DAVIS.CA VANCOUVER TORONTO MONTRÉAL CALGARY EDMONTON WHITEHORSE YELLOWKNIFE TOKYO Access to Tribunal Documents by TAMARA L. HUNTER ASSOCIATE COUNSEL for The Continuing Legal Education Society of British Columbia Self-Governing Professions 2014 April 4, 2014 Vancouver, BC Access to Tribunal Documents April 4, 2014 DAVIS.CA VANCOUVER TORONTO MONTRÉAL CALGARY EDMONTON WHITEHORSE YELLOWKNIFE TOKYO Table of Contents I. Introduction - Open Courts/Freedom of the Press and Privacy .......................................................... 1 II. Courts and Administrative Tribunals ..................................................................................................... 1 III. Protecting Privacy in Administrative Proceedings ............................................................................... 3 IV. The Effect of Access to Information/Protection of Privacy Legislation ............................................. 4 V. Deliberative Secrecy ................................................................................................................................ 7 VI. A Tribunal’s Right to Obtain Confidential Advice ................................................................................. 8 VII. Public Access to Tribunal Documents ................................................................................................... 9 VIII. Conclusion .............................................................................................................................................. 11 Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 1 of 11 I. INTRODUCTION - OPEN COURTS/FREEDOM OF THE PRESS AND PRIVACY1 The issue of access to tribunal documents during a hearing engages the constitutional principle of “open courts” and the freedom of the press protected by section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”), which states as follows: 2. Everyone has the following fundamental freedoms: … (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; … Without open courts and media access to court proceedings and to the key underlying case documents, freedom of the press would be significantly curtailed and the public’s right to a transparent justice system would be negatively affected. We all know that administrative tribunals and regulatory bodies have, over time, become a very significant component of our system of justice and self-governing professional bodies have played an important role in this area. Accordingly, the issue of access to tribunal documents during a hearing has important implications for the transparency and legitimacy of our system of justice in Canada. At the same time, self-governing professional bodies and other tribunals deal with matters involving sensitive personal information and the privacy rights of individuals engaging with tribunals therefore must also be given due consideration. II. COURTS AND ADMINISTRATIVE TRIBUNALS The issues of open courts and competing individual privacy rights were discussed and examined at length in Vancouver Sun (Re), 2004 SCC 43, which involved an application by a newspaper reporter for all materials filed in relation to an in camera examination of a potential Crown witness in the Air India trial. The Court was asked to consider the validity of a lower court order allowing an ex parte in camera judicial investigative hearing to occur under section 83.28 of the Criminal Code. This Code provision allowed for a peace officer, with the prior approval of the Attorney General, to apply for an order allowing for the gathering of information in camera, in relation to an alleged terrorism offense. The Court found that the proper balance between investigative imperatives and the value of openness would be best achieved through a discretion granted to judges to impose terms and conditions on the conduct of a hearing under section 83.28(5)(e) of the Criminal Code. The Court found that the level of secrecy which had occurred in this particular instance was unnecessary and, although it was appropriate for part of the hearing to occur in camera, there was no reason to keep secret the existence of the order or its subject matter. The Court found that as much information about the nature of the order as could be revealed without jeopardizing the investigation should have been made known to all parties, subject, if need be, to a total or partial publication ban. 1 This paper was adopted from a previous paper provided for the Canadian Bar Association’s 2010 National Administrative Law Labour & Employment Law and Privacy and Access Law Conference. I wish to acknowledge the invaluable research assistance of Deanna Brummitt, Associate, and Todd Shikaze, Articled Student, of Davis LLP, in preparing this paper. I also wish to acknowledge the significant contributions of Frank Work, Information and Privacy Commissioner for Alberta, to an earlier joint presentation on this topic, which presentation formed the basis for this paper. Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 2 of 11 In Vancouver Sun (Re), the Court noted that the test which had previously been set out by the Court in Dagenais v. Canadian Broadcasting Corp,.  