InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

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Matthew G. Yeager v. Correctional Service of Canada and Commissioner of Corrections
Indexed as: Yeager v. Canada (Correctional Service)

File No.:	A-332-01
References:	2003 FCA 30; [2003] F.C.J. No. 73 (QL) (F.C.A.)
Date of decision:	January 22, 2003
Before:	Stone, Isaac, Malone JJ.A.
Section(s) of ATIA/PA:	Ss. 2, 3, 4, 12, 53 Access to Information Act (ATIA); s. 3 Access to Information Regulations
Other statute(s):	S. 2(b) Canadian Charter of Rights and Freedoms

Abstract

• Interpretation of subs. 4(3) ATIA and s. 3 ATIA Regulations
• Duty to produce non-existent record from machine readable record
• Whether "software" is a record

Issues

Whether the (a) data requested (Data), (b) the code book to interpret the data (Code Book), and (c) the computer software to use the data on a personal computer are records within the meaning of s. 3 ATIA.

Whether the appellants must create and supply records that do not exist but can be produced from a machine readable record.

Whether creating the records would unreasonably interfere with the operations of the institution.

Facts

The Research Branch of the Correctional Service Canada (CSC) conducts statistical research and analysis on various subjects in the field of corrections. In order to facilitate such research and analysis, the Research Branch is allowed access to several classified databases of other agencies, such as the Royal Canadian Mounted Police (RCMP), the Canadian Police Information Centre (CPIC) and the National Parole Board (NPB). Typically, CSC obtains such information online through electronic links to computer networks of the agencies mentioned above. This information may be compiled "as needed" into a temporary database that is used for statistical research and analysis and destroyed after the research project is complete. However, some projects rely on "live data" contained in current RCMP, CPIC and NPB databases that are accessed directly and, therefore, in respect of these projects, CSC does not create its own new database.

The respondent, a criminologist, sought access, from the appellants, to certain information related to his research, namely data ("Data"), a code book ("Code Book") to interpret the Data and software ("Software") to use the Data on a personal computer. This is how the Motions Judge described the material sought:

1. the 1992-93 CSC release cohort currently being used to recalibrate the (GSIR) [General Statistical Indicator of Recidivism] with personal identifiers deleted (such as name of inmate/parolee, FPS number, or full date-of-birth, however year of birth will not violate privacy)...
2. The Code Book used to define and identify/locate the variables in each case
3. A Copy of the Offender Intake Assessment software, including the Custody Rating Scale, the GSIR, the Community Risk/Needs Management Scale among other features.

CSC and Commissioner of Corrections denied the respondent access to the records he requested.

The Motions Judge ([2001] F.C.J. No. 434 (QL) (F.C.T.D.)) ordered that the CSC and the Commissioner of Corrections provide Mr. Yeager with the requested Data and the Code Book. No order was made with respect to the software as the Motions Judge held that software was not a record. The Motions Judge did not grant the declaratory relief sought by Mr. Yeager under para. 2b) of the Charter.

The appellants appeal from the order of the Motions Judge to release the Data and the Code Book. The respondent seeks, in his cross-appeal, a declaration that the appellants' refusal contravenes para. 2(b) of the Charter, and a review of the appellants' decision not to provide him with the software.

Decision

The appeal is allowed and the cross-appeal is dismissed. (Stone J.A. dissented regarding costs.)

Reasons

Issue 1
On the first issue, the Court held that the Data and the Code Book are both records, based on the definition of "record" in s. 3 of the Act. On the more difficult question of whether the software is a record, the Court of Appeal agrees with the Motions Judge's interpretation of s. 3 of the Act. This interpretation is that software is an item used to generate, view or edit a record, as opposed to a record itself. The software is not analogous to any of the items listed in the definition in s. 3. The Court of Appeal agrees with the lower Court that "If computer software was contemplated in the definition of a 'record' it would have been expressly mentioned" (para. 63)⁴.

Issue 2
Under subs. 4(3), a non-existent record that can be produced from an existing machine readable record is deemed to be a record to which the respondent is entitled to access. The Court rejected the appellants' argument that subs. 4(3) applies to a record that already exists in machine readable form was rejected. Since a record is expressly defined in s. 3 to include a machine readable record, then subs. 4(1) already contemplates that a machine readable record must be supplied to the respondent. To interpret subs. 4(3) to mean the same thing would violate the standard rules of statutory interpretation. The Court stresses that the plain meaning of the words in subs. 4(3) makes it clear that it applies where a record "does not exist". The Court states (para. 38):

"The only plausible interpretation of subsection 4(3) requires the appellants to produce a record that 'does not exist' in any form, machine readable or otherwise. In enacting subsection 4(3) Parliament must have contemplated two different records: a new and distinct record must be produced from an existing machine readable record."

Lastly on this issue, the Court examines the meaning of the words "from a machine readable record" in subs. 4(3). Specifically, the Court states that: "Whether a record is indeed producible 'from' a machine readable record depends upon a number of factors, including the requisite amount of independent composition as compared to purely mechanical and routine editing or manipulation" (para. 40). The Court concludes that both the Data and the Code Book can be produced from machine readable records.

Issue 3
On the third issue, the Court states that there are two limitations on the obligation to produce a non-existent record. The first limitation is contained in the wording of subs. 4(3) itself, that is that non-existent records must be produced only where they are capable of being produced "using computer hardware and software and technical expertise normally used by the government institution". The Court finds that CSC has the ability to recreate the Data, and the Code Book.

The second limitation is prescribed by s. 3 of the ATIA Regulations, the essence of which is that a record "need not be produced where the production thereof would unreasonably interfere with the operations of the institution". In relation to the sufficiency of the evidence with respect to this issue, the Court decides that the Motions Judge's conclusion that there was "no evidence" on this issue should be reviewed on a standard of correctness.

Applying this test to the Motions Judge's overall weighing of the evidence, the Court of Appeal finds that the Motions Judge ignored significant evidence in the record. More specifically, in relation to the Data, the Court of Appeal finds that the Motions Judge incorrectly assessed and weighed the affidavit evidence provided by the appellants to the effect that producing the record would unreasonably interfere with the operations of CSC. The Motions Judge's task was to examine all the evidence presented to determine whether the appellants had met the statutory burden. Instead, the Motions Judge was selective in the evidence she considered and thus overlooked other evidence which was clearly relevant. In doing so, the Motions Judge was clearly wrong.

In relation to the Code Book, the Court of Appeal similarly concludes that the affidavit evidence provided by the appellants was sufficient to determine that producing a Code Book would unreasonably interfere with the operations of CSC.

The Court agreed with the Motions Judge's conclusion that the respondent's right under the Charter had not been contravened.

With regards to costs, the Court was of the view that the issues raised in the appeal and cross-appeal involved an important new principle and that the case had enormous implications both for the government institution and for the public. Costs were therefore awarded to the respondent.

Comments

Mr. Yeager has sought leave to appeal this decision to the Supreme Court of Canada.

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