Two individuals applied to the Court for review of decisions of the Information and Privacy Commissioner which refused to accept their information requests. The Court decided, as a preliminary matter, that it had jurisdiction to review the decisions of the Commissioner, as his role was not such as to bring him within the sphere of legislative or parliamentary privilege.

Administrative law – Decisions of administrative tribunals – Privacy commissioner – Parliamentary privilege – Freedom of information and protection of privacy – Disclosure – Production of records – Judicial review – Jurisdiction

McBreairty v Newfoundland and Labrador (Information and Privacy Commissioner), [2008] N.J. No. 229, Newfoundland and Labrador Supreme Court – Trial Division, February 6, 2008, A.C. Seaborn J.

The Applicants had been involved in a dispute with the College of the North Atlantic concerning various matters arising from their employment with the College. Between January 17, 2005 and August 22, 2007, the Applicants made 55 applications to the Information and Privacy Commissioner for the Province of Newfoundland and Labrador, primarily seeking review by the Commissioner of decisions received by the Applicants from the College concerning access to records requests made by the Applicants to the College. By letter dated August 22, 2007, the Commissioner wrote the Applicants, advising that, because of the excessively high number of files they had placed with his office, the office would not accept any further requests from the Applicants until all of the 26 active files already accepted from them had been closed. The Applicants applied for judicial review of the Commissioners decision, seeking remedies in the nature of certiorari and mandamus.

The Court considered the preliminary issue as to whether it had jurisdiction to review the Commissioner’s decision not to accept any further requests for review from the Applicants until all their current files had been dealt with. The Commissioner argued that the privileges of the House of Assembly of the Province of Newfoundland and Labrador extended to the Commissioner and his decision, and the decision was therefore not reviewable by the Court. The Applicants argued that there is a mandatory requirement under the Act for the Commissioner to conduct a review upon request, that legislative or parliamentary privilege is not applicable to the Commissioner, and his decision was therefore reviewable by the Court.

The Court first considered the issue of whether the Commissioner was required, under the Act, to review a decision of a public body when a request for review is received. The Court considered s. 46 of the Access to Information and Protection of Privacy Act, S.N.L. 2002, c. A-1.1 and found that such a review is mandatory, unless the request for same is resolved informally. Considering the words of sub-section 46(2) in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act, whether the Commissioner attempts an informal resolution of a request for review or not, the Commissioner is mandatorily required, upon receipt of a request for review, to review the decision of the head of the public body and complete a report, unless the report for review is informally resolved within 30 days of its receipt.

The Court next considered whether legislative privilege attaches to the Commissioner and the decision contained in his letter. The Court concluded that the Commissioner’s role was not such as to bring it within the sphere of legislative or parliamentary privilege. The Commissioner’s role in providing an independent review of decisions made by public bodies on requests for access to records is not one that impacts the discharge of the functions of the House of Assembly. The activities of the Commissioner as it relates to requests for review can be dealt with by the ordinary laws of the land, i.e., the remedies, if appropriate, of certiorari and/or mandamus, without interfering with the legislature’s ability to fulfill its constitutional functions.

In the result, the Court concluded that it had jurisdiction to review the Commissioner’s decision.

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