June 16, 2010
Ontario (Public Safety and Security) v. Criminal Lawyers Association
The Supreme Court remitted this case back to the Information and Privacy Commissioner for reconsideration, on the issue of the proper exercise of discretion by the Minister vis a vis the law enforcement exemption. The court held the failure to include a public interest override in respect of the law enforcement and solicitor-client exemptions does not violate s.2(b) of the Charter. Interestingly, though, they opened the possibility of finding constitutional protection for access to information in government hands where such access:
 … is shown to be a necessary pre-condition of meaningful expression, does not encroach on protected privileges, and is compatible with the function of the institution concerned.
 The first question to be addressed is whether s. 2(b) protects access to information and, if so, in what circumstances. For the reasons that follow, we conclude that s. 2(b) does not guarantee access to all documents in government hands. Section 2(b) guarantees freedom of expression, not access to information. Access is a derivative right which may arise where it is a necessary precondition of meaningful expression on the functioning of government.
The court’s analysis followed its Irwin Toy and City of Montreal decisions.
 The Irwin Toy framework involves three inquiries: (1) Does the activity in question have expressive content, thereby bringing it within the reach of s. 2(b)?; (2) Is there something in the method or location of that expression that would remove that protection?; (3) If the activity is protected, does the state action infringe that protection, either in purpose or effect?
 … This leads us to more detailed comments on the scope of s. 2(b) protection where the issue is access to documents in government hands. To demonstrate that there is expressive content in accessing such documents, the claimant must establish that the denial of access effectively precludes meaningful commentary. If the claimant can show this, there is a prima facie case for the production of the documents in question. But even if this prima facie case is established, the claim may be defeated by factors that remove s. 2(b) protection, e.g. if the documents sought are protectedby privilege or if production of the documents would interfere with the proper functioning of the governmental institution in question. If the claim survives this second step, then the claimant establishes that s. 2(b) is engaged. The only remaining question is whether the government action infringes that protection.
Is there a constitutional right to access to information?
 … the Court has recognized access to information under s. 2(b) in the judicial context: “members of the public have a right to information pertaining to public institutions and particularly the courts” (Edmonton Journal v. Alberta (Attorney General),  2 S.C.R. 1326, at p. 1339). The “open courts” principle is “inextricably tied to the rights guaranteed by s. 2(b)” because it “permits the public to discuss and put forward opinions and criticisms of court practices and proceedings” (Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 S.C.R. 480, at para. 23, per La Forest J.).
 In sum, there is a prima facie case that s. 2(b) may require disclosure of documents in government hands where it is shown that, without the desired access, meaningful public discussion and criticism on matters of public interest would be substantially impeded. As Louis D. Brandeis famously wrote in his 1913 article in Harper’s Weekly entitled “ What Publicity Can Do”: “Sunlight is said to be the best of disinfectants … .” Open government requires that the citizenry be granted access to government records when it is necessary to meaningful public debate on the conduct of government institutions.
That’s not the end of the analysis, however:
 If this necessity is established, a prima facie case for production is made out. However, the claimant must go on to show that the protection is not removed by countervailing considerations inconsistent with production.
 Privileges are recognized as appropriate derogations from the scope of the protection offered by s. 2(b) of the Charter….Since the common law and statutes must conform to the Charter, assertions of particular categories of privilege are in principle open to constitutional challenge. However, in practice, the outlines of these privileges are likely to be well- settled, providing predictability and certainty to what must be produced and what remains protected.
 It may also be that a particular government function is incompatible with access to certain documents. For example, it might be argued that while the open court principle requires that court hearings and judgments be open and available for public scrutiny and comment, memos and notes leading to a judicial decision are not subject to public access. This would impair the proper functioning of the court by preventing full and frank deliberation and discussion at the pre-judgment stage…
As for this case:
 In our view, it is not established that the absence of a s. 23 review for public interest significantly impairs the CLA’s access to documents it would otherwise have had. Law enforcement privilege and solicitor-client privilege already take public interest considerations into account and, moreover, confer a discretion to disclose the information on the Minister. For the reasons that follow, we conclude that the public interest override contained in s. 23 would add little to what is already provided for in s. 14 and s. 19 of the Act.