3 S.C.R. 835 (Dagenais) and R. v. Mentuck,  3 S.C.R. 442 (Mentuck) was applicable not just to publication bans but also to all discretionary judicial decisions or orders that limit the freedom of the press. It follows from this that any decision (or rule) of a tribunal which limits access to tribunal documents can potentially give rise to a challenge based on the “open courts” principle and section 2(b) of the Charter. Similarly, determinations to hold tribunal proceedings (or parts of tribunal proceedings) in private may also engage constitutional rights. The Court held in Vancouver Sun (Re) that any order limiting freedom of the press must be “necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk”; and that the “salutary effects of the publication ban or order must outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial and the efficacy of the administration of justice” (at para. 29).2 The Court stated: “This court has emphasized on many occasions that the ‘open court principle’ is a hallmark of a democratic society and applies to all judicial proceedings.” … “The open court principle has long been recognized as a cornerstone of the common law… the right of public access to the courts is ‘one of principle’… turning, not on convenience, but on necessity.” … “Publicity is the very sole of justice. It is the keenest spur to exertion, and the surest of all guards against improbity.” … “Public access to the courts guarantees the integrity of judicial processes by demonstrating that ‘justice is administered in a non-arbitrary manner, according to the rule of law.” … “Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and public’s understanding of the administration of justice. Moreover, openness is a principle component of the legitimacy of the judicial process and why the public at large abide by the decisions of the courts.” (Vancouver Sun (Re) at paras. 23-25) While Vancouver Sun (Re) related to court rulings which had the effect of limiting freedom of the press, challenges have also been made to orders and rulings of administrative tribunals and regulatory bodies which have the effect of limiting freedom of the press and/or the public transparency of the tribunal or regulatory process. 2 This is the Dagenais/Mentuck test. Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 3 of 11 Arguably, restrictions on access to tribunal documents engages similar concerns about the “open courts” constitutional principle and freedom of the press. Some jurisprudence, however, has indicated that administrative tribunals and regulatory bodies are not necessarily subject to the same required degree of openness as a court. In Robertson v. Edmonton (City) Police Service, 2004 ABQB 519; appeal dismissed 2006 ABCA 302, a challenge was made to a regulation under the Police Act which allowed the Chief of the Edmonton Police Force to order that a police disciplinary proceeding be held in private. The Court found that the regulation was valid under the Charter in the circumstances and that there was nothing “automatically objectionable” about a regulation that provides for closed hearings in some cases. The Court stated “it cannot be assumed that an administrative tribunal is subject to a constitutional requirement to have the same degree of openness as a court”(at para. 207). This approach is somewhat in contrast with the earlier decision of the Federal Court of Appeal in Pacific Press Ltd. v. Canada (Minister of Employment and Immigration)  2 FC 327 (C.A.), in which it was held that a provision of the Immigration Act, providing that inquiries should be held in camera unless an adjudicator was satisfied that opening the inquiry would not impede the inquiry or adversely affect a claimant, offended the Charter because the discretion given to the adjudicator to open the hearing was too narrow.3 III. PROTECTING PRIVACY IN ADMINISTRATIVE PROCEEDINGS While the principle of “open courts”, general transparency and freedom of the press are obviously very important, it also must be considered, as noted above, that some administrative tribunals and regulatory bodies deal with very sensitive personal information of the individuals involved. For example, review panels under various provincial mental health statutes deal with very sensitive personal information and these hearings are often deemed presumptively private.4 Similarly, hearings conducted by child and family services authorities often include very sensitive personal information, including information about minors. Professional regulatory bodies often deal with personal information relating to a professional’s reputation and a third party’s privacy (for example a patient’s information in a professional regulatory hearing by the College of Physicians and Surgeons regarding a medical practitioner). In January 2005, the Canadian Judicial Council published the Austin-Pelletier synthesis of the Judges Technology Advisory Committee Discussion Paper and Comments – this document provides useful analysis regarding access to court records and competing privacy interests and provides a suggested framework for a Model Access Policy. Much of the Austin-Pelletier analysis is also applicable and helpful in the context of administrative tribunals. We will return to this analysis at the conclusion of this paper and address this point in more detail. 