Judgments

Decision Information

Ternette v. Canada (Solicitor General) (T.D.)

Collection Judgments
Date 1991-11-22
Report citation [1992] 2 F.C. 75
File numbers T-522-84
Subjects Privacy

Decision Content

T-522-84
Nick Ternette (Applicant)
v.
The Solicitor General of Canada (Respondent)
and
The Privacy Commissioner (Intervenor)
INDEXED AS: TERNE7TE V. CANADA (SOLICITOR GENERAL)
(TD.)
Trial Division, MacKay J.—Ottawa, September 4, 1990 and November 22, 1991.
Privacy — Privacy Act, s. 41 application to review refusal to disclose personal information pursuant to s. 21 (disclosure injurious to defence and international affairs) — RCMP and Privacy Commissioner neither confirming nor denying exis tence of personal files — Propriety of conducting portion of hearing in open court and portion in camera despite s. 51 (application to be heard in camera and ex parte) — S. 49 pre cluding judicial intervention unless Court determining head of institution not having reasonable grounds on which to refuse to disclose personal information — Criteria to be applied by Court in s. 51 review — In light of detailed references to spe cific injurious effects reasonably expected to arise from disclo sure, Court unable to find respondent not having reasonable grounds on which to refuse to disclose information — S. 8 pre cluding disclosure of information relating to others without their consent — Applicant not entitled to information not about him under s. 12 — Role of American courts in reviewing access to information applications contrasted with that of Federal Court under s. 49 — American practice requiring "Vaughn index" (list outlining nature of information withheld and rea son related to statutory exemption) inappropriate in Canadian context — Determination under s. 49 not susceptible to expert evidence — Costs awarded to applicant although unsuccessful as raised important new principle under s. 52.
This was an application under Privacy Act, section 41 for the review of a refusal to disclose personal information pursu ant to section 21, i.e. disclosure could reasonably be expected
to be injurious to Canada's efforts toward detecting, prevent ing or suppressing subversive or hostile activities as defined in subsection 15(2) of the Access to Information Act, including any such information listed in paragraphs 15(1)(a) to (i). In 1983 the RCMP denied applicant's section 12 request for access to personal information maintained by it on the ground that Security Service Records had been designated exempt by the Governor in Council under section 18 and further declined to confirm whether or not information concerning him was maintained. (It was later conceded that the Order in Council was invalid, but the refusal based on section 21 was main tained.) The Privacy Commissioner concluded that the RCMP had acted in accord with the law and also refused to confirm or deny the existence of personal files. The applicant filed this application for review in 1984. Some information was released in 1987 following an inadvertent public admission that infor mation on the applicant was in fact maintained. Additional documents were released over the next couple of years either in their entirety or with deletions.
The hearing commenced in open court despite subsection 51(2), which provides that an application, where refusal to release personal information is based on section 21, "shall be heard in camera" and that the head of the government institu tion concerned shall be given the opportunity to make repre sentations during the hearing ex parte. The respondent filed the public affidavit of a senior officer of CSIS (which had assumed responsibility for the files in 1984) revealing general back ground and features of the information and criteria which ought to be considered in exempting information from access under section 21. A supplementary secret affidavit setting out the concerns about specific injurious effects and efforts toward detecting subversive activities was filed. All information not released was attached as exhibits with accompanying notations as to injurious effects. The Court reviewed the secret affidavit and some of documents (others were later reviewed in cham bers) in camera and ex parte, attended by counsel for the respondent and the Privacy Commissioner, the deponent of the supplementary secret affidavit presented under terms of confi dentiality, an assistant to the deponent (both officers of CSIS), and the Court Registrar. The information contained in the file concerning the applicant related not only to him, but to other groups and individuals.
The applicant submitted that the Court had a responsibility to ensure the fairest process possible. He stressed the purpose of the Privacy Act—to provide access to personal information maintained by government and referred to cases which held that exemptions to access should be strictly construed in light of that purpose. He stressed the inherent unfairness of the pro cedures and their failure to provide the necessary element for an adversarial process since he had no access to the informa-
tion withheld. He was thus denied the factual basis to which submissions could be directly related. The applicant submitted that the Court should adopt as a principle that the head of the government institution withholding information be directed to provide a "Vaughn Index", a practice followed in American cases which requires that a list be prepared outlining the nature of any information withheld and the reason, relating to particu lar statutory exemptions for withholding it.
The respondent submitted that the deponent of the affidavit filed on his behalf should be considered an expert in police work, security service and investigation of subversive activi ties and that his opinions as to whether release of the informa tion could be injurious should be given deference.
The issues were (1) the criteria to be applied by the Court in a section 51 review and (2) the procedures and disclosures to facilitate the fairest process possible for determination of the applicant's rights.
Held, the application should be dismissed.
The hearing was commenced in public based on the princi ple that the Court's proceedings should be open and public unless there is a particular ground warranting exceptional pro ceedings in camera or ex parte. Such a ground exists under subsections 51(2) and (3). That provision is intended to protect public and private interests in information. It would be con trary to the tradition of our judicial system and the Federal Court Rules for the Court ex proprio motu to direct that the hearing take place entirely in camera if that is not necessary for the protection of those interests.
