The B.C. Freedom of Information and Privacy Assn. (“FIPA”) applied, unsuccesfully, under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 (“JRPA”) for review of a decision of the Information and Privacy Commissioner of British Columbia (“adjudicator”) withholding disclosure of stakeholder submissions concerning potential amendments to the Freedom of Information and Protection of Privacy Act (the “Act”)

28. September 2010 0

Administrative law – Decisions of administrative tribunals – Privacy commissioner – Freedom of information and protection of privacy – Disclosure – Submissions – Public bodies – Judicial review – Standard of review – Reasonableness simpliciter

B.C. Freedom of Information and Privacy Assn. v. British Columbia (Information and Privacy Commissioner), [2010] B.C.J. No. 1628, British Columbia Supreme Court, August 18, 2010, J.M. Gropper J.

The Ministry of Labour and Citizens’ Services (“Ministry”) has responsibility for the Act and all policy, standards and directives flowing from it. A Ministry branch sought stakeholder input regarding potential amendments to the Act and held consultations intermittently between 2002 and 2007. FIPA sought the disclosure of the records provided by stakeholders in this process.

In November 2006, some of the stakeholders’ submissions were released to FIPA, while others were withheld. The Insurance Corporation of British Columbia, B.C. Hydro, the Canadian Bar Association’s British Columbia Branch, the B.C. College of Physicians and Surgeons, Royal Roads University, Vancouver Coastal and Fraser Valley Health Authorities, the Provincial Health Service Authority and the B.C. Association of Municipal Chiefs of Police were the stakeholders who objected to the release of their records.

The petitioner sought review of the Ministry’s decision to withhold those submissions. The adjudicator determined the submissions were properly withheld pursuant to s. 13 of the Act, which provides that the head of a public body may refuse to disclose information that would reveal advice or recommendations developed by or for a public body or a minister.

Although the adjudicator held that the submissions could be withheld from disclosure, she also found that the Ministry did not exercise its discretion properly in terms of deciding to withhold the information. The Ministry did not provide direct evidence from the stakeholders regarding their concerns, and did not mention having considered any other factors such as the purpose of the legislation, the promotion of public confidence, the nature and sensitivity of the evidence and the passage of time.

The adjudicator confirmed the decision to withhold the information, but also required the Ministry to give the applicant access to information where stakeholders said they had no comments or opinion on the proposed amendments, and to provide both the applicant and the adjudicator with a decision with reasons including the factors considered in exercising discretion.

The Court reviewed the matter on a standard of reasonableness, using a Dunsmuir analysis, because the British Columbia Administrative Tribunals Act, S.B.C. 2004, c. 45 does not apply to the Information and Privacy Commissioner.

The Court held that the Act did not contain a privative clause or a right of appeal and was therefore a neutral factor. The purpose of the decision maker was to administer rights of access to information and records held by public bodies and to ensure public bodies complied with the Act. This factor was held to favour a deferential approach.

The nature of the question was whether s. 13 protected submissions provided by stakeholders in the public consultation process. It was not a general legal question or an issue of importance to the legal system as a whole. This factor favoured the application of a correctness standard of review.

The decision maker was held to have expertise in overseeing privacy compliance under the Act.

As such, a deferential standard of reasonableness was held to apply.

The Court held that the adjudicator’s decision was reasonable in that it met the Dunsmuir test to provide “justification, transparency and intelligibility within the decision making process.” The adjudicator had addressed the purpose of s. 13 in her decision. She also considered the applicability of s. 13.1 and submissions made by FIPA,  including the argument that submissions from stakeholders were not the subject of a confidentiality agreement. The question of whether outside stakeholders should be entitled to protection under s. 13 was dealt with by reference to the Ministry’s submissions and a brief footnoted reference. The Court did not find that the adjudicatory had given the question “short shrift”. The Court cited the decision in College of Physicians and Surgeons of British Columbia v. British Columbia (Information and Privacy Commissioner), 2001 BCSC 726 for the proposition that it does not matter who created the advice or recommendations, s. 13 could apply to advice or recommendations provided by a public body, employee or private citizen.

Although the adjudicator did not specifically address the question of whether stakeholders’ submissions in the context of voluntary public consultation made them submissions which should be excluded from the protection of s. 13.1, she did address the issue of whether the record of all undisclosed submissions was subject to disclosure. The adjudicator had considered that stakeholders’ submissions were not analogous to a public opinion poll or focus group, which would have been required to be disclosed under s. 13.2 of the Act.

Ordering disclosure of stakeholders’ submissions would tend to reveal what recommendations had been made by a particular stakeholder which were incorporated into amendments to the Act. Although the purpose of the Act is to allow access to information held by public bodies, the decision was one that was consistent with the jurisprudence, the statutory protection, and previous decisions of the Information and Privacy Commissioner.

The petition for judicial review was dismissed.

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