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Info Source Bulletin Number 28

Clayton Ruby v. Solicitor General of Canada

Indexed as: Ruby v. Canada (Solicitor General)

File No.:	T-638-91
Reference:	2004 FC 595
Date of decision:	April 20, 2004
Before:	von Finckenstein J.
Sections of ATIA / PA:	*Ss.8(2)(m)(i), 16, 19, 21, 22(1)(a), 26, 41, 47, 52(2) Privacy Act* (PA)**

Abstract

Standard of review (reasonableness) and burden of proof on government institutions
Determination of whether exemption properly applied a two-step process
Discretion to be exercised at time of decision
Reasonable efforts to seek consent of foreign government
No public interest in disclosure clearly outweighing privacy in broad sense of term

Issues

What is the standard of review with respect to the exemptions claimed and what is the burden of proof?
Was the exemption claimed pursuant to s. 22(1)(a) with respect to bank 040 of the DEA properly applied?
Was the exemption claimed pursuant to s. 19 with respect to banks 010 and 015 of CSIS properly applied?
Was the exemption claimed pursuant to s. 26 with respect to banks 010 and 015 of CSIS properly claimed?

Facts

In June 1988, the applicant requested that the Department of External Affairs (DEA) provide him with his information held in bank 040, which bank contains personal information about certain individuals disclosed to DEA by federal bodies about their ongoing investigations. DEA refused to disclose that information on the basis of ss. 16(2) and 22(1)(a) PA. Prior to that, the applicant had sought information contained in two banks held by the Canadian Security Intelligence Service (CSIS): bank 010 which relates to CSIS' most current and sensitive investigations and bank 015 which relates to its older and less sensitive investigations. CSIS refused to disclose the information with respect to bank 010 on the basis of ss. 16(2) and 22(1)(a) and refused to disclose part of bank 15 on the basis of ss. 19, 21, 22(1)(a)(iii), 22(1)(b) and 26 PA.

The applicant sought judicial review of the refusals to disclose. The Trial Division ([1998] 2 F.C. 351 (T.D.)) rejected the applications on the ground that the exemptions had validly been claimed by the DEA and CSIS. On appeal, the FCA was not satisfied that the trial judge had "gone to the second step of reviewing the exercise of discretion" by DEA and CSIS ([2000] 3 F.C. 589 (C.A.)). It therefore referred the matter back to the Trial Division for a new determination of whether the exemptions with respect to banks 010 and 015 were properly applied by CSIS, and whether the DEA properly applied the exemptions it claimed with respect to bank 040. Parallel decisions on the constitutional validity of s. 51(2)(a) and 51(3) PA and on s. 22(1)(b) PA were appealed to the Supreme Court of Canada ([2002] 4 S.C.R. 3). The SCC restored the ruling of the FCTD to the effect that CSIS was authorized to refuse to disclose on the basis of s. 22(1)(b) with the result that this exemption is not an issue here.

Decision

The application is denied.

Reasons

Issue 1 – Standard of review and burden of proof

The motions judge reiterated with approval the ruling of the FCA to the effect that s. 47 of the PA puts on the head of the institution both the burden of proving that the conditions of the exemptions are met and that the discretion conferred on the head of a government institution was properly exercised. The judge found that the appropriate standard of review is reasonableness and that the burden of proof is on the party invoking an exemption to justify its actions when faced with a request for disclosure.

The determination whether a discretionary exemption has been properly invoked involve a two-stage process. The first question that needs to be answered is whether it was reasonable for the head to conclude that the information fell within the exemptions invoked. The second question is whether the head properly exercised his discretion given all the circumstances of the case.

Issue 2 – S. 22(1)(a) PA

Given the nature of the information contained in bank 040, the sources from which such information is obtained and the compelling logic of the DEA's consistent policy to refuse to disclose whether information is contained in that bank, the Court found that it was reasonable for the head of the DEA to invoke the exemption set out in s. 22(1)(a).

In reviewing the exercise of the discretion (the second stage of the process), the Court considered

Whether the information came from an investigative body specified in the regulations;
Whether it meets the three criteria set out in clauses (i) to (iii) of s. 22(1)(a) and
The age of the information.

After reviewing the evidence put forward by the DEA, the Court concluded that nothing in the evidence indicated that the three criteria had not been met. With respect to the age of the information, it ruled that the head can only exercise his discretion on the facts and circumstances that are known to him as of the date he makes his decision.

Issue 3 – S. 19 PA

The Court of Appeal had interpreted subs. 19(2) of the PA as requiring the trial judge to ensure that CSIS had made reasonable efforts to seek the consent of the other government who provided the information. The Court reviewed the public affidavits of CSIS to the effect that some of the information contained in bank 015 was obtained in confidence from the government or institutions of a foreign states and that these bodies were consulted in a manner consistent with established protocols but had refused disclosure. The Court also reviewed a confidential affidavit which confirmed the names of the bodies in question and set out the nature of the consultations which occurred. On that basis, the Court was satisfied that reasonable efforts had been made to seek consent.

Issue 4 – S. 26 PA

Ss. 26 and 8 of the PA prohibit the disclosure of personal information relating to a third party unless that party consents to the disclosure or such disclosure is otherwise justified under subs. 8(2) of the PA.

The Court of Appeal found that s. 26 and s. 8(2)(m)(i) require the head of a government institution to engage in a discretionary balancing of the public interest and privacy. Given the sensitivity of the information contained in bank 010, which sensitivity was not questioned by the trial judge nor by the Court of Appeal, the Court herein held that it would be illogical if not perverse to conclude that the public interest in disclosure clearly outweighed any invasion of privacy (in the sense of a general, broadly conceived policy goal). With respect to bank 015, the Court came to the conclusion that the public interest in disclosure did not clearly outweigh the privacy interests (in the sense of the general, broadly conceived policy goal). The Court based this conclusion on the respondent's secret affidavit, which included statements of correlation between the documents not disclosed and the injury anticipated if disclosure of the documents occurred as well as an explanation as to why the information was exempt from disclosure.