PRIVACY |
Cemerlic v. Canada (Solicitor General)
T-571-01
2003 FCT 133, Kelen J.
7/2/03
24 pp.
Judicial review of decision of Solicitor General of Canada, acting on behalf of Canadian Security Intelligence Service (CSIS), refusing applicant access to certain personal information about applicant and refusing to confirm or deny whether other personal information about applicant existed-- Applicant applied for judicial review under s. 41 of Privacy Act--Applications under s. 41 are for review of institution's decision not to disclose personal information--S. 51 sets out procedure to follow at hearing of s. 41 application--In Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3 revg in part [2000] 3 F.C. 589 (C.A.), S.C.C. stated s. 51(2)(a), providing for mandatory in camera proceedings, infringed s. 2(b) of Canadian Charter of Rights and Freedoms and not justified under s. 1 of Charter--Accordingly, hearing conducted in open court, but details of exemptions claimed by government conducted in camera and ex parte--Whether CSIS erred by refusing to disclose personal information pursuant to exemptions in ss. 19, 21, 26 and 28 of Act--In Ruby, Federal Court of Appeal noted ss. 19(2)(a) creates consent requirement--Request for access to personal information about applicant includes request to head of government institution to make reasonable efforts to seek consent of third party providing information--In present case, evidence not showing CSIS made any efforts to obtain consent to release information from third party providing information-- Accordingly, CSIS not properly applying exemption in s. 19--Regarding exemption under s. 21 (information injurious to international affairs and defence), in order to claim exemption, head of government institution must demonstrate reasonable expectation of injury--In present case, disclosure of information would provide insight into CSIS's functions and hamper CSIS's ability to carry out mandate--Respondent demonstrated information within s. 21 exemption--Regarding exemption pursuant to s. 26 (third party information), s. 8 relevant for application of s. 26--S. 8(2)(m) permits disclosure of information concerning third parties if in public interest to do so or if disclosure would clearly benefit individual to whom information relates--S. 8(2)(m) requires government institution to conduct discretionary balancing of public interest in disclosure and benefit to applicant of releasing information, against right to privacy of third parties--CSIS not conducting discretionary balancing of competing interests involved in applying exemption found in s. 26--Regarding exemption pursuant to s. 28 (medical information), two requirements must be met before government institution can apply exemption--First, information must relate to physical or mental health of individual requesting information--Second, assessment by head of government institution on whether release of information in best interests of individual--In making assessment, head of government institution authorized by s. 13(1) of Privacy Regulations, to seek opinion from duly qualified medical practitioner as to whether disclosure of information would be contrary to best interests of individual --No indication CSIS engaged in any form of analysis as to best interests of applicant--Accordingly, CSIS failed to justify use of exemption in s. 28--Whether CSIS erred in refusing to confirm or deny existence of personal information in two personal information banks--Bank 045 contains information on individuals under investigation by CSIS on suspicion involved in activities constituting threat to security of Canada--Like in Ruby (F.C.A.), revelation of existence or non-existence of information in bank 045 would disclose to individual whether target of CSIS investigation--CSIS acted reasonably in adopting uniform policy of neither confirming nor denying existence of information in bank 045--Similar conclusion applying to bank 050 containing information intended to support CSIS's counter-intelligence operations-- CSIS properly exercised discretion--CSIS erred in applying exemption in s. 19, 26 and 28 to personal information concerning applicant contained in banks 005 and 055--Matter returned to CSIS for new review of application of exemptions --Applicant, refugee from Bosnia, fearful of CSIS without justification or reasonable basis--Application allowed-- Privacy Act, R.S.C., 1985, c. P-21, ss. 8, 19, 21, 26, 28, 41, 51--Privacy Regulations, SOR/83-508, s. 13(1)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b).