PRIVACY |
Ruby v. Canada (Solicitor General)
T-638-91
2004 FC 595, von Finckenstein J.
29/4/04
23 pp.
Rehearing of judicial review of refusal by Department of External Affairs (DEA, now Department of Foreign Affairs) and Canadian Security and Intelligence Service (CSIS) to disclose personal information about applicant allegedly held in their personal information banks (Banks 40, 10 and 15 respectively)--Applicant requested information in March and June, 1988--Pursuant to Privacy Act, s. 16, DEA, CSIS refused to confirm, deny information held about applicant in Banks 40 and 10, and if information existed, claimed exempt from disclosure pursuant to s. 22(1)(a)--CSIS did provide applicant 42 pages of information about applicant relating to older, less sensitive investigations, held in Bank 15, but withheld rest pursuant to ss. 19, 21, 22(1)(a)(iii), 22(1)(b), 26--Applicant's judicial review of exceptions dismissed by F.C. ([1998] 2 F.C. 351) on basis exemptions validly claimed--F.C.A. ([2000] 3 F.C. 589) referred files back for redetermination--S.C.C. ([2002] 4 S.C.R. 3) reversed F.C.A. decision, upheld F.C. decision in respect of s. 22(1)(b)-- Standard of review reasonableness, burden of proof on party invoking exemption--(1) Whether exemption purusant to s. 22(1)(a) with respect to Bank 40 properly invoked, applied --Test twofold--(i) Whether reasonable for head of DEA to conclude information fell within s. 22(1)(a)--DEA policy not to disclose whether or not information about an applicant contained in Bank 40--Given nature of information in Bank 40, sources from which information obtained, logic of DEA's policy, reasonable for head of DEA to invoke exemption--(ii) Whether DEA's exercise of discretion proper given circumstances of case--Court considered whether information comes from investigative body specified in regulations, whether it meets three criteria of s. 22(1)(a), and the age of information (i.e. must not review decision from today's perspective)--Conditions for invoking s. 22(1)(a) met, discretion exercised properly by DEA head--(2) Whether exemption pursuant to s. 19 with respect to Banks 10, 15 properly invoked, applied--S. 19 requiring disclosure of information obtained from other government be refused unless consent from that government obtained--Affidavit evidence establishing reasonable efforts made to seek consent of third party governments or institutions of foreign states who provided requested information--In any event, other grounds of exemption sought applicable--(3) Whether exemption pursuant to s. 26 with respect to Banks 10, 15 properly invoked, applied--Ss. 26, 8 prohibiting disclosure of information relating to third party unless third party consenting to disclosure or disclosure otherwise justified, such as where public interest in disclosure clearly outweighs invasion of privacy (s. 8(2)(m)(i))--Given sensitivity of information in Bank 10 (relating to current investigations), public interest in disclosure not outweighing invasion of privacy (in sense of general, broadly conceived policy goal)-- In relation to Bank 15, public affidavits set out why balance of information not disclosed, e.g. would reveal identities of sources, targets of investigations, procedures)--Court also considered supplementary secret affidavit providing copies of all Bank 15 documents not disclosed--On basis of affidavits, information excised from pages released, and information not disclosed, of such nature that cannot be said public interest in disclosure outweighs any invasion of privacy--Application dismissed--Privacy Act, R.S.C., 1985, ss. 8 (as am. by R.S.C., 1985 (2nd Supp.), c. 20, s. 13; (3rd Supp.), c. l, s. 12(5)), 16, 19, 21, 22(1)(a),(b), 26.