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InfoSource Bulletin 2003 - Privacy Act and Access to Information Act
Salvatore Fuda v. Royal Canadian Mounted Police and
Solicitor General of Canada
Indexed as: Fuda v. Canada (Royal Canadian Mounted Police)
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File No.: |
T-1185-01 |
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References: |
2003 FCT 234; [2003] F.C.J. No. 314 (QL)(F.C.T.D.) |
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Date of decision: |
February 24, 2003 |
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Before: |
Tremblay-Lamer J. |
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Section(s) of ATIA/PA: |
Ss.16(2), 18, 22(1)(a), 47 Privacy Act (PA) |
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Abstract
- Personal information obtained by investigative body
- Exempt banks
- Exercise of discretion under para. 22(1)(a)
- Refusal to confirm or deny
Issues
Did the RCMP properly exercised its discretion under para. 22(1)(a) PA?
Did the RCMP's decision to neither deny nor confirm the existence of personal information comply with the PA?
Facts
The applicant is the chairman of Ontex Resources Ltd., a public limited liability company. The company's application to be listed on the Toronto Stock Exchange was refused, allegedly because the applicant was involved in organized crime. The applicant made a request to the RCMP, under the PA, for access to all information about him or the companies with which he was associated. Two personal information banks were searched: PPU 005 (Operational Case Records) and exempt bank PPU 015 (Criminal Operational Intelligence Records). The RCMP refused to disclose the information contained in bank PPU 005 primarily on the basis of para. 22(1)(a). It neither confirmed nor denied whether any personal information relating to the applicant existed in information bank PPU 015 and was advised that if such information existed, it would be exempt from disclosure pursuant to para. 22(1)(a).
The applicant argues that, since he has not seen the documents in question there is a higher onus on the RCMP to show that it properly exercised its discretion under para. 22(1)(a).
Decision
The application for judicial review was dismissed.
Reasons
The inability of the applicant or his counsel to see the exempt information does not place a higher onus on the RCMP to justify its decision. Any improper exercise of discretion is resolved by the Court's ability to scrutinize the government institution's actions. The lawfulness of this exercise of discretion is reviewed on a standard of reasonableness; it is not for the Court to substitute its own view.
In the case at bar, the Court was satisfied that the applicant's personal information fell within the description of para. 22(1)(a): the information was less than 20 years old and was obtained by the RCMP during lawful investigations of the applicant in organized crime. It was reasonable for the respondent to refuse to disclose this information; the discretion was exercised for a reason rationally connected to the purpose for which it was granted.
Relying on Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (C.A.)5 at para. 49, the Court found that the respondent's decision to neither confirm nor deny the existence of personal information about the applicant in the exempt personal information bank PPU 015 complied with the PA. The information in that bank is exempt because sensitive investigations would be jeopardized if the individuals or organizations involved were able to ascertain what was already known or not know about them, the methods of operations used, the extent of coverage and the sources of reporting their activities. The Court added that if any information were to exist, it would be reasonably expected to be exempted under para. 22(1)(a).
