Court strikes down secrecy in tribunals
Province ordered to make records more easily accessible to public
Denying journalists access to Ontario tribunal records is an unconstitutional “infringement” of Canada’s Charter of Rights and Freedoms that the province’s attorney general has failed to justify, a sweeping court decision prompted by a Toronto Star challenge has concluded.
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.
The province’s various administrative tribunals make decisions on everything from landlord and tenant disputes to human rights complaints.
The Star’s legal challenge sought easier and more complete access to records and documents related to their public hearings.
Tribunal hearings are usually open to the public, but some tribunals have required members of the public, including the media, to file formal freedom of information requests for access to documents related to those hearings. The Star argued that the rules of open courts should apply to the tribunals.
“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,” 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,” Morgan wrote.
Toronto Star lawyer Paul Schabas, who argued the case against the Attorney General of Ontario, called the ruling “a major victory.”
“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.”
Asenior 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 surveillance of its members and employees, exploitation of undocumented foreign workers and fraudulently obtained pension credits.
Afew 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 discrepancies 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 between10 days and more than eight months to obtain a final decision, the ruling says.
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.”
“The evidence collected by the Toronto Star and, indeed, the reported decisions by the (Information and Privacy Commissioner) … suggests that the personal information exemption is so widely invoked that it has become the rule rather than an exemption to the rule.”
Ontario Information commissioner Brian Beamish, who administers Ontario’s FIPPA law, declined to 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 deci- sion 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.
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.”
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.”
“While it is disappointing that the judge didn’t get rid of FIPPA completely …Openness, not privacy, takes primacy,” Schabas said.
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