Ontario's freedom of information laws permit an institution to publicly disclose sensitive personal information if there is a "compelling public interest" that outweighs the individual's privacy. But is this balancing analysis undertaken for each tidbit of personal information, or is the public interest provision considered with a view to the totality of the records? The answer from the Court of Appeal in Barker v. Ontario (Information and Privacy Commissioner), 2019 ONCA 275 was "it depends".
Dr. Barker was the CEO of a medical institution. After the institution hired a convicted fraudster as its interim CFO, the institution retained an external consultancy to conduct a forensic investigation into conflicts of interest. Dr. Barker was interviewed and was assured that the information she provided to the investigator, and its resultant report, would remain confidential. This assurance apparently did not contemplate the operation of the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M.56 ("MFIPPA").1
A journalist made an access to information request for the investigator's report. The institution determined that, despite the fact that the MFIPPA would ordinarily bar disclosure of Dr. Barker's personal information (MFIPPA s. 14), there was a compelling public interest that justified disclosing the entire report (MFIPPA s. 16).
The Information and Privacy Commissioner of Ontario ("IPC") confirmed the institution's decision, holding that the public interest outweighed Dr. Barker's privacy interest even though "the majority of the personal information is highly sensitive" (Order MO-3295). Dr. Barker's request for reconsideration by the IPC was similarly unsuccessful.
On judicial review, the Divisional Court quashed the IPC's Order on the basis that the IPC's reasons were insufficient to adequately explain the decision (2017 ONSC 7564). Specifically, the IPC had not identified which parts of the 26-page investigator's report contained relevant personal information—and therefore provided no explanation as to what the IPC was weighing against the public interest.
Court of Appeal decision
The Court of Appeal granted the appeal and reinstated the IPC's Order. Drawing on the Supreme Court's Newfoundland Nurses decision,2 the Court of Appeal emphasized that a review of reasons is an "organic" task. In most cases, IPC may be required to consider every piece of personal information when considering which portions of the records to sever from disclosure. In Barker, however, the IPC was not required to do so where the parties agreed that the investigator's report contained personal information, and where the public interest provision was in play. There is no set formula for analyzing the public interest provision, and the IPC's reasons were reasonable.
With that context in mind, the Court of Appeal held that the IPC did not, in this case, need to engage in a piece-by-piece assessment for each piece of personal information, and then weigh it against the public interest in disclosure. The IPC's reasons identified the core relevant considerations in a s. 14 analysis: "substantial parts" of the report contained "highly sensitive" personal information, that Dr. Barker supplied the information in confidence, and that disclosure would constitute an unjustified invasion of privacy. In turning to the s. 16 "compelling public interest" analysis, the IPC remained alive to the impact of disclosure on Dr. Barker. In this case, while each piece of personal information alone told very little of the underlying story, it was the totality of the personal information that underscored the narrative of events and which bolstered the public interest in disclosure of it all.
Having said that, the Court of Appeal made sure not to create a one-size-fits-all analytic framework, stating:
- Sometimes, it may be necessary to conduct a piece-by-piece balancing of each bit of personal information against the public interest. For example, different parts of the record may engage very different personal privacy interests.
- The analytical exercise is "a nuanced and contextual one, requiring a weighing and balancing of interests", which the IPC is in the best position to determine.
The Court of Appeal's decision helps us understand how the MFIPPA and FIPPA public interest override provisions operate, even if the answer is that the IPC is the only one who really knows. We make the following three observations about Barker.
First, there is a sense of deep unfairness to Dr. Barker in publicly disclosing her personal information when she was assured it would remain confidential. There is undoubtedly a public interest in understanding how a known swindler was hired to lead a public institution. But we should also ask whether it goes against the public interest for an institution to disclose sensitive personal information that was only ever provided under false assurances of privacy.
The decision also illustrates a gap in the MFIPPA. Records subject to solicitor-client privilege may be protected (s. 14), but there is no comparable protection for Wigmore privilege, which weighs somewhat comparable factors as the MFIPPA.3 Surely there is a public interest in Dr. Barker's candid participation in the investigation, and that is the type of relationship that ought to be fostered—or else, in the future, individuals in Dr. Barker's position will decline to participate.
Second, the strategic decisions made by the party when resisting disclosure will frame the whole analysis. Underlying Barker was the fact that, in her initial submissions, Dr. Barker did not identify which parts of the report contained her personal information, or which subsections of the personal information exemption in MFIPPA s. 14 were applicable. In other words, her submissions did not include the very piece-by-piece analysis she argued for on appeal. Thus, in resisting a freedom of information request, it is important to decide at the earliest opportunity what the advocacy strategy will be, and stick to it.
Third, from an administrative law perspective, the gulf between the Divisional Court and the Court of Appeal illustrates the ongoing debate about the role of reasons in reasonableness review—a topic we addressed in this previous blog post. Barker is an example of the very issue we predicted in our previous post—the tribunal provides some reasons, but does not provide reasons in respect of one or more issues forming the grounds for the judicial review application. Here, it is a question of degree as to how much the reviewing court should "zoom out" and look at the big picture. In Barker, the Court of Appeal "zoomed out" and smoothed over the imperfections of the IPC's decision, taking a common sense approach to interpret what the IPC was really trying to communicate in his reasons.
Regardless of our opinion that Newfoundland Nurses does not provide a workable legal framework for reviewing reasons, we do agree with Rouleau J.A.'s statement in Barker that "Reasons must be responsive to the statutory task before the court." (para. 63).
Dr. Barker has sought leave to appeal the decision to the Supreme Court of Canada.4
1 The MFIPPA is in most material respects identical to the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31 ("FIPPA"), which applies to all public institutions in Ontario.
3 The four Wigmore criteria are: (1) the communications must originate in a confidence that they will not be disclosed; (2) this element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties; (3) the relation must be one which in the opinion of the community ought to be sedulously fostered; and (4) the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. See: Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, Fourth Edition, (Markham: LexisNexis Canada Inc., 2014) at § 14.16.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.