Court finds tribunal secrecy unconstitutional in response to Star challenge
|Toronto Star 27 Apr 2018 at 19:57|
Ontario Superior Court Justice Edward M. Morgan declared as “invalid” provisions of Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) that delay or block public access to tribunal records, and gave the province a year to consider how to make its tribunal system more open and accessible to journalists and the public.
“In fashioning a regime that prohibits the disclosure of ‘personal information’ unless the press can establish its justification, FIPPA has it the wrong way around,” Justice Morgan concluded. “Emphasizing privacy over openness not only has a negative impact on the press … Problematic landlords, police, and other actors, including repeat human rights offenders, vexatious litigants and the like cannot be discovered by members of the public who have to engage with them.”
“In fashioning a regime that prohibits the disclosure of ‘personal information’ unless the press can establish its justification, FIPPA has it the wrong way around,” Ontario Superior Court Justice Edward Morgan said. (Ontario Superior Court)
“The court confirms that these tribunals are not just agents of government, but courts, and need to operate openly, like courts,” he said. “This decision will have broad ramifications for all judicial tribunals.”
The attorney general’s office said Friday that the government “always strives to find the right balance between openness and protecting the privacy of its citizens. … As the matter is still in the appeal period it would be inappropriate to comment further.”
A senior source in the ministry told the Star late Friday that the attorney general is “very unlikely” to appeal the decision but will be taking more time to review it.
The Star’s constitutional challenge was prompted by a 2014 case when reporters requested — and obtained — records from the Ontario Labour Relations Board hearings involving the Labourer’s International Union of North America (Local 183) that detailed unproven allegations of high public interest: union links to organized crime, secret surveiallance of its members and employees, exploitation of undocumented foreign workers and fraudulently obtained pension credits.
A few weeks after releasing the records to the Star, the OLRB contacted the newspaper to say the records “may have been released in error and that the Board had inadvertently disclosed personal information that is presumed to constitute an unjustified invasion of personal privacy.”
The OLRB told the Star it should “return and not use any of the information released.”
The Star refused. It’s appeal of that decision to the Information and Privacy Commissioner was later dropped and replaced with a broad-based constitutional challenge to the use of FIPPA by Ontario tribunals.
The newspaper’s submissions argued there are vast discrepencies in the way individual tribunals in Ontario release records to journalists and the public.
Some tribunals post many of their records online for easy access. For example, the Ontario Securities Commission, Ontario Municipal Board and Financial Services Tribunal post docket lists and decisions on their websites and allow public access to hearing records (sometimes anonymized) without requiring any FIPPA request.
But many others require journalists and the public to file formal freedom of information requests that can take weeks or months to process, often with large fees that render the documents financially inaccessible or worthless.
“Newsgathering inherently requires timeliness,” Morgan wrote. “Any newspaper reader would find it difficult to refute this observation … Just as justice delayed can be justice denied, so reportage delayed can be reportage denied.”
Examples of FOI requests filed by Star reporters to a range of other Ontario tribunals — contained in the Star’s submissions — showed delays of between 10 days and more than eight months to obtain a final decision, the ruling says.
Investigative reporter Robert Cribb reveals the story behind the court decision today which will ensure the Ontario Labour Relations Board is a more open, accountable and timely system for the public and journalists.
Morgan identified one provision of FIPPA in particular as being “a serious obstacle to disclosure” and “so broad as to swallow up the initial mandate to disclose records.”
Ontario Information commissioner Brian Beamish, who administers Ontario s FIPPA law, declined comment Friday, saying he needed more time to review the ruling.
The existence of personal information in records has been used by the Human Rights Tribunal of Ontario, the Landlord and Tenant Board and other tribunals to refuse “most if not all requests for production of records,” Morgan’s decision reads.
The attorney general argued there is no evidence that those delays hampered the reporting on those cases. The Star countered that the newsworthiness of many of these cases had been lost by the time documents were obtained.
In his ruling, Morgan ruled that some sections of the FIPPA law significantly frustrate access, defeat the public’s right to know and “would not survive a charter analysis.”
The ruling also rejected arguments of the attorney general’s office that Ontarians who wish to come before tribunals — tenants, human rights complainants, employers and others — would be dissuaded by the possibility their identities would be disclosed.
Morgan did not go as far as scrapping the freedom of information requirements used by some tribunals. But he told the legislature it needs to “revamp” the process to make it “charter compliant” based on a “presumption of openness rather than a presumption of confidentiality.”
Schabas said the ruling effectively establishes open courts rules in which records are presumptively open and there is a strong onus on the part of tribunals to justify any limits on that transparency.
“While it is disappointing that the judge didn’t get rid of FIPPA completely from the process, the reality is that this decision tells any tribunals that may wish to continue to follow that process that their practices must change,” he said. “Openness, not privacy, takes primacy … This is what we wanted.”