3 The provision in question has since been replaced with a more extensive provision providing greater flexibility and a presumption for certain proceedings to be public (see section 166 of Immigration and Refugee Protection Act). 4 See for example section 25(2.5) of the British Columbia Mental Health Act, section 37(2) of the Alberta Mental Health Act and section 53(5) of the Manitoba Mental Health Act. Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 4 of 11 IV. THE EFFECT OF ACCESS TO INFORMATION/PROTECTION OF PRIVACY LEGISLATION It should also be considered that, unlike superior courts, administrative tribunals and regulatory bodies are creatures of statute and many have been designated as “public bodies” or “government institutions” under access to information and privacy legislation. Many administrative tribunals and regulatory bodies are therefore subject to positive statutory obligations to protect personal information by, for example, only disclosing personal information as authorized and by making reasonable security arrangements against such risks such as unauthorized access, collection, use, disclosure or destruction.5 The applicability of access to information legislation also means that many tribunals and regulatory bodies are subject to access requests from the public or media relating to records which are in their custody or control. Interestingly, many access to information statutes expressly do not apply to “information in a court file”. There is not, however, an express parallel protection for information in an administrative tribunal file.6 Access to information legislation, however, contains various exceptions to the right of access. For example, there are exceptions which would cover advice from officials to the tribunal, sensitive business information of third parties, information the disclosure of which would be harmful to law enforcement or to a third party’s personal privacy (unless a statute authorizes or requires disclosure), and various forms of privilege including solicitor-client privilege. Interestingly, in some provinces, certain regulatory bodies (such as professional colleges or safety authorities) are subject to public sector freedom of information or access to information legislation whereas, in other provinces, such entities are subject to the private sector privacy legislation. For example, the Law Society of British Columbia is subject to the B.C. Freedom of Information and Protection of Privacy Act, whereas the Law Society of Alberta is governed by the Personal Information Protection Act (the same statute that is applicable to most Alberta private commercial corporations). This means, for example, that in British Columbia a complainant could make an access request under British Columbia FOIPPA to a professional college for all records relating to their complaint made to the College. In Alberta, however, the complainant would be required to frame their request as a request for their own personal information and would not be entitled to access records that did not constitute their own personal information.7 In Law Society of Alberta OIPC Order No. P2006-004, a complainant’s request for personal information pertaining to complaints he had made to the Law Society of Alberta were found not to constitute requests for his own “personal information”. The Commissioner found that Alberta PIPA did not govern what information a law society was required to provide to an applicant under the Law Society’s own processes pursuant to the Legal Profession Act. The complainant’s complaint to the Commissioner was thus dismissed and the Commissioner found the Law Society had properly used and disclosed the applicant’s information to process his complaint to the Society and had complied with the duty to establish policies under PIPA. There have been a number of cases in British Columbia where members of the media or other interested parties have made access requests under B.C. FOIPPA for records held by various professional regulatory bodies. 5 See for example Alberta’s Freedom of Information and Protection of Privacy Act, section 38, the British Columbia Freedom of Information and Protection of Privacy Act, section 30, Nova Scotia’s Freedom of Information and Protection of Privacy Act, section 24 and the federal Access to Information Act, section 61. 6 Having said that, section 3(1)(b) of B.C. FOIPPA does protect personal notes or drafts of a person acting in a quasi-judicial capacity. See also Ontario’s Freedom of Information and Protection of Privacy Act, section 65. 7 This would also appear to be the case in Ontario, as professional regulatory bodies do not appear to be “institutions” under the Ontario FOIPPA. Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 5 of 11 The results in these cases have been mixed. In an early Order involving the BC Police Commission, BC OIPC Order No. 13-1994, an access request was made by a member of the media to the BC Police Commission for complaint file information regarding identifiable police constables. The Commissioner allowed access to some of the records but found that other records were protected in light of the privacy interests of the police constables involved: “… I do not believe that the name of a complainant or the name of an officer complained about should normally be disclosed. The desire to avoid unjust stigmatization of police officers is an important consideration. However, if a complaint is found to be substantiated after a legal process has taken place (such as would occur in any event during a public inquiry), I think the presumption should be in favour of disclosure of police officers’ names”. … “Until an allegation has been proven, the factor described in Section 22(2)(a) (disclosure is desirable for the purpose of subjecting the activities of a public body to public scrutiny) does not outweigh the privacy interests described above. Accordingly, all information which would identify the policy officer should be severed if any unresolved complaint records are disclosed. Where complaints have been resolved informally, similar factors apply, since the police officer has not been through a formal legal process”. Similarly, in BC OIPC Investigation Report P99-013, regarding the British Columbia College of Teachers, the Commissioner confirmed that the College had taken an appropriate approach in not publicly disclosing hearing reports but in publishing, pursuant to the College’s Bylaws, case summaries of decisions reached by the Discipline Hearing Subcommittee8. Consistent with the “continuum” approach to privacy taken in BC OIPC Order No. 13-1994, requests under FOIPPA for a professional’s response to their professional college regarding a complaint where the professional’s response has been obtained by the college during its investigatory stage have generally been found to be rightly denied by the college. In BC OIPC Order F05-03, the Commissioner found the British Columbia Veterinarian Medical Association (“BCVMA”) had properly refused to disclose to a complainant copies of correspondence between the BCVMA and the member regarding the complaint. In British Columbia OIPC Orders F05-18 and F08-15, applicants (who had complained about psychologists) sought disclosure from the College of Psychologists of British Columbia of the responses provided to the College by the psychologists in question - in both cases disclosure was denied. The OIPC Adjudicators found that disclosure of such records would presumptively constitute an unreasonable invasion of the psychologists’ privacy and the applicants had not rebutted the presumption. Similarly, in Order P2009-09, the Alberta Director of Adjudication found that a psychologist's response to a complaint made about her to the College of Psychologists of Alberta contained the psychologist’s personal information, rather than the patient’s personal information - this included: her opinions and views about the Applicant …her treatment and other decisions relating to the Applicant… her standard practices and information relating to her personal work experience…the treatment file and the peer review notes insofar as these records are part of what the psychologist provided as further explanation or background to her treatment decisions and related actions… (at para. 40) 8 Notwithstanding this, the Law Society of B.C. has passed a rule which allows for publication of a Citation against a member prior to a hearing. Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 6 of 11 However, in BC OIPC Order F07-22, the response to a complaint provided by a chiropractor to the College of Chiropractors was found disclosable in the particular circumstances of that case. The Adjudicator noted in that case that the College of Chiropractors had not provided much of an explanation to the complainant as to why the complaint had not resulted in a disciplinary proceeding against the chiropractor. In light of the lack of pro-active transparency, the Adjudicator found that the chiropractor’s response to the complaint was disclosable to the complainant under FOIPPA. BC OIPC Order F02-22 was distinguished in Order F08-15, where the Adjudicator stated: “[u]nlike Order F07-22, the College’s processes here have been reasonably transparent in the sense of providing an explanation of what it did and reasons for doing so. To the extent the applicant’s argument here is really, at its heart, a criticism of the College’s reasoning and its expression, I have no authority under FIPPA to address the fulsomeness or brevity of the College’s decisions” (at para. 44). The British Columbia Court of Appeal has also considered the reputation of a professional involved in a regulatory proceeding to be worthy of protection in some circumstances. In Dr. Q v. College of Physicians and Surgeons of British Columbia, 1999 62 B.C.L.R. (3d) 375 (B.C.C.A.), the Court granted an injunction to allow anonymity for Dr. Q during a Supreme Court Appeal from a disciplinary decision of the College of Physicians and Surgeons and prevented the College from releasing a summary of the case to the media until the appeal was determined. The Court stated: “While it may be said that the primary goal of the confidentiality