The court focussed its attention on how the public interest should be taken into account in the exercise of Ministerial discretion:
 However, by stipulating that “[a] head may refuse to disclose” a record in this category, the legislature has also left room for the head to order disclosure of particular records. This creates a discretion in the head.
 A discretion conferred by statute must be exercised consistently with the purposes underlying its grant: Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817, at paras. 53, 56 and 65. It follows that to properly exercise this discretion, the head must weigh the considerations for and against disclosure, including the public interest in disclosure.
Exercising discretion is a two step process. For example, in the context of the law enforcement exemption:
 In making the decision, the first step the head must take is to determine whether disclosure could reasonably be expected to interfere with a law enforcement matter. If the determination is that it may, the second step is to decide whether, having regard to the significance of that risk and other relevant interests, disclosure should be made or refused. These determinations necessarily involve consideration of the public interest in open government, public debate and the proper functioning of government institutions. A finding at the first stage that disclosure may interfere with law enforcement is implicitly a finding that the public interest in law enforcement may trump public and private interests in disclosure. At the second stage, the head must weigh the public and private interests in disclosure and non-disclosure, and exercise his or her discretion accordingly.
 The public interest override in s. 23 would add little to this process. Section 23 simply provides that exemptions from disclosure do not apply “where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption”. But a proper interpretation of s. 14(1) requires that the head consider whether a compelling public interest in disclosure outweighs the purpose of the exemption, to prevent interference with law enforcement. If the head, acting judicially, were to find that such an interest exists the head would exercise the discretion conferred by the word “may” and order disclosure of the document.
The same process is involved in considering solicitor-client privilege, but
 Given the near-absolute nature of solicitor-client privilege, it is difficult to see how the s. 23 public interest override could ever operate to require disclosure of a protected document. This is particularly so given that the use of the word “may” would permit and, if relevant, require the head to consider the overwhelming public interest in disclosure. Once again, the public interest override in s. 23 would add little to the decision-making process.
In the end:
 We conclude that the CLA has failed to establish that the inapplicability of the s. 23 public interest override significantly impairs its ability to obtain the documents it seeks. Sections 14 and 19 already incorporate, by necessity, the public interest to the extent it may be applicable.
To ensure the public interest is taken into account generally in the exercise of discretion, the court gave direction to the Minister and the Commissioner:
(b) The Duty of the “Head” (or Minister)
 As discussed above, the “head” making a decision under s. 14 and s. 19 of the Act has a discretion whether to order disclosure or not. This discretion is to be exercised with respect to the purpose of the exemption at issue and all other relevant interests and considerations, on the basis of the facts and circumstances of the particular case. The decision involves two steps. First,the head must determine whether the exemption applies. If it does, the head must go on to ask whether, having regard to all relevant interests, including the public interest in disclosure, disclosure should be made.
 The head must consider individual parts of the record, and disclose as much of the information as possible. Section 10(2) provides that where an exemption is claimed, “the head shall disclose as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemptions”.
(c) The Duty of the Reviewing Commissioner
 The Commissioner’s review, like the head’s exercise of discretion, involves two steps. First, the Commissioner determines whether the exemption was properly claimed. If so, the Commissioner determines whether the head’s exercise of discretion was reasonable.
 In IPC Order P-58/May 16, 1989, Information and Privacy Commissioner Linden explained the scope of his authority in reviewing this exercise of discretion:
In my view, the head’s exercise of discretion must be made in full appreciation of the facts of the case, and upon proper application of the applicable principles of law. It is my responsibility as Commissioner to ensure that the head has exercised the discretion he/she has under the Act. While it may be that I do not have the authority to substitute my discretion for that of the head, I can and, in the appropriate circumstances, I will order a head to reconsider the exercise of his/her discretion if I feel it has not been done properly. I believe that it is our responsibility as the reviewing agency and mine as the administrative decision-maker to ensure that the concepts of fairness and natural justice are followed.
 Decisions of the Assistant Commissioner regarding the interpretation and application of the FIPPA are generally subject to review on a standard of reasonableness.
 The Commissioner may quash the decision not to disclose and return the matter for reconsideration where: the decision was made in bad faith or for an improper purpose; the decision took into account irrelevant considerations; or, the decision failed to take into account relevant considerations (see IPC Order PO-2369-F/February 22, 2005, at p. 17).