In addition to the paramount consideration, i.e. the standard of proof required by section 49, precluding the Court's inter vention unless "it determines that the head of the institutions did not have reasonable grounds on which to refuse to disclose the personal information", the following criteria were kept in mind during the in camera ex parte review of the documents not released to the applicant: (1) reference in section 21 to "subversive or hostile activities" is not limited to the definition thereof in subsection 15(2) of the Access to Information Act, but incorporates by reference subsection 15(1) which amplifies the meaning in subsection 15(2); (2) the injuries of concern were those at the time of the application for access; (3) the test for injury should be applied in terms specified in Treasury Board guidelines issued to government institutions for dealing with Privacy Act applications; (4) concern as to the confidenti ality of a source may not be warranted where that source did not expect that his identity would not be revealed; (5) concern as to the confidentiality of technical sources of information should perhaps not extend to standard technical measures; (6) mere passage of time does not provide a standard to measure potential injury to the interests of CSIS; (7) severance and release of information not claimed as exempt is appropriate;
(8) it is not the Court's function to review the decision-making process of CSIS; (9) concern for potential injury to CSIS's international links; (10) concern for potentially wider injury than might be perceived by considering an isolated piece of information without awareness of how that could be fitted with other information to provide a mosaic of significance to those seeking intelligence related to CSIS operations; and (11) pas sage of time does not necessarily diminish the reasonable expectation of injury from release of information.
In light of detailed references to specific injurious effects, which could reasonably be expected to arise from disclosure as provided in section 21, the Court could not find that respon dent did not have reasonable grounds on which to refuse to dis close information concerning the applicant. Implicitly, the respondent had reasonable grounds for refusing to disclose the information requested. The respondent was obliged by section 8 not to disclose information related to other individuals, with out consent of those others. The applicant had no right of access to information not about him under section 12. Addi tionally, there was no basis for a finding that the respondent did not have reasonable grounds under section 21 to refuse to disclose the information not about the applicant.
The role of the Court in these proceedings concerns the rea sonable or unreasonable basis for refusal to provide access. That is not the sort of determination where the expert status of a witness can add anything to explanations and testimony, based on his experience, which may warrant belief and thus be persuasive.
As to the fairness of the process, the Court should not direct that a "Vaughn index" or other summary record of information withheld and the reasons for doing so be provided to the appli cant at this stage in the evolution of dealing with the Privacy Act. American courts reviewing a refusal to release informa tion make a de novo determination of the basis for exemption from release, not a determination of whether the refusal was not based on reasonable grounds as is the case under Privacy Act, section 49. The identification of the anticipated injurious effects by the confidential supplementary affidavit went beyond the requirements of a mere index and made prompt and detailed judicial review possible. Development of processes supportive of the individual's right to access to personal infor mation maintained by government institutions can best be con sidered and developed in a context broader than that provided by a single case.
The applicant was awarded costs pursuant to section 52, which provides that where the Court is of the opinion that an
application for review has raised an important new principle in relation to the Act, costs shall be awarded to the applicant even if unsuccessful. This was one of the early applications under the Privacy Act, and involved the difficult and sensitive task of balancing the right of the individual to know what information about himself is maintained by the government and the public interests of Canada in security of the state. This application provided an important opportunity for both the Privacy Com missioner and CSIS to refine their respective approaches to the individual's rights under the Privacy Act.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, s. 15. Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C., 1985, Appendix III], s. 2.
Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, ss. 2, 12, 18.
Freedom of Information Act, 5 USCS § 552.
Privacy Act, R.S.C., 1985, c. P-21, ss. 2, 8, 10, 11, 12, 16,
18, 21, 22, 26, 38, 39, 41, 46, 47, 48, 49, 51, 52, 60, 72, 75.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Zanganeh v. Canada (Canadian Security Intelligence Ser vice), [1989] 1 F.C. 244; (1988), 50 D.L.R. (4th) 747; 20 F.T.R. 100 (T.D.); Russell v. Canadian Security Intelli gence Service (1990), 31 C.P.R. (3d) 184; 35 F.T.R. 315 (F.C.T.D.); CIA v Sims, 471 US 159; 85 L Ed 2d 173 (1985).
CONSIDERED:
Ternette v. Solicitor General of Canada, [1984] 2 F.C. 486; (1984), 10 D.L.R. (4th) 587; [1984] 5 W.W.R. 612; 32 Alta. L.R. (2d) 310; 9 Admin. L.R. 24 (T.D.); Minematsu v. Canada (Royal Canadian Mounted Police), T-1698-87, Jerome A.C.J., order dated 24/2/88 (no rea sons), F.C.T.D., not reported; Vienneau v. Canada (Solici- tor General), [1988] 3 F.C. 336; (1988), 24 C.P.R. (3d) 104 (T.D.); Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973); Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978); Founding Church of Scientology of Washington, D.C., Inc. v. Bell, 603 F.2d 945 (D.C. Cir. 1979).
REFERRED TO:
Reyes v. Sec. of State (1984), 9 Admin. L.R. 296 (F.C.T.D.); Davidson v. Canada (Solicitor General), [ 1989] 2 F.C. 341; (1989), 36 Admin. L.R. 251; 47 C.C.C. (3d) 104; 24 C.P.R. (3d) 129; 98 N.R. 126 (C.A.); Muller v. Canada (Minister of Communications),
A-30-89, Mahoney J.A., judgment dated 12/10/89, F.C.A., not reported.
AUTHORS CITED
Canada. Treasury Board. Interim Policy Guide: Access to Information Act and the Privacy Act, Supply and Ser vices Canada, 1983.
Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Sec ond Report, vol. 1. Freedom and Security under the Law, Ottawa: Supply and Services Canada, August 1981.
COUNSEL:
Sheldon M. Chumir for applicant.
Barbara A. Mcisaac, Q. C. for respondent. Gordon F. Henderson, Q. C. for intervenor.
SOLICITORS:
Sheldon M. Chumir, Calgary, for applicant. Deputy Attorney General of Canada for respon dent.
Gowling, Strathy & Henderson, Ottawa, for intervenor.
The following are the reasons for order rendered in English by
MAcKAY J.: This is an application, pursuant to sec tion 41 and subject to the provisions of section 51 of the Privacy Act, R.S.C., 1985, c. P-21. The applica tion raises two issues where, as in this case, refusal to disclose personal information requested under the Act is stated to be because disclosure could reasona bly be expected to be injurious to the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities, as provided by sec tion 21 of the Act. The application thus raises impor tant issues concerning the appropriate balance between the individual's right, under the Privacy Act, to know what information about himself or herself is maintained by government, and the public interest in maintaining that information without disclosure, sometimes even of its existence, in the interests of protecting the state and its institutions against subver sive or hostile activities.
The first issue concerns the criteria to be applied by the Court in a review under section 51 of the information withheld. The second issue, raised by the applicant, concerns the "procedures and disclosures appropriate to facilitate the fairest process possible for determination of the applicant's rights".
The circumstances leading to consideration of this application are somewhat unusual. They warrant brief review for understanding some of the procedural aspects of the hearing of this matter. From that back ground the standing of the parties and the nature of the hearing can be clarified, and the open and the in camera ex parte portions of the hearing can be explained.
Background
In August 1983 the applicant, Nick Ternette, requested access, pursuant to subsection 12(1) of the Act, to personal information maintained by the Royal Canadian Mounted Police, Security Services Divi sion, in personal information bank no. RCMP—P 130. His request sought "all personal information con tained within the Services Division of the Royal Mounted Police, Security Services Records, specifi cally in regards to activities directed towards accom plishing governmental change within Canada or else where by force or violent means, the use or the encouragement of the use of force or the creation or exploitation of civil disorder (these activities to have taken place in Manitoba & Alberta)". That personal information bank, RCMP—P 130 had been established by the respondent, the Solicitor General of Canada, in accord with section 10 of the Act and had been described in general terms in a published index of personal information, in accord with section 11 of the Act. The Governor in Council, acting under section 18, had designated that bank of records as an exempt bank containing "files all of which consist predomi nantly of personal information described in section 21 or 22".
In response to the applicant's request he was advised by the RCMP that Security Service Records
had been designated by the Governor in Council as exempt from access under section 18 of the Act, that his request was denied and that there would be no confirmation whether or not information concerning him was maintained. In responding to a request for access to personal information the head of a govern ment institution concerned is not required to indicate whether personal information exists, but is required to state the provision of the Act on which a refusal is based or on which refusal could reasonably be expected to be based if the information existed (sub- sections 16(1) and (2) of the Act).
The applicant, in accord with the Act, then filed a complaint with the Privacy Commissioner against the RCMP decisions to withhold confirmation or denial of the existence of records concerning him, and if such files exist to withhold copies from his personal inspection. The Commissioner's investigation of the applicant's complaint led him to conclude, as he advised in responding to the complaint, that the RCMP had acted in accord with the law and that there was no basis to recommend the applicant had been denied a right under the Privacy Act. The Pri vacy Commissioner further advised that his mandate in relation to personal information in exempt banks was to ensure that the information is not improperly maintained or used, and he would neither confirm nor deny the existence of personal files in designated exempt information banks. Ternette was advised that he had a right to appeal the Commissioner's finding to the Federal Court.
By notice of motion dated March 7, 1984, Mr. Ternette applied to this Court "for review of the deci sion to refuse access to information under the provi sions of the Privacy Act". That application was heard by my colleague, Mr. Justice Strayer, who considered the application as one under section 41 of the Act which provides "Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the
refusal, apply to the Court for a review of the mat ter ... ". In his decision' Mr. Justice Strayer rejected the submissions of the respondent that the Court had no jurisdiction to review the question of whether the information sought had been properly denied to the applicant, and he held that the applicant was entitled to have the denial of access reviewed. He ordered the respondent to file an affidavit with the Court under certain terms of confidentiality, which was done.
An appeal of the order of Strayer J. was initiated but later abandoned. Before the appeal was aban doned, the Privacy Commissioner, notified by the Court of the proceedings on the order of Strayer J., applied and was granted status as intervenor, and the style of cause was amended accordingly by order of Mahoney J.A.
I note for the record that the Canadian Security Intelligence Service (CSIS) was established and in 1984 it had taken over control and management of various files maintained formerly by the RCMP Security Service, including information contained in personal information bank RCMP—P 130. That bank was ultimately assigned a new number or numbers by CSIS, a change without relevance to the issues here raised.
The applicant indicated that he would challenge the validity of the Order in Council establishing information bank no. RCMP—P 130 as an exempt bank, apparently in light of comments made by Mr. Justice Strayer that under section 18 each file main tained in an exempt bank must consist predominantly of personal information described in section 21 or 22. Thereafter, the applicant was advised on September 20, 1985, that the respondent was prepared to con cede that the Order in Council establishing personal information bank no. RCMP—P 130 as an exempt bank was not validly enacted. Nevertheless, the
1 Temette v. Solicitor General of Canada, [1984] 2 F.C. 486 (T.D.).
respondent continued to take the position that he was not required to indicate whether personal information about the applicant existed in the information bank in question, but it was indicated that if information did exist a refusal could reasonably be expected to be based on section 21 of the Privacy Act.