is to protect complainants, I think it is also true to say that doctors are intended to be protected. There is a public interest in not damaging professional reputations unnecessarily”. (at para. 24)9 In Alberta OIPC Order No. 96-003, involving the Law Enforcement Review Board, the Commissioner found that some severing of information from records was required prior to the disclosure of an internal bulletin and a “final report” from Internal Affairs to the Chief of Police regarding the applicant’s complaint about a municipal police force. For example, the names and other identifying information of third parties who had provided information about the applicant were required to be severed from the records. The Commissioner stated at p. 11: “In the initial stages [of a complaint investigation]… the personal privacy of both officers and complainants is a major consideration.” The tension between a police officers’ privacy interest and the desirability of public scrutiny of complaint resolution processes was also considered in Alberta OIPC Order No. F2008-020. There, consistent with the “continuum approach to privacy taken in BC OIPC Order No. 13-1994, Adjudicator Raaflaub found that although an officer’s privacy interest diminishes at each level of a complaint resolution process, the desirability of public scrutiny will generally not outweigh an officer’s privacy interest until a complaint has been determined by a formal process. While Privacy Commissioners have often given weight to a professional person’s privacy interests (at least until the point that a formal determination process takes place), the Supreme Court of British Columbia has recently held that only in unusual circumstances will a professional who has sought judicial review of a Health Professions Review Board decision be granted an order for the use of pseudonyms in the court proceeding to protect the professional’s identity.10 9 See also Hirt v. College of Physicians and Surgeons of British Columbia (1985) 17 D.L.R. (4th) 472 - where the Court of Appeal limited public access to the transcript of an in camera discipline proceeding before the College where the outcome of the proceeding had been appealed to the Courts by Dr. Hirt (this Order was intended to protect the identity of complainants and other witnesses as the case involved allegations of sexual misconduct by the doctor.) 10 Disclosure orders in the context of British Columbia Health Professions Review Board proceedings is addressed in Jason Herbert’s paper provided separately for this CLE and thus will not be addressed here. Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 7 of 11 In JC v. Health Professions Review Board, 2014 BCSC 372, the Supreme Court of British Columbia rejected an application by a doctor for use of pseudonyms for himself and the complainant where the doctor had brought an application for judicial review of a Health Professions Review Board decision. The Court held that the potential for embarrassment and the preference for anonymity was insufficient to overcome the general presumption of openness: “[T]he open court principle requires proceedings to be open and accessible to the public unless it is shown that an exception is necessary to protect an important legal interest and no alternative measure is adequate.” (at para. 21) The differing approach of the Court in JC v. Health Professions Review Board and that of Privacy Commissioners may be in part explained by the fact that in the matters before the Privacy Commissioners, the professionals involved had generally not initiated the proceedings themselves but, rather, were merely responding to complaints made about them by someone else. V. DELIBERATIVE SECRECY Individuals have sometimes requested copies of the notes made by Board members during tribunal hearings. For example, in Canada (Privacy Commissioner) v. Canada (Labour Relations Board),  3 F.C. 609, aff’d 2000 CanLII 15487 (F.C.A.), the Court found that the Canada Labour Relations Board had properly refused to disclose to the applicant (who had been a complainant at a CLRB hearing) notes of the Board members made during the hearing. The Court found that the Board members’ notes were an aide mémoire of a quasi-judicial tribunal and were not under the “control” of the Canada Labour Relations Board11. Moreover, the release of such notes would be harmful to a “law enforcement matter” because deliberative secrecy was essential to the performance of the Board members’ duties and disclosure of the notes would compromise the operations of the Canada Labour Relations Board. Similarly, in BC OIPC Order No. 00-16, regarding the BC Labour Relations Board, the Commissioner found that draft decisions, notes, copies of emails and memorandum sent between Panel members regarding various issues raised by an application before the Board are excluded from disclosure under section 3(1)(b) of the British Columbia Freedom of Information of Information and Protection of Privacy Act as they are “personal note[s], communication[s] or draft decisions of a person acting in a judicial or quasi-judicial capacity”.12 The Ontario Information and Privacy Commissioner came to a somewhat