ARCHIVED - Info Source Bulletin Number 29

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Elvio Del Zotto and Solicitor General of Canada

Indexed as: Del Zotto v. Canada (Solicitor General)

File No.:	T-2209-00
Reference:	2005 FC 216 [aff'd 2005 FCA 349–see "Comments"]
Date of decision:	February 10, 2005
Before:	Campbell J.
Sections of ATIA / PA:	Ss. 16(2), 22(1)(a)(i), 41, 46 Privacy Act

Abstract

Government institutions need not apply a consistent practice respecting the application of subs. 16(2) Privacy Act

Issues

1. Was the discretion under subs. 16(2) properly exercised?
2. Must the RCMP apply a consistent practice respecting the application of subs. 16(2)?

Facts

The applicant sought disclosure of any personal information respecting his activities that the RCMP might have, without regard to where that information might be situated. The RCMP contacted applicant's counsel to advise that the request would be processed under the Privacy Act. It was agreed that the scope of the request be narrowed down to include specific locations.

The RCMP subsequently advised the applicant that the request had been processed and that the RCMP could not confirm nor deny the existence of the information requested, but that if it did exist it would be exempt in its entirety under subpara. 22(1)(a)(i) of the Privacy Act.

The applicant complained to the Privacy Commissioner. The RCMP conducted a second review but reconfirmed its previous conclusion. After conducting his review, the Privacy Commissioner informed the applicant that the RCMP had properly exercised its discretion under subs. 16(2) not to disclose and that it had correctly asserted that if the information requested did exist it would be exempt pursuant to subpara. 22(1)(a)(i).

The applicant then sought judicial review pursuant to s. 41 of the Privacy Act.

Decision

The application was dismissed.

Reasons

Issue 1

In answering this question, the Court was mindful of s. 46 of the Privacy Act which requires the taking of every reasonable precaution to avoid disclosure, particularly where subs. 16(2) is invoked. The Court also noted the opinion of the Federal Court of Appeal stated in Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 at para. 39:

It is the Court's function on an application for review under section 41 of the Act to ensure that the discretion given to the administrative authorities "has been exercised within proper limits and on proper principles." [Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.) at p. 276.] This is why the reviewing Court is given access to the material in issue by section 45 of the Act. In our view, an applicant who, pursuant to section 41 of the Act, applies for judicial review of an institution's refusal to disclose the personal information requested, by definition, questions the validity of the exercise of discretion by that institution and nothing more is required from him or her. In such circumstances, this is the best an applicant can do. This is the most an applicant should be held to.

As a result, given the parties' arguments, the Court was satisfied that the discretion under subs. 16(2) had been exercised within proper limits and on proper principles.

Issue 2

The applicant raised the point that there was evidence on the record to establish that the RCMP does not apply a consistent practice respecting the application of subs. 16(2) with respect to its Data Bank 005. The applicant submitted that the RCMP must apply a consistent practice, relying on Ruby, supra, at paras. 49 and 66. The Court disagreed with the applicant that the dicta quoted in paras. 49 and 66 established the obligation for which the applicant argued. The Court accepted the respondent's argument that, to apply an inconsistent practice respecting the application of subs. 16(2) equally effects the purpose of the use of subs. 16(2) which is to safeguard against the threat of disclosure of the contents of information banks.

Comments

The decision of the Federal Court was affirmed on appeal (2005 FCA 349, reasons for judgement dated October 26, 2005, A-111-05). The Federal Court of Appeal found no error in the conclusion of Campbell J. that the decision of the RCMP based on subs. 16(2) of the Privacy Act had been properly made.

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