It was proposed, and apparently accepted by coun sel for the applicant that a new affidavit on behalf of the respondent be filed, sealed as confidential, deal ing with issues of the existence of any personal infor mation about Mr. Ternette in information bank RCMP—P 130, and whether, if there were such infor mation the respondent had reasonable grounds to refuse to disclose it pursuant to section 21. That ques tion would then be subject to review by this Court pursuant to section 51 of the Act and, in accord with procedures followed in an earlier case, a hearing would be held to receive submissions from the appli cant, followed by a further hearing at which ex parte representations might be made on behalf of the respondent.
Following an inadvertent public admission that information was maintained in relation to the appli cant, in November 1986 he was advised that personal information about him did exist in what was described as personal information bank RCMP P 30 (I assume the number is in error in the letter of advice to the applicant's counsel and that the reference is to RCMP—P 130). A review of information maintained was then undertaken, and copies of certain informa tion were released to the applicant on January 16, 1987 and February 13, 1987. The covering letter with the first of those releases advised that "enclosed is all of the personal information which can be disclosed to you. Exemptions have been applied in whole or in part in accordance with section 21 of the Privacy Act". The second release in February included a sin gle page of a newspaper article, from the Winnipeg Free Press, which had inadvertently been omitted from the first release.
Thereafter, the parties agreed to a further review by the office of the Privacy Commissioner, initiated by request of the applicant, and a thorough review of material maintained in information bank RCMP—P 130 was then undertaken by that office. As a result, additional personal information was released to the applicant on October 30, 1987 and again, on January 12, 1988. On these two later occasions the covering letter sent with the released documents noted that cer tain information relating to the applicant's request had been exempted "in whole or in part, in accor dance with sections 19(1), 21, 22(1)(a)(iii), 22(1)(b) and 26 of the Privacy Act".
On January 25, 1988 the Privacy Commissioner wrote to Mr. Ternette reporting his conclusions fol lowing review of the exemptions claimed by CSIS. He noted, inter alia, the release of additional materi als in October 1987 and January 1988 as a result of negotiations by his office with CSIS, his conclusion that the applicant had "now received access to all per sonal information to which [he] was entitled under the Privacy Act" and that "My close and personal review of the remaining material has satisfied me that it is properly exempted under section 21 of the Act".
The public affidavit of Joseph Claude Camille Dagenais, Director General, Information Manage ment of CSIS, filed on behalf of the respondent, avers that by these various releases 186 documents respect ing Mr. Ternette, consisting of 241 pages, were released with the only deletions being administrative notations and file numbers. In addition, 78 other doc uments were released, including 13 pages in full and 110 pages with deletions. A further 150 pages from these documents have been completely exempted and the balance of documents has not been released.
On August 3, 1990, a further release of informa tion was made to Mr. Ternette, consisting of some ten pages, all with substantial deletions, following a review by CSIS of the injury that might reasonably be expected to be caused by disclosure. This release was thought by the applicant to be in response to his later request for access to information in CSIS Per sonal Information Bank SIS/P-PU-015, for informa tion relating to years after 1983, the last year to which any of the previously released information related. The covering letter sent with the information referred to that information bank, one of the succes sor banks to RCMP—P 130 after responsibilities were assumed by CSIS, but the information released appeared to relate to the period up to 1983. Counsel for the respondent indicated at the hearing that the covering letter's reference to an information bank ought to have been to RCMP—P 130 and the informa tion released was a further release, as a result of con tinuing review of the information by CSIS, related to the applicant's original request.
The parties then agreed that the matter would pro ceed on the basis that the information which had not been released was subject to exemptions provided for by the Privacy Act and the review would be con ducted by the Court on the basis that the respondent was obliged to justify the exemptions, an onus on the government institution refusing to release informa tion as provided by section 47 of the Act.
The expanded list of statutory provisions support ing exemptions, set out in the covering letters with information released in October 1987 and in January 1988, was claimed as a basis for exemptions in the memorandum of fact and law prepared by the respon dent. This was noted in the memorandum submitted on behalf of the applicant, but it was urged that the exemptions should be considered only on the basis of section 21 of the Act, since that was the ground on which exemptions were originally claimed by the respondent, in connection with the denial to release any information and later, in connection with the information originally released. At the hearing coun-
sel for the respondent acknowledged that the Court should consider the matter on the basis that only sec tion 21 was now claimed as a basis for exemption from release of information, although some other sections might also simultaneously apply to particular information, e.g., section 26 which authorizes refusal to disclose personal information about an individual other than the one who requests access, and which requires refusal if the individual concerned has not given consent.
The background reviewed explains the basis for consideration of this application in. accord with sec tion 51 of the Act, which is applicable whenever refusal to release personal information is based on section 21. It also explains the limitation of consider ation for exemption from access to section 21 of the Act.