similar conclusion regarding records of Board members of both the Rent Review Hearings Board in Order No. P-396 and of the Health Professions Appeal and Review Board in Order No. PO 2648, finding that such notes and communications of individual Board members were not in the “custody and control” of the Boards. While the internal records of tribunal members regarding a case have been found not to be disclosable, this is not the case with respect to statistical information regarding the outcomes of various cases heard by identified tribunal members. In 2005 to 2006, the Federal Information Commissioner dealt with a complaint from a journalist who had requested statistics about the outcomes of refugee claims cases heard by a particular member of the Immigration Refugee Board. The Federal Commissioner found that the Immigration Refugee Board had wrongly refused the journalist’s request for the statistics relating to the decisions of the named Board member. The Commissioner concluded that the outcome of quasi-judicial decision-making is not information about the decider; it is, rather, the decider’s “work product”. The Commissioner stated that the public interest in the 11 Records that are not in the custody or under the control of a government institution are not responsive records to an ATIPP request. 12 See also BC OIPC Order No. 02-12 regarding the Workers’ Compensation Review Board. Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 8 of 11 accountability of the Immigration Refugee Board also outweighed any potential negative effects of disclosure, especially when it was open to the Immigration Refugee Board to disclose any needed contextual information to aid in the interpretation of the statistics. In this case, the Immigration Refugee Board agreed to disclose the requested information after having received the Information Commissioner’s views on the matter.13 Access to information legislation has also had an impact on the openness of hearings. In Canada (Information Commissioner) v. Canada (Immigration Appeal Board)  F.C.J. No. 324 (T.D.), the media challenged an order of the Immigration Appeal Board that a particular immigration proceeding be heard in camera and that the record be sealed. The Court found in favour of the media outlet on the basis that the Access to Information Act provided a general right of access and the provisions of the Immigration Act that allowed for in camera hearings were not referenced in Schedule 2 of the Access to Information Act and thus did not override the general right of access provided by ATIPP. The tension between deliberative secrecy and the open courts principle often arises as a result of allegations of bias. For example, in IMS Health Canada Ltd. v. Alberta (Information & Privacy Commissioner) (2005), 34 Admin. L.R. (4th) 94 (Alta. C.A.), IMS accused the Information and Privacy Commissioner of differential treatment when the Commissioner issued an order against IMS solely despite other companies allegedly engaging in similar conduct. In considering the threshold for investigating a tribunal’s deliberative process, the Alberta Court of Appeal determined that the principle of deliberative secrecy is not absolute and must be balanced against deliberative openness. However, a party must nevertheless show a valid reason for believing an allegation of differential treatment before records related to that treatment will be disclosed. Similarly, in Brar v. British Columbia Veterinary Medical Assn. (No. 18), 2010 BCHRT 308, the Respondents alleged an apprehension of bias against the Panel member adjudicating their complaint, and further applied to the Tribunal for disclosure of the Tribunal’s file relating to the Panel member. The Panel member decided against disclosure, finding that such orders should only be granted in exceptional circumstances and only if there is a factual foundation to support the request. Ultimately, however, the Panel member relied on section 55 of the B.C. Administrative Tribunals Act to protect against the disclosure, which provides, inter alia, that a tribunal member must not be required to produce evidence in any proceeding other than a criminal proceeding. Professional regulatory tribunals faced with a similar request would also need to consider the confidentiality provisions of their governing statutes (such as section 53 of the Health Professions Act). VI. A TRIBUNAL’S RIGHT TO OBTAIN CONFIDENTIAL ADVICE Information and Privacy Commissioners have also had to deal with situations where the public’s right to transparency must be balanced against the right of the tribunal or regulatory body to receive confidential advice related to their tribunal duties and responsibilities. In Alberta OIPC Order 2001-013, an applicant had made a complaint against certain police officers and the Law Enforcement Review Board had obtained a Calgary Police Service Final Report as part of its review. The Alberta Commissioner found that the Law Enforcement Review Board had properly severed from the Final Report several recommendations made to the Chief of Police by the Calgary Police Service Officials, before releasing the remainder of the document to the applicant. The Commissioner found that the recommendations constituted advice and were excepted from disclosure under the freedom of information legislation. The decision to sever only the portions constituting advice and to leave in the portions detailing the conduct of the investigation was found to strike a good and accountable balance between access and the ability of the Chief of Police to receive confidential advice from Calgary Police Service officials. 