[2016] 4 F.C.R. D-9
Access to Information
Consolidated applications under Access to Information Act, R.C.S., 1985, c. A-1, s. 44 (Act) pertaining to Health Canada’s decisions to release information further to specific access to information request — Applicant contesting disclosure of certain documents, as proposed by Health Canada’s Access to Information and Privacy (ATIP) Office on behalf of respondent, on basis of statutory exemptions contained in Act, ss. 17, 19(1), 20(1)(b), (c) — Events herein originating when Canadian resident (study monitor) visiting with applicant in U.S. for consultation regarding clinical outcomes of trial that applicant conducting on children having developmental disability, which study monitor’s son affected thereby — Trial involving external use of solution (treatment solution) — Study monitor bringing back treatment solution for sick son in Canada — Applicant apparently informed by Health Canada that when imported by individual for own personal use, medical devices not regulated under specific statutes, regulations — Other Canadian parents becoming involved in applicant’s clinical trial; also falling under “personal use” exemption applicable to study monitor — Website launched by study monitor in Canada to provide information to participating parents, provide opportunity to share stories — While parts of website accessible to public, some pages only accessible by password given to participating parents, applicant — Afterwards, treatment solution no longer working; some children suffering adverse reactions thereto — Health Canada launching investigation into clinical trial at issue; later receiving access to information requests one of which relating to applicant’s clinical trial in U.S.; notifying applicant thereof — Applicant objecting to release of number of records identified by Health Canada on basis records containing personal, confidential information but Health Canada claiming proposed release package disclosable since information already in public domain — Applicant bringing application for judicial review of decision at issue — As well, Health Canada identifying further records as being relevant to access to information request but applicant objecting to release thereof — When Health Canada deciding to release documents in question despite applicant’s objections, applicant filing another application for judicial review relating to decision in question — Whether records or parts thereof regarding applicant’s clinical trial as identified by Health Canada in response to access to information request exempt from disclosure pursuant to Act, ss. 17, 19(1), 20(1)(b),(c) — Regarding the s. 17 exemption pertaining to threat to personal safety, to rely on exemption, party resisting disclosure must be able to demonstrate direct link between disclosure of documents, alleged harm with detailed, convincing evidence in order to establish that outcomes reasonably probable — Based on evidence, applicant not meeting evidentiary threshold necessary to establish, on balance of probabilities, that applicant facing reasonable expectation of probable harm — Furthermore, applicant failing to make connection between identity of disgruntled parent, identity of individual making initial complaint to Health Canada or individual making access to information request — While applicant sincere in fearing for safety, not presenting evidence meeting test to establish personal safety exemption contained in Act, s. 17 — As to “personal information”, Act, s. 19(1) prohibiting disclosure of record containing “personal information” as defined in Privacy Act, R.S.C., 1985, c. P-21, s. 3 — Intent of Act, s. 19(1), incorporation of Privacy Act, s. 3 therein, interpreted to protect privacy or identity of individuals who may be mentioned in otherwise releasable material — Administrative decision maker seeking to disclose personal information pursuant to Act, s. 19(2)(b) must be able to demonstrate that information at issue accessible on ongoing basis by citizenry at large at time decision made — Respondent not showing that condition of ongoing availability of personal information to public met at time Health Canada making impugned decisions — Based on evidence, much of personal information at issue only accessible to applicant, study monitor, parents participating in clinical trial through password-protected pages on website — Even if information at issue publicly available, Health Canada’s discretionary decision to disclose information unreasonable — Clear from legislative scheme established by Act, Privacy Act that in situation involving personal information about individual, right to privacy considered paramount over right of access to information — To extent disclosure packages identifying records relevant to role Health Canada playing in enforcing laws, regulations relating to drug trials in Canada, such documents germane to request given Act’s purpose — However, insofar as disclosures including personal information relating to applicant, study monitor, parents or children participating in study, Health Canada’s decision to release records failing to account for quasi-constitutional protections afforded to personal privacy under Privacy Act — Regarding exemption in Act, s. 20(1)(b) involving confidential information, applicant objecting to disclosure thereof since containing specific, detailed technical information relating to ingredients of treatment solution, protocol used in clinical trial — Information at issue communicated primarily by applicant to Health Canada under pretenses of confidence, reasonable expectation information would not be disclosed — Based on evidence, much of information which Health Canada seeking to disclose could not be accessed by general population; thus, could not be considered in “public domain” — Information could not be said to have been easily obtained by observation or independent study by public acting alone as legal test requiring — Accordingly, Court identifying records, or parts thereof, exempt from disclosure pursuant to Act, s. 20(1)(b) — Finally, regarding applicant’s request to exempt documents pursuant to Act, s. 20(1)(c) as being prejudicial information, applicant failing to present evidence establishing requirements thereof — Third party claiming exemption thereunder must show that risk of harm considerably above mere possibility although stopping short of having to establish on balance of probabilities that harm will in fact occur — Clear, direct linkage between disclosure of specific information, harm alleged must exist — In present case, little evidence existing beyond applicant’s own affidavit evidence — Thus, no documents to be exempted on this ground — Applications allowed in part.
Martin v. Canada (Health), (T-1835-13, T-806-14, 2016 FC 796, McVeigh J., judgment dated July 12, 2016, 47 pp.)