Arrangements for the hearing
Section 51 provides for special arrangements for a hearing where refusal to release personal information is based on section 21, including provision for the hearing to be in camera and with an opportunity for the respondent to make representations ex parte. 2 Notice of motion was filed on behalf of the respon dent in advance of the hearing that the hearing be conducted in camera and that the respondent have the opportunity to make representations ex parte. When the matter came on for hearing this motion was con
2 51. (1) Any application under section 41 or 42 relating to personal information that the head of a government institution has refused to disclose by reason of paragraph 19(1)(a) or (b) or section 21, and any application under section 43 in respect of a file contained in a personal information bank designated as an exempt bank under section 18 to contain files all of which consist predominantly of personal information described in section 21, shall be heard and determined by the Associate Chief Justice of the Federal Court or by such other judge of the Court as the Associate Chief Justice may designate to hear the applications.
(2) An application referred to in subsection (1) or an appeal brought in respect of such application shall
(a) be heard in camera;
(3) During the hearing of an application referred to in subsection (1) or an appeal brought in respect of such application, the head of the government institution con cerned shall, on the request of the head of the institution, be given the opportunity to make representations ex parte.
sidered but at that time counsel for the respondent proposed, with consent from the applicant, that the hearing proceed in open court, including within the public record the affidavit of Mr. Dagenais, filed on behalf of the respondent which had already been pro vided to the applicant and the deponent had been cross-examined by counsel. In the course of proceed ings in open court counsel for the applicant would make submissions, including submissions concerning the process to be followed in relation to a portion of the hearing proposed to be conducted in camera and ex parte. In the ex parte in camera portion a supple mentary affidavit would be presented, subject to an order of the Court ensuring its presentation and reten tion in confidence. That second affidavit and the affi- ant Mr. Dagenais, together with any documents with held from release to the applicant, would be available for examination by the Court in the in camera ex parte portion of the hearing.
The arrangements proposed by counsel for the respondent were said to follow those adopted in ear lier applications to the Court. 3 Counsel for the appli cant and for the intervenor, the Privacy Commis sioner, consented to the arrangements proposed. Despite subsection 51(2), which provides that an application, as in this case where refusal to release personal information is based upon section 21, "shall be heard in camera", I ordered that the hearing pro ceed, as proposed, in open and public hearing with opportunity for counsel for the respondent to move at the appropriate stage that the hearing continue in camera and ex parte.
3 See Reyes v. Sec. of State (1984), 9 Admin. L.R. 296 (F.C.T.D.) per Jerome A.C.J. See also Minematsu, note 4, below. Other cases indicated as procedural precedents I find on review were conducted in camera as s. 51(2) of the Act appears to require: Zanganeh v. Canada (Canadian Security Intelligence Service), [1989] 1 F.C. 244 (T.D.), per Muldoon J. and Russell v. Canadian Security Intelligence Service (1990), 31 C.P.R. (3d) 184 (F.C.T.D.), per Pinard J. However, in each of the two latter cases the agency concerned, CSIS, had decli ned to advise whether or not personal information concerning the applicant existed in the exempt information bank to which access was sought. In those circumstances it is essential that the entire hearing be conducted in camera.
That order was based on the principle that the Court's proceedings are open and public unless there be a particular ground urged by a party that is deemed to warrant exceptional proceedings in cam era or ex parte. Such a ground exists by virtue of subsections 51(2) and (3). That provision is intended for the protection of public and private interests in information. If it is not seen as necessary for protec tion of those interests for the entire proceedings but only for a portion of them to be held in camera, by counsel representing the head of the government institution concerned, by the applicant, or by the Pri vacy Commissioner, in my view it would be contrary to the longstanding tradition of our judicial system and the Rules of this Court [Federal Court Rules, C.R.C., c. 663] for the Court ex proprio motu to direct that the hearing be fully in camera.
Before commencing hearing the application in open court, counsel were reminded of the Court's obligation, pursuant to section 46 of the Act to "take every reasonable precaution ... to avoid the disclo sure by the Court or any person", inter alia, of any information that the head of a government institution would be authorized to refuse to disclose.
The hearing then commenced, and continued for the most part in open court, with the applicant addressing the two general issues earlier identified and the respondent and intervenor responding to these submissions, followed by an opportunity for reply by the applicant. Thereafter, counsel for the respondent moved that the hearing continue in cam era and ex parte, without the presence of the appli cant or his counsel, in order that the Court receive a supplementary secret affidavit, sealed as confidential and subject to conditions, and have the opportunity to examine the deponent concerning any and all docu ments that had not been released to the applicant. Counsel for the applicant proposed that the Privacy Commissioner attend the ex parte hearing and adopt a role that would be representative of the applicant's rights; otherwise, it was suggested, the attendance of the Privacy Commissioner was not important. That
role was declined by counsel for the intervenor. Pur suant to subsections 51 (2) and (3) I allowed the motion for continuing the hearing in camera and ex parte, ordered sealed as confidential and subject to return to CSIS at conclusion of the hearing the sup plementary affidavit, and invited counsel for the Pri vacy Commissioner to attend to comment upon the process then to be proposed, and its fairness, for deal ing with information to be adduced at the closed ex parte session.
The hearing then continued, in camera and ex parte, in chambers, attended by counsel for the respondent, the deponent of a supplementary secret affidavit presented under terms of confidentiality, and an assistant to the deponent, both being officers of CSIS, counsel representing the Privacy Commis sioner and the Court Registrar. For the record I note that aside from the supplementary affidavit of Mr. Dagenais, no submissions were made by counsel for the respondent during the in camera and ex parte portion of the hearing other than proposals about the process to be followed in that portion, which the Court invited. At the conclusion of one half day hear ing in camera and ex parte the Court again convened in open session and reported upon the process and progress made during the in camera ex parte session. That report may be summarized as follows.