13 See 2005-2006 Annual Report of the Federal Information Commissioner at www.infocom.gc.ca\reports. The Federal Commissioner does not have order-making power and can only issue recommendations (or proceed to Federal Court if the recommendations are rejected by the government institution). Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 9 of 11 In this regard, the Court of Appeal in British Columbia has found that the “advice exception” in the BC FOIPPA is not limited to a communication or recommendation about a future action and would include advice or an opinion about an existing set of facts or circumstances and what those facts do or do not amount to. In College of Physicians of B.C. v. British Columbia (Information and Privacy Commissioner) 2002 BCCA 665, the Court found that written opinions of experts provided to the College and memoranda prepared by the College’s lawyers summarizing oral opinions of experts were excepted from disclosure under FOIPPA as constituting “advice provided by or for a public body”.14 The Court stated: “In my view, Section 13 of the Act recognizes that some degree of deliberative secrecy fosters the decision-making process, by keeping investigations and deliberations focused on the substantive issues, free of disruption from extensive and routine enquiries. The confidentiality claimed by the College has a similar objective: to allow it to thoroughly investigate a complaint with the open and frank assistance of those experts who have the knowledge and expertise to help in assessing a complaint and deciding how to proceed. …” “ … The deliberative process includes the investigation and gathering of the facts and information necessary to the consideration of specific or alternative courses of action”. … “[Advice] should be interpreted to include an opinion that involves exercising judgement and skill to weigh the significance of matters of fact.” (at paras.105-113) VII. PUBLIC ACCESS TO TRIBUNAL DOCUMENTS Many tribunals and regulatory bodies wish to provide some degree of pro-active routine disclosure of tribunal/regulatory documents, but struggle with finding the right balance between transparency and protection of personal privacy. With respect to court documents, the Austin/Pelletier synthesis notes the following: unrestricted electronic access to court information facilitates uses, such as bulk searches and downloads and commercial data–mining practices, which have a weak connection to the open courts principle but have serious effects on individual rights to privacy and to the proper administration of justice; unrestricted electronic access could raise a number of privacy concerns, including identity theft and the possibility of harassment; there is a general consensus that remote public access to the contents of all court records is not desirable; there is a general consensus that remote public access should be provided to judgements, with privacy concerns dealt with through de-identification protocols for which courts would be responsible; and suggestions to deal with privacy concerns regarding docket information and other court records include: implementing de-identification protocols, publishing the fact that a document exists without providing details regarding its contents, charging fees for remote access, providing remote access only to specific categories of users, and/or exempting “sensitive” records (e.g. family court records) from remote electronic access entirely. 14 See also B.C. Freedom of Information and Privacy Association v. British Columbia (Information and Privacy Commissioner), 2010 BCSC 1162; Insurance Corporation of British Columbia v. Automotive Retailers Association, 2013 BCSC 2025; and Provincial Health Services Authority v. British Columbia (Information and Privacy Commissioner) 2013 BCSC 2322 in relation to the meaning of “advice or recommendations” in section 13 of the B.C. FOIPPA. Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 10 of 11 The issue of unrestricted electronic access to tribunal decisions was recently addressed in Alberta OIPC Privacy Complaint F6566, where the OIPC found that the Law Enforcement Review Board did not breach the Alberta Freedom of Information and Protection of Privacy Act when the Board posted a decision about the misconduct of a police officer on its website in a manner retrievable by inputting the officer’s name into a web search engine. Such publication was permissible on the basis that public disclosure is commensurate with the open courts principle and is directly and reasonably connected to the original reasons for collecting the information. In rendering its decision, the OIPC made several recommendations on the basis of the B.C. and Canadian Privacy