A privacy commissioner adjudicator ordered the Calgary Police Service to stop disclosing more information than was necessary when providing collision reports to members of the public who had been involved in traffic accidents. On judicial review, the Police Service was unsuccessful in having the adjudicator’s decision quashed.

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

Calgary (City) Police Service v. Alberta (Information and Privacy Commissioner), [2014] A.J. No. 1470, 2014 ABQB 791, Alberta Court of Queen’s Bench, December 23, 2014, S.L Hunt McDonald J

Alberta police officers provide collision reports to members of the public who have been involved in traffic accidents as a matter of routine. The collision reporting form includes personal information such as names and addresses of the drivers involved in the accident. An individual involved in a traffic accident complained to the Information and Privacy commissioner that her personal information had been disclosed following an alleged road-rage hit and run incident in which she feared for her personal safety. She argued that disclosing her personal information in the collision report to the other driver contravened the Freedom of Information and Protection of Privacy Act.

The adjudicator decided that although the disclosure of the personal information may be authorized under the Act, the Act did not require disclosure of the entire collision report to anyone. Rather, a public body must disclose only the information necessary to fulfill its purpose in disclosing the information authorized by the enactment. The adjudicator’s decision effectively required police officers to ensure that they were disclosing only necessary personal information to satisfy the purposes of the disclosure of information which included monitoring drivers and the safe operation of motor vehicles in the province. The Calgary Police Service argued that this required police officers to determine what minimum amount of information in a collision report would be required in each individual case and then personally edit the prescribed form. The Calgary Police Service argued that this was not reasonable.

The court first considered whether the commissioner had standing in these judicial review proceedings, given that it was not a party to the original proceedings but had performed an adjudicative function. The commissioner was entitled to notice of the judicial review proceeding, but a question arose as to whether the commissioner could make submissions on the evidence on judicial review or whether those submissions could extend to the correctness or reasonableness of its own decision. In Leon’s Furniture Ltd. v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94, the majority of the Court of Appeal stated that it was important for the tribunal to remain neutral in situations where is was adjudicating over a dispute between two adversarial parties. Whether a tribunal should be allowed to participate in judicial review would require a balancing of considerations and an acknowledgement of the variety of roles and responsibilities of the tribunal. Ultimately the commissioner was permitted to make submissions explaining the record and matters going to jurisdiction, issues defending the reasonableness of the decision, drawing the attention of the court to considerations in terms of specialized jurisdiction and expertise of the tribunal, and issues to ensure that the court could make a fully informed decision, as well as issues of jurisdiction. The commissioner was asked not to supplement the adjudicator’s decision or to provide any fresh justification for it.

The reasonableness standard was held to apply to the adjudicator’s decision. The applicant, Calgary Police Service, bore the burden of proof to establish that the adjudicator’s decision was unreasonable. The adjudicator’s decision was found to provide a reasonable justification for her order and the reasoning was found to be transparent and intelligible. The court noted that there may have been other ways to address privacy concerns arising out of collision reports, but declined to quash the adjudicator’s decision. The privacy commissioner was therefore successful on judicial review and no costs were awarded.

To stay current with the new case law and emerging legal issues in this area, subscribe here.