1. A process for review of the information in ques tion was proposed by counsel for the respondent and opportunity was provided for counsel for the intervenor to comment on the process proposed and its fairness. The intervenor offered that the officer of the staff of the Privacy Commissioner who had examined the records in detail was availa ble to be called for questions, if that seemed help ful to the Court, an offer which, in the final result, it did not seem necessary to accept.
2. The process as proposed was accepted by the Court, as outlined below. Counsel for the inter- venor then was excused from continued attendance at the in camera session.
3. The supplementary secret affidavit of Joseph Claude Camille Dagenais of CSIS, presented in confidence, ex parte, at the in camera hearing, was reviewed in detail with counsel for the respondent.
4. Examination of the records not released to the applicant was begun
i) by examination of examples demonstrating the process followed by CSIS in considering the records, including an overview of that process and the classes of injury perceived to the national or public interest if the documents were to be released;
ii) by commencing review of the documents one by one, and
iii) with opportunity for the Court at either stage during the ex parte hearing to question the depo- nent Dagenais.
During the course of this review and thereafter until the Court's review of the information was completed, the Court considered the records in question in light of submissions that had been made by the applicant and by the respondent in open session.
5. Examination of individual records was not com pleted in the course of the in camera ex parte hear ing but would be, and subsequently was, by this Judge in chambers, with no representative of the parties, and no one else, present. If there were need, and there subsequently proved not to be, for further questioning of the deponent Dagenais in relation to the records, counsel for both parties would be advised and the Court, after considering
any submissions of counsel, would propose to resume the in camera ex parte hearing . 4
6. Decision was reserved. Examination of the records in question was completed for the most part within a few days, though to the regret of the Court completion of the matter and production of these reasons has been delayed much longer than anticipated.
Information withheld and criteria for its considera tion
Counsel for the respondent had made clear to counsel for the applicant, in advance of the hearing, the process that would be proposed to the Court, including a proposed hearing in camera and ex parte for receipt of a supplementary affidavit of Mr. Dagenais, with explanation in detail of the reasons for withholding information requested, which reasons related to the injury that could reasonably be antici pated if the information were released.
Counsel for the applicant had cross-examined the deponent Dagenais on his public affidavit and during the public portion of the hearing made submissions about the two general issues raised by the application. He referred to a number of passages in the Report of the Royal Commission of Inquiry Concerning Cer tain Activities of the Royal Canadian Mounted Police (1981) (the McDonald Commission) to illustrate the context in which this application arose. 5 Those passages referred to concerns about the dangers to
4 A similar process, of open and in camera ex parte portions of a hearing was followed by the Court in Minematsu v. Canada (Royal Canadian Mounted Police), (Court File No. T-1698-87). In that case Jerome A.C.J. considered all the docu ments withheld during the in camera ex parte session without the necessity of reviewing those in chambers, and on reconve ning the public hearing announced his decision from the Bench. The process there followed, with an in camera ex parte portion of the hearing, is the subject of appeal (Court File No. A-339-88 (F.C.A.)).
5 Canada. Commission of Inquiry Concerning Certain Acti vities of the Royal Canadian Mounted Police. Second Report. Freedom and Security under the Law (Ottawa, August 1981), vol. 1, at pp. 67-68, paragraphs 70-71; p. 347, paragraph 10; p. 518, paragraphs 13-14; and p. 538, paragraph 65.
citizens which could result from improper use of security files, about indiscriminate information col lection programmes, about the lack of government approval for at least some aspects of the investigative and reporting functions of the RCMP Security Ser vices, and about an absence of law and policy for determining the proper scope of counter-subversion investigation.
For the applicant the purpose of the Privacy Act, as set out in section 2, was stressed, i.e., "to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information". In light of that purpose, decisions of this Court have consistently emphasized that exemptions to access should be strictly construed. 6
The public affidavit of Mr. Dagenais reveals some general background and some general features of the information in issue in this case. He averred:
25. Prior to July of 1984, the Government of Canada relied on the Security Service of the R.C.M.P. to provide it with infor mation in respect of groups or individuals who presented immediate or potential threats to the security of the country because they were engaged in subversive or hostile activities such as espionage, sabotage, terrorism, and the violent over throw of governments. This role now falls within the ambit of CSIS under the Canadian Security Intelligence Service Act. Pursuant to the provisions of that Act, the CSIS mandate, as set out in section 12, is to collect, by investigation or otherwise, to the extent that it is strictly necessary, analyze and retain infor mation and intelligence respecting activities that may on rea sonable grounds be suspected of constituting threats to the security of Canada. Subject to its specific mandate, CSIS oper ates in much the same way as the Security Service did and con tinues to use similar filing procedures, codes, operating meth ods, etc.
26. In order to ensure that there was reliable information about groups and individuals who were engaged in such activities or who were suspected of engaging in such activities (targets of investigation), the R.C.M.P. Security Service operated on the principle that it is absolutely essential that a security agency collect and retain information both on these groups and indi viduals and also on the groups and individuals with whom they establish contact.
6 See, e.g. Reyes v. Sec. of State, supra, note 3.
27. That information was maintained in a manner which allowed it then to be subjected to extensive cross-referencing in order that the security agency could assess the relationships between these groups and individuals.