Commissioners’ guidance documents on the electronic publication of decisions of administrative tribunals.15 The OIPC recommended that the Board review its indiscriminate online publication policies to determine whether the Board could adequately balance its openness and privacy objectives by implementing some form of online ease-of-access continuum for the searchability of information, for example by permitting serious public-interest issues to be easily searchable through a search engine while permitting access to minor conduct issues by request only.16 The best practice, of course, is for an administrative tribunal’s or regulatory body’s governing statute (or rules/regulations made pursuant to that statute) to expressly address how tribunal information and records will be disclosed and/or published in various circumstances. For example, Rule 6 of the B.C. Human Rights Tribunal Rules of Practice and Procedures provides that personal information held in a complaint file will be disclosed to the public at hearings and in decisions issued by the Tribunal. Information in certain records (e.g. the Complaint and Response) will also be made publicly available three months prior to a hearing.17 However, on application, the Tribunal can make an order limiting public disclosure of personal information if a participant’s privacy interests outweigh the public interest in access to the Tribunal’s proceedings.18 Tribunals and regulatory bodies considering pro-active disclosure of documents should have regard to the following factors and considerations for deciding what disclosure should incur on a routine basis: Remote electronic access versus on-site/hard copy access; Disclosure of final decisions or determinations versus disclosure of other information (allegations, investigations, consensual resolutions); Disclosure of information only after a final determination versus earlier disclosure of information; Disclosure of detailed identifiable information versus disclosure of a summary with identifiers removed; Disclosure of a full decision, including identifiers, versus disclosure of a full decision which has been severed to remove some identifiers or which has been written so as to minimize identifiers and unnecessary personal details; Indiscriminate electronic publication versus electronic publication that implements searchability restrictions or robot exclusion protocols; 15 See Electronic Disclosure of Personal Information in the Decisions of Administrative Tribunals, online: (Feb 2010) https://www.priv.gc.ca/information/pub/gd_trib_201002_e.pdf; Balancing Privacy and Openness: Guidelines on the Electronic Publication of Decisions of Administrative Tribunals, online: (July 2011) http://www.oipc.bc.ca/tools-guidance/guidance-documents.aspx. 16 See also Saskatchewan OIPC Report LA-2012-002, where the OIPC recommended the implementation of similar mitigation strategies with respect to indiscriminate internet publication of government employee salaries. 17 Other than a participant’s address and telephone and fax numbers. 18 See also section 3 of the Alberta Human Rights and Citizenship Commission Procedural Manual for Panel Hearings, which provides that a hearing before the Human Rights Panel will be public unless the Panel determines it would be advisable for the hearing to be private because of the confidential nature of the matter to be heard or because of a potential adverse effect on a complainant. Access to Tribunal Documents April 4, 2014 © Davis LLP 2014 Page 11 of 11 Tribunals need to know their jurisdiction and be aware of how access and privacy laws apply to them; Having a written policy or rules (with some built-in inflexibility) respecting the collection, use and disclosure of documents and information is useful. If participants know the extent of their exposure, they can flag sensitive information for the tribunal’s more focused consideration; It is important to balance the need for transparency, accountability, and the appearance of justice with a due regard for individual privacy; Tribunals must have regard to maintaining appropriate security measures and for maintaining appropriate records management with a well considered retention and destruction policy. VIII. CONCLUSION The disclosure of documents before, during or after a tribunal or regulatory proceeding involves difficult and complex issues of transparency, access to justice and the protection of personal information of individuals. Tribunals must have regard to the provisions of their underlying statute (and any rules, regulations or bylaws passed thereunder), the provisions of general administrative law legislation such as the BC Administrative Tribunals Act or the Ontario Statutory Powers Procedure Act, the provisions of access to information and privacy legislation which may be applicable and the constitutional principles of “open courts” and freedom of the press. As the demand for routine, pro-active electronic disclosure of tribunal records inevitably increases, due consideration must be given as to how and when such disclosure will occur in order to achieve the best possible balance between transparency and the protection of individual privacy.