The Winter 2007 edition of the Ontario Information and Privacy Commissioner's Perspectives was just released. It includes a look at some of the major projects relating to privacy or freedom of information that her office has been working on.
The newsletter also contains reviews of recent significant orders issued under the Freedom of Information and Protection of Privacy Act, the Municipal Freedom of Information and Protection of Privacy Act, or the Personal Health Information Protection Act, information about recent IPC publications, upcoming presentations and more.
In respect of Dr. Cavoukian's summary of significant developments; what she has avoided is of more moment than what she has included. Specifically, in Reynolds v Binstock, file 485/04, date 2006-10-30, the Divisional Court unanimously found for the Commissioner's argument that her privacy function, unlike her access function, is cloaked by parliamentary privilege. Privacy vis-à-vis the provincial jurisdiction is now a right without a remedy.
ReplyDeleteSignificantly, this case and a companion case, David v. Binstock, were the first judicial reviews of privacy in Ontario. Both cases related to the Commissioner’s decisions to dismiss privacy complaints against the City of Toronto and Justice Coulter Osborne arising from his review of the botched Union Station redevelopment procurement.
It is interesting to note what the court did not discuss in arriving at is decision: there was no discussion of the purposes of the Act; there was no discussion of the judicial review of P-237, John Doe v Information and Privacy Commissioner (Ontario); while the court referred to a minor issue in Ontario (Solicitor General) v Ontario (Information and Privacy Commission) (2001) at para 30, it did not discuss the more substantive issues addressed in paras 32, 38 and 39; and it did not discuss the Supreme Court decisions in Canada (House of Commons) v Vaid [2005] or Re Rizzo & Rizzo [1998]. Arguments on these issues were made by the applicants
In a third case heard by the same panel, David v Toronto & Osborne, file 24/05, date 2006-10-30, the court, again unanimously, found that in conducting his review of the Union Station procurement, Coulter Osborne was acting as an "independent contractor" and, notwithstanding he was acting on Toronto's behalf, was not bound by the provisions of the Municipal Freedom of Information and Protection of Privacy Act. His removal of the records of his review from the office provided him by Toronto consequently did not offend the Act. By implication his exclusion applied to Toronto as its destruction of electronic copies of the records and its publication of personal information in a public meeting of council, in hard copy and on the Internet also did not offend the Act.
These two decisions, made in line with the Commissioner's argument, have rendered privacy in the Ontario jurisdiction nugatory and introduced a major loop-hole in access law. It is curious that Dr. Cavoukian is not trumpeting her success. She seems far from reticent regarding publicity for her other activities
Ann Cavoukian's 2006 annual report describes Reynolds and David as "landmark" decisions but she does not inform the Legislature of significant findings. For instance, the court found in 485/04 at paras. 25, 27, 30 that Dr. Cavoukian has "no tribunal role" over privacy provisions or statutory powers of decision. The Court also found that Dr. Cavoukian's "reports resemble reasons for judgment" and that she may have "created false expectations...[28]
ReplyDeleteI found PDF copies of Ann Cavoukian's factums in 485/04, 494/04 and 24/05 at www.ritareynolds.ca. It was surprising to read her argument in 485/04 that individuals have no right to complain [para. 24] that she has no duty to investigate complaints [90] and that her order making power under s.46(b) of MFIPPA is not a tribunal function [37].
The court's decision in 24/05 will fortify arguments that institutions have the power to contract out of access and privacy legislation i.e. MFIPPA does not override municipal power to "engage in business with a person without insisting on control of information generated by performance of the task contracted for." [para 34] Perhaps the most far reaching finding is that the Act's purpose does not preclude "those who are not institutions" from collecting information "for their own purposes even though they are engaged in completing a contract with the City to supply their services to it."[para 26]
The decisions make it clear that Ontario citizens do not have enforceable privacy rights. The court's decision in 24/05 provides a roadmap for contracting out of freedom of information.