28. One of the ways in which foreign influenced subversive organizations operated in Canada during the period in ques tion, and now, was by attempting to exploit volatile issues. Their tactics include penetration of legitimate organizations and manipulation of such organizations and unsuspecting indi viduals with a view to furthering their own causes.
29. These legitimate organizations, through manipulation, may be used to confuse public perceptions, sway opinions, and gen erate pressure on the Government from the general public by focusing public attention on specific issues.
30. Identifying subversive elements in legitimate broad based political movements requires discriminating evaluation of the activities of such movements and the individuals involved, and such evaluation can only be effective if a security agency is able to analyze interconnecting relationships on an ongoing basis. It is also necessary to keep informed of political, social and economic conditions in order to detect exploitation and anticipate potential threats to security.
31. Accordingly, the R.C.M.P. Security Service maintained files during the period in question by cross-referencing to the file of a group or individual all reports, public information or assessments relating to that group or individual or to that group or individual's activities.
32. It is for this reason that the information contained in the file relating to the Applicant relates not only to him but also to other groups and individuals. The information about him is inseparable from the larger context necessary to provide an accurate assessment of his involvement in any given situation.
The statutory exemption under section 21 deals with a number of possible injuries to Canada, but it was agreed that in this case the injury of concern was to "the efforts of Canada toward detecting, prevent ing or suppressing subversive or hostile activities as defined in subsection 15(2) of the Access to Informa tion Act, including ... any such information listed in paragraphs 15(1)(a) to (i)" of that Act. 7
7 The parties here agreed that denial of release was related to that portion of s. 21 here underlined:
21. The head of a government institution may refuse to disclose any personal information requested under subsec tion 12(1) the disclosure of which could reasonably be
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Mr. Dagenais, whose affidavit was filed on behalf of the respondent, was a senior officer of CSIS. For merly a member of the RCMP from 1958, in 1984 he transferred to CSIS as Director General Counter Sub version Branch, then served as Deputy Director Gen eral Quebec Region before assuming his current
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expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associa ted with Canada, as defined in subsection 15(2) of the Access to Information Act, or the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities, as defined in subsection 15(2) of the Access to Information Act, including, without restricting the generality of the foregoing, any such information listed in paragraphs 15(1)(a) to (i) of the Access to Information Act.
Portions of the Access to Information Act, R.S.C., 1985, c. A-1,
here incorporated by reference are:
15....
(2) In this section,
"subversive or hostile activities" means
(a) espionage against Canada or any state allied or asso ciated with Canada,
(b) sabotage,
(c) activities directed toward the commission of terrorist acts, including hijacking, in or against Canada or foreign states,
(d) activities directed toward accomplishing government change within Canada or foreign states by the use of or the encouragement of the use of force, violence or any criminal means,
(e) activities directed toward gathering information used for intelligence purposes that relates to Canada or any state allied or associated with Canada, and
(f) activities directed toward threatening the safety of Canadians, employees of the Government of Canada or property of the Government of Canada outside Canada.
15. (1) The head of a government institution may refuse to disclose any record requested under this Act that contains information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associa ted with Canada or the detection, prevention or suppression of subversive or hostile activities, including, without restric ting the generality of the foregoing, any such information
(a) relating to military tactics or strategy, or relating to military exercises or operations undertaken in preparation
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responsibilities as Director General, Information Management, in December 1987. During his prior service with the RCMP, from 1962 to 1980 he was with the Security Service, then was Executive Officer
(Continued from previous page) for hostilities or in connection with the detection, preven tion or suppression of subversive or hostile activities;
(b) relating to the quantity, characteristics, capabilities or deployment of weapons or other defence equipment or of anything being designed, developed, produced or consid ered for use as weapons or other defence equipment;
(c) relating to the characteristics, capabilities, perfor mance, potential, deployment, functions or role of any defence establishment, of any military force, unit or per sonnel or of any organization or person responsible for the detection, prevention or suppression of subversive or hostile activities;
(d) obtained or prepared for the purpose of intelligence relating to
(i) the defence of Canada or any state allied or associa ted with Canada, or
(ii) the detection, prevention or suppression of subver sive or hostile activities;
(e) obtained or prepared for the purpose of intelligence respecting foreign states, international organizations of states or citizens of foreign states used by the Government of Canada in the process of deliberation and consultation or in the conduct of international affairs;
(f) on methods of, and scientific or technical equipment for, collecting, assessing or handling information referred to in paragraph (d) or (e) or on sources of such infor mation;
(g) on the positions adopted or to be adopted by the Government of Canada, governments of foreign states or international organizations of states for the purpose of present or future international negotiations;
(h) that constitutes diplomatic correspondence exchanged with foreign states or international organizations of states or official correspondence exchanged with Canadian diplomatic missions or consular posts abroad; or
(i) relating to the communications or cryptographic sys tems of Canada or foreign states used
(i) for the conduct of international affairs,
(ii) for the defence of Canada or any state allied or associated with Canada, or
(iii) in relation to the detection, prevention or suppres sion of subversive or hostile activities.
to the Commissioner and later second in command of the Counter Subversion Program of the RCMP Secur ity Service. In view of his long service in police work, security service and counter-subversion inves tigation, it was submitted by counsel for the respon dent that Dagenais should be considered an expert in these fields. Moreover, it was urged that his views and opinions ought to be given deference with respect to whether release of the information in ques tion could reasonably be expected to be injurious to the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities within the meaning of section 21. Counsel referred to CIA v Sims, 8 a United States decision under the Freedom of Information Act [5 USCS § 552], in which the U.S. Supreme Court had supported the necessity of defer ence by judges to the security agency's expertise in matters of national security. Sims is an interesting decision, but because the role of the Court in these proceedings concerns the reasonable or unreasonable basis for refusal to provide access and not a de novo hearing to determine a basis for exemption from release of information, as U.S. courts are directed to do, in my view CIA v Sims is not directly referable to this situation.
