.

What are the decision’s implications for access-to-information law in Canada? In my lay person’s reading, it seems to affect law enforcement exemptions. The court appears to have upheld the concept that if an institution wants to withhold information requested under an access-to-information request on the basis that releasing it would cause harm, it has to establish that harm is probable, through “detailed and convincing evidence.” This sets a fairly high, but not unachievable, standard to withhold information.

The case is a poster child of sorts for the merits of the Ontario access-to-information system. An information requester facing a government agency which feels strongly about withholding information can be  in a very weak position. Ontario’s Information and Privacy Commissioner backed their adjudicator’s decision to order the release of the data through years of drawn-out process and three court hearings. I didn’t have to be represented (though I could have chosen to be) or really do anything.

I’ve been a fan of the Ontario FOI system for years, but never more than today.

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Ann Cavoukian, Ontario’s Information and Privacy Commissioner, begins the interview with a question of her own:

“Have you received the record yet?”

“I hadn’t expected to have it this quickly,” I reply. (The decision was only released this morning, at 9:45.)

“Well, I expect you to have it this quickly. We’re going to contact them. My legal counsel is going to call their legal counsel, and say that we expect you to have it immediately. What are they waiting for? You’ve been waiting for it forever.”

Cavoukian calls the whole ordeal “unbelievable”.

“We issued an order that you should have the information, then they appealed it to the Superior Court. Then we won at the Ontario Court of Appeal. So why would they then waste taxpayer dollars to appeal it to the Supreme Court of Canada, knowing that the likelihood of success was very limited, given the previous two decisions, and the fact that we’ve been given deference by the lower courts? “

“There was no risk to personal privacy, so privacy was not an issue. There was no public safety issue here.”

For Lisa Austin, a privacy expert who teaches at the University of Toronto’s law school, the case hinged on the risk of “reidentification,” or identifying individuals from apparently anonymized information. MCSCS said this was possible – and that it could lead to violence against sex offenders – but never explained how.

“It wasn’t clear to me why they were going all the way to the Supreme Court,” she says, “why the Ministry of Community Safety and Correctional Services kept appealing this, because at every step of the way the courts have said the same thing.”

“You can’t just speculate. You have to give some evidence. You can’t just say ‘Look there’s all this information that’s out there, and you might be able to use it to reidentify.’ You have to show the court that.”

Cavoukian agrees:

“There has to be some demonstrable evidence, if you’re positing a case of harm – that we don’t want to release some information because some harm will result, then demonstrate that. It can’t be that you just have this view. It can’t be based on a ‘trust me’ model. That’s what the Ministry was advancing here. None of their arguments had any credence, and that’s why the (Supreme Court’s) decision was unanimous. That’s what pleases me about this.”

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