Articles of Interest - Disclose

by Caroline Verner, Legal Counsel
July 2011

The RCMP External Review Committee (ERC) is committed to being transparent and to do so, it publishes summaries of its Findings & Recommendations (F&Rs) on its website. The full text of each F&R is available in both official languages upon request. Many issues can arise as the ERC renders F&Rs on grievances, discipline and discharge and demotion cases. The privacy issues are distinct for each category because different statutory provisions apply. The availability of decisions widely over the internet has raised new privacy concerns that must be addressed by courts and administrative tribunals like the ERC. This article will describe the ERC's current approach and policy when disclosing F&Rs to members of the RCMP, the media and the public.

It has long been the practice of the ERC to disclose a depersonalized version of F&Rs upon request. This procedure is in place for all three categories of cases (grievances, discipline and discharge and demotion). When the ERC depersonalizes cases, it usually removes the names of the grievor and the respondent as well as any person involved in the grievance (witnesses, spouse of the grievor, etc), and information that could possibly identify them, such as the grievor's regimental number, detachment, and information on posting missions for the UN. In some cases, the respondent's title is also removed in order to protect the location where the grievance was submitted.

The open court principle is regarded as a central tenet of our legal system. Generally, the principle requires that court proceedings be open to the public, and that the media have general access to those proceedings for publication. The information published by the media encourages feedback and debate among members of the public. These promote the accountability of government institutions. The legitimacy of justice depends on it; the fairness of trials and hearings and public confidence in the systems are at stake.

It is well recognized that privacy is unavoidably compromised by court proceedings, but as Mr. Justice Dickson stated: "It is now well established, however, that covertness is the exception and openness the rule" (Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175). The public's confidence in the integrity of the court system and its understanding of the administration of justice are fostered by a rule in favour of openness. When pitted against the very integrity of the justice system, the privacy interests of individuals do not weigh heavily in the scales.

As stated by the Supreme Court of Canada in Ontario (Public Safety and Security) v. Criminal Lawyers Association, [2010], there is no Charter right of access to information. However, freedom of expression guaranteed by s.2b) of the Canadian Charter of Rights and Freedoms (Charter) makes access to information a derivative right which may arise where it is a necessary precondition of meaningful expression for the functioning of government.

As for an administrative tribunal such as the ERC, there is a conflict between the open court principle and the Privacy Act. Administrative tribunals, unlike courts, are government institutions that are subject to the Privacy Act. They are bound to protect certain personal information. Therefore, it must find the balance between the two rights: the public's right to transparency under the open court principle and the individual's right to privacy. Neither has precedence over the other. It could be said that this balance has a sliding scale depending on the significance of the privacy interest at risk (e.g.: releasing the identity of a person is not as invasive as releasing their medical information). This balance should also take into consideration the importance of the public interest at stake. For example the release of information about medical malpractice is more important for the protection of society than the identities of parties in a landlord/tenant dispute. And finally, alternative forms of disclosure should be considered such as redacting a document instead of refusing to disclose it entirely.

Section 3 of the Privacy Act defines "personal information" as being information about an identifiable individual that is recorded in any form. It encompasses the following:

• information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual;
• information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;
• any identifying number, symbol or other particular assigned to the individual;
• the address, fingerprints or blood type of the individual,
• the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations;
• correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence;
• the views or opinions of another individual about the individual;
• the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph (e), but excluding the name of the other individual where it appears with the views or opinions of the other individual, and
• the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual.

However, for the purpose of the Privacy Act and the Access to Information Act, the following is not considered personal information:

• information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,
  1. the fact that the individual is or was an officer or employee of the government institution;
  2. the title, business address and telephone number of the individual;
  3. the classification, salary range and responsibilities of the position held by the individual;
  4. the name of the individual on a document prepared by the individual in the course of employment; and
  5. the personal opinions or views of the individual given in the course of employment;
• information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services;
• information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit; and
• information about an individual who has been dead for more than twenty years.

Section 7 of the Privacy Act provides that personal information under the control of a government institution shall not, without the consent of the individual, be used by the institution except for the purpose for which it was obtained or for the purpose for which it may be disclosed under subsection 8(2). More particularly, subparagraph 8(2)(a) and 8(2)(m)(i) state that personal information may be disclosed when the disclosure is for the purpose for which it was obtained and where the interest of the public outweighs the right of an individual to privacy.

A tool that the ERC relies on to write F&Rs that protect individual privacy is the Canadian Judicial Council's Use of Personal Information In Judgments and Recommended Protocol (CJC Protocol). This Protocol was adopted by the Heads of Federal Administrative Tribunals Forum (HFATF), of which the ERC is a member. The ERC also relies on the HFATF statement adopted which encourages, to the extent possible, a consistent approach to the use of personal information by administrative tribunals in their decisions and posting of decisions on websites for those administrative tribunals that operate in accordance with the open court principle.

The HFATF further recognizes that the "web robot exclusion protocol", which is respected by commonly used Internet search engines to restrict the global indexing of specifically designated documents posted on websites, is an acceptable technical means for providing fair protection to personal information contained in administrative tribunals' decisions posted on their websites.

The CJC Protocol states that other than a person's name, unnecessary personal identifiers such as day and month of birth, social insurance number, credit card numbers and financial account numbers should be omitted from all reasons for decisions. It also provides that other personal information which could permit the identification of a person should be omitted where there is a statutory or common law publication ban in order to protect a third party. The CJC Protocol states that the possibility that some people in the local area may be able to identify the individual involved by piecing together the specific factual information should not outweigh the greater public interest in a cohesive, reasoned decision. This type of information would include: year of birth, gender, district, jurisdiction and country of birth and residence, professional status and occupation and political affiliations. The CJC also discourages disclosure of other personal information when the dissemination of this information would harm innocent persons or subvert the course of justice.

The RCMP Act states that hearings in grievance cases are to be held in private. The RCMP Administration Manual (grievances) also bolsters the presumption of confidentiality of the process by that these cases are confidential unless the grievor consents to the release of his personal information.

Furthermore, it is important to consider the category of F&Rs because appeals of discipline cases involve significantly different considerations after the Supreme Court of Canada released its decision in Southam Inc. v. Canada (Attorney General) [1997] O.J. No. 4533. Southam ruled that subsection 45.1(14) of the RCMP Act, which stated that hearings shall be heard in private, was unconstitutional. As discipline hearings are now deemed public, subsection 8(2)(m)(i) of the Privacy Act could apply when the ERC discloses F&Rs of discipline appeals. This means that the entirety of the F&Rs in disciplinary appeals could be legally disclosed and published. However, as stated above the ERC has adopted the CJC Protocol which protects personal identifiers.

As stated previously, RCMP grievance proceedings are not open to the public and thus will be dealt with in confidentiality. Following the Privacy Act and the CJC Protocol, a depersonalized version will be provided if requested. Discipline cases, although open to the public, will also be redacted according to the CJC Protocol.

Public access to reasons for decisions is an important aspect of the open court principle as it allows for justice to be seen to be done. The ERC can suitably comply with privacy legislation and accomplish its goal of openness by disclosing de-identified reasons.