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Info Source Bulletin Number 28
Keith Maydak v. Solicitor General of Canada
Indexed as: Maydak v. Canada (Solicitor General)
| File No.: | T-73-04 |
| Reference: | 2004 FC 1171 |
| Date of decision: | August 24, 2004 |
| Before: | Rouleau J. |
| Sections of ATIA / PA: | Ss. 9(1), 22(1)(a), (b), 26 Privacy Act (PA) |
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Abstract
- Meaning of "investigation"
- Institution cannot withhold entire page when only a portion thereof exempt from disclosure
Issue
Were the actions taken by the RCMP an "investigation" pursuant to para. 22(1)(a) of the Privacy Act?
Facts
The applicant made a request to the RCMP, under the Privacy Act, for all personal information relating to documents held by the RCMP as well as by Interpol Ottawa about his extradition to the United States to prosecute a violation of supervised released stemming from a fraud conviction.
The RCMP responded to the request by providing some of the information while withholding other information pursuant to para. 22(1)(a). The applicant was also advised that paras. 19(1)(a), (b) and (c), 22(1)(b) and s. 26 of the Privacy Act could also apply.
The applicant complained to the Privacy Commissioner who found that the complaint was not well-founded. More specifically, the latter found that para. 22(1)(a)[5] exempted the requested information from disclosure on the grounds that:
The RCMP need only demonstrate that the information at issue is less than 20 years old and that it was prepared or obtained in the course of a lawful investigation by an investigative body. The RCMP is indeed an investigative body for the purposes of the Act and, in my view, all of the other requirements of this provision have been met as well. Therefore, I am satisfied that the RCMP had the legal authority to invoke this exemption at the time it was claimed.
The Commissioner did not comment on the validity of paras. 19(1)(a), 19(1)(b), 19(1)(c), 22(1)(b) and 26 of the Privacy Act as he was of the view that para. 22(1)(a)justified by itself the decision to withhold the requested information.
Decision
The application is allowed.
Reasons
The facts clearly showed that the RCMP simply received information from the Department of Justice to the effect that the United States, upon an extradition request, sought the applicant for a supervised release violation. The only actions taken involved placing, and subsequently removing, the applicant's name from the CPIC, a Canadian police database, and communicating by e-mail with the Department of Justice relating to the status of the extradition proceedings. This type of activity does not constitute an investigation within the meaning of the statute exempting the information from disclosure. While there may be cases where the RCMP did conduct an investigation to assist an extradition proceeding, it appears clear that the RCMP Interpol did not do so in this case. In fact, it appears to have taken no investigatory actions.
As a result, Rouleau J. found that Privacy Commissioner had made an error in concluding that the information requested by the applicant fell within the exemption contained in para. 22(1)(a) of the Privacy Act, which error warranted the Court's intervention.
Since the decision under review was solely based on the para. 22(1)(a) exemption, it was not for the Court to consider the applicability of the other exemptions contained in the Privacy Act to the case at bar. Nonetheless, having reviewed the confidential documents, Rouleau J. took the view that none of the other exemptions alleged by the respondent seemed applicable.
Among the withheld documents, the only one that seemed remotely relevant to the possible application of an exemption was a letter from the FBI to the RCMP which contained the name of a third party. Since the Privacy Act deals with "information," not "documents," an agency may not withhold the entire page simply because a portion may be exempt. Thus, this document was to be communicated to the applicant once the opening paragraph of the letter had been redacted.
Comments
The RCMP's appeal has been allowed: 2005 FCA 186.
