Supreme Court upholds Ontario's Information and Privacy Commissioner's order to disclose anonymised sex offender information

The Supreme Court has just issued its decision in the case of Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31. The case relates to a request for access to statistical information about the geographic distribution of information about individuals listed on Ontario's sex offender registry.

The requester sought information about the number of people on the list according to the first three digits of postal codes. The province had refused to provide the requester with access, citing the exemptions of the Freedom of Information and Protection of Privacy Act related to privacy and law enforcement information. The IPC found that the information was not subject to such exemptions and should be disclosed. On the ultimate appeal, the Supreme Court of Canada agreed with the Commissioner.

From the headnote:

Access to Information — Exemptions — Confidentiality provisions — Requester seeking disclosure of number of offenders registered under sex offender registry residing in areas designated by first three digits of Ontario’s postal codes — Government institution denying request on grounds of exemptions contained in Freedom of Information and Protection of Privacy Act — Information and Privacy Commission ordering disclosure — Standard of review of Commission’s decision — Whether Commission made reviewable error in interpreting applicable legislation — Whether Commission applied appropriate evidentiary standard with regards to harms‑based exemptions — Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F‑31, ss. 14, 67 — Christopher’s Law (Sex Offender Registry), 2000, S.O. 2000, c. 1, ss. 10, 13.

A requester sought disclosure from the Ministry of Community Safety and Correctional Services of the number of offenders registered under its sex offender registry residing within the areas designated by the first three digits of Ontario’s postal codes. The registry is established and maintained under Christopher’s Law (Sex Offender Registry), 2000. The information contained in the Registry is kept confidential by the Ministry and police. The Ministry refused to disclose, citing law enforcement and personal privacy exemptions in the Freedom of Information and Protection of Privacy Act. The Information and Privacy Commissioner held that the exemptions do not apply and ordered disclosure. The Commissioner’s decision was upheld on judicial review and on appeal.

Held: The appeal should be dismissed.

The Commissioner made no reviewable error in ordering disclosure. The applicable standard of review is reasonableness. The Commissioner was required to interpret Christopher’s Law for the narrow purpose of determining whether it contained a confidentiality provision that prevails over the Freedom of Information and Protection of Privacy Act. This task was intimately connected to her core functions. The Commissioner reasonably concluded that the Ministry did not provide sufficient evidence that disclosure could lead to the identification of offenders or of the risks of the harms that the exemptions seek to prevent.

The Commissioner did not grant a right of access that is inconsistent with either Act. Section 67(2) of the Freedom of Information and Protection of Privacy Act does not specifically provide that a confidentiality provision in Christopher’s Law prevails and, although s. 10 of Christopher’s Law is a confidentiality provision, neither it nor any other part of Christopher’s Law prevails over the Freedom of Information and Protection of Privacy Act. Explicit references to Freedom of Information and Protection of Privacy Act in Christopher’s Law indicate that the Legislature considered the manner in which both statutes operate together. Had the Legislature intended the confidentiality provision in Christopher’s Law to prevail, it would have included specific language to that effect. Neither s. 13 of Christopher’s Law nor Christopher’s Law working together with the Police Services Act, R.S.O. 1990, c. P.15, ousts the application of the Freedom of Information and Protection of Privacy Act. The Commissioner did not take too narrow a view of the law enforcement exemptions under s. 14(1)(e) and (l) of the Freedom of Information and Protection of Privacy Act. Based on the evidence and arguments before her, she properly focused on the reasonableness of any expectation that the requested disclosure would lead to the identification of sex offenders or their home addresses. Because the law enforcement exemptions do not apply, the discretion not to disclose a record under s. 14 of the Freedom of Information and Protection of Privacy does not apply.

The Commissioner made no reviewable error with respect to the standard of proof applicable to the law enforcement exemptions. There is no difference in substance between “a reasonable expectation of probable harm” and a “reasonable basis for believing” that harm will occur. The “reasonable expectation of probable harm” formulation simply captures the need to demonstrate that disclosure will result in a risk of harm that is well beyond the merely possible or speculative, but also that it need not be proved on the balance of probabilities that disclosure will in fact result in such harm. The “reasonable expectation of probable harm” formulation should be used wherever the phrase “could reasonably be expected to” is used. The Commissioner reasonably concluded that the Ministry did not prove that the Record could be used to identify sex offenders or that it will ignite among sex offenders a subjective fear of being identified that will lead to lower compliance rates with Christopher’s Law.