While I respect Mr. Dagenais' experience and ser vice and acknowledge that through these he has obvi ously gained considerable expertise, which I recog nize on its own merits, I decline to accept the submission that he be accorded status as an expert witness in the normal sense. The determination which the Court must make under the statute, in my view, is not of the sort where the status as expert of a witness or affiant can add anything of significance to his explanations and testimony, based on his experi ence, which may warrant belief, and thus be persua sive.
In light of his experience, the public affidavit of Mr. Dagenais warrants careful consideration in its references to the criteria which ought to be borne in
8 471 US 159; 85 L Ed 2d 173 (1985).
mind in considering exemptions from access to infor mation based on section 21. He avers:
33. The information which has not been released to the Appli cant reveals the following:
1. the names or identities of human sources utilized by the RCMP and CSIS as well as any information from which the identity of human sources could be derived;
2. technical sources used by the Security Service;
3. identification of both groups and individuals who were investigated by the Security Service and, in some cases, who continue to be investigated by CSIS;
4. information which would clearly reveal the extent to which the Security Service was aware of the activities of targets and the scope of its interest in them;
5. the depth, development and sophistication of the resources employed, as well as the degree of expertise of the Secur ity Service;
6. the effectiveness of Security Service investigations;
7. internal procedures used by the Security Service to main tain, correlate and transmit information such as, file num bers and categories; cross-referencing methods; extracting methods; methods of constructing reports; process of assessing raw information; and cryptographic systems used for communication.
34. The most important tool of any security agency is human sources. These may be people who volunteer information which they have received or persons who co-operate with the security agency when asked to do so. They may be persons who have deliberately placed themselves in a position to obtain information for the security agency at considerable personal risk to themselves, their families and their reputations. Devel opment of human sources is a long process based on a care fully molded trust that the source's identity will be protected.
35. Attached hereto and marked as Exhibit "G" to this my affi davit is an excerpt from the transcript of testimony before the Commission of Inquiry concerning certain activities of the Royal Canadian Mounted Police, specifically, pages 2422- 2477 of volume 16. I agree with and adopt the statements made therein by the witness Barr.
36. It is imperative that a security agency be in a position to protect its sources and guarantee their anonymity. Failure to do so in any particular case would destroy that source's effective ness and could expose him or her or his or her family to har assment or physical danger. In the larger context, however, the revelation of the name of a source who has supplied informa tion to the R.C.M.P. Security Service, even that of a source who would not be considered a covert source, would have the
effect of causing all sources to become more hesitant about co operating with CSIS.
37. It is my opinion that disclosure of such information would be a message to current and potential sources that CSIS could not guarantee the anonymity upon which their safety depends. It is my opinion that covert sources and the general populace would be much less willing to co-operate with CSIS and assist it in its investigations. The necessity of protecting human sources and the essential role which they play in intelligence work has long been recognized. I would adopt and concur with a statement made at page 101 of the report of the Royal Com mission on Security (June 1969):
"288. Human agents are one of the traditional sources of intel ligence and security information, and any security service is to a large extent dependent upon its network of agents, on the scale of their penetration of or access to useful targets and on their reliability. Operations involving human sources require the most sophisticated handling by trained men with wide experience. Nevertheless, in spite of the difficulties associated with some of these operations, we regard them as essential to an effective security posture. We would go fur ther, and suggest that it is impossible fully to comprehend or contain the current threats to security-especially in the field of espionage-without active operations devoted to the acqui sition of human sources."
38. A security agency cannot operate effectively if the targets of its investigations are able to ascertain what is already known about them, the methods of operation being used against them, the extent of coverage they are being afforded or the sources who are reporting on their activities.
39. If targets of investigations had such knowledge, they would be able to take specific precautions and countermeasures against future surveillance, and they would be in a position to introduce false or misleading information into the investigative process. As a result, the scope and reliability of information available would be severely affected.
40. All security agencies, including CSIS and the former RCMP Security Service use secure communications or crypto- graph systems to transmit messages. The information in some of these messages would still be valuable to those whose inter ests are inimical to Canada and its allies.
41. Trust and confidence in the ability of a security agency to protect information are essential to the relationship which it has with similar agencies of foreign governments. The sharing of information is an important aspect of the investigative pro cess and such co-operation would be curtailed if foreign agen-
cies were to lose confidence in the ability of CSIS to protect such information.
42. The passage of time and the age of information cannot be used to conclude that its release will not cause any damage. Sources may still be active. Inactive sources could have their safety jeopardized or be lost for the future. Targets would know much about the scope of the information available on them.
43. Disclosure of information which reveals the methods by which information is collected, references are coded, informa tion is cross-referenced or extracted, and raw information ana lyzed, would, in my opinion, cause irreparable harm to the investigative process. That information, if disclosed in this case, and subsequently in similar situations, would ultimately provide a body of information which could seