Government improperly disregarded the direction of the Information and Privacy Commissioner
Ministry of Community Safety and Correctional Services disregarded Privacy Commissioner’s direction to release report
The Divisional Court has found that the Ministry of Community Safety and Correctional Services improperly ignored the direction of the Information and Privacy Commissioner to release an OPP report.
In 1999, the Criminal Lawyers’ Association (CLA) requested access to a report prepared by the OPP. The report detailed an investigation of police conduct that was triggered by a judgment of Justice Glithero in 1997. In that case, the judge stayed a murder prosecution after identifying 17 instances of “deliberate non-disclosure or suppression, of virtually every piece of evidence that was of probable assistance to the defence”.
When its investigation was complete, the OPP issued a brief press release indicating that, despite Justice Glithero’s scathing judgment, it had found no instances of improper police conduct. The CLA submitted a request under the Freedom of Information and Protection of Privacy Act (“FIPPA”) to the Minister for the OPP investigation report.
The Ministry refused to release the report, claiming the exemption in s. 14(2)(a) of FIPPA (law enforcement report). The CLA pursued the matter to the Supreme Court of Canada. In a 2010 decision, the Supreme Court found that the Information and Privacy Commissioner failed in its review of the Ministry’s decision and order the Commissioner to reconsider the matter.
Commissioner reconsiders Ministry’s decision
On reconsideration before the Commissioner, the Ministry continued to claim that the s.14(2)(a) exemption provided a valid basis to withhold substantial portions of the OPP Report. The Ministry explained that it exercised its discretion to invoke the law enforcement exemption because certain individual witnesses had provided statements to the OPP, and those individuals did not want the information released. The CLA argued that the law enforcement exemption did not apply to the portions of the report that the Ministry continued to withhold.
In three successive decisions, the Commissioner concluded that the Ministry had improperly exercised its discretion. The Commissioner twice ordered the Ministry to exercise its discretion to release the report, but the Ministry refused to do so.
In its third and final decision, the Commissioner stated: “The Ministry’s revised decisions in response to these orders demonstrate a repeated refusal to heed [the Commissioner’s] guidance. As a result, while I do not uphold the Ministry’s exercise of discretion […], I find it would serve no useful purpose to return this matter to the Ministry for a further re-exercise of its discretion based on principles the Ministry has chosen to disregard.”
The CLA once again applied for judicial review.
The Divisional Court’s decision
The Divisional Court concluded that, under the terms of the Supreme Court’s 2010 order, the Commissioner was required to reconsider both the applicability of the s.14(2) exemption to the report, and the propriety of the Ministry’s exercise of discretion in claiming this exemption. The Commissioner had erroneously narrowed the scope of the remittal and failed to consider the question of the applicability of the s.14(2)(a) exemption. The Divisional Court therefore remitted the matter back to the Commissioner to determine whether the portions of the report that remain at issue qualified for exemption.
The Divisional Court further noted that it agreed with the Commissioner’s conclusion that the Ministry had exercised its discretion on the basis of an improper consideration, namely the absence of consent from certain interviewees. The Court also remitted this issue to the Commissioner, to be considered in the event that any portion of the report was found by the Commissioner to qualify for exemption.
Finally, the Court granted the CLA’s request for a declaration that the Ministry had disregarded the proper direction of the Commissioner that it did not have discretion to claim the s.14(2)(a) exemption for the OPP report. The Court concluded that issuing the declaration would serve a useful purpose, given that the Ministry had refused to exercise its discretion properly despite the Commissioner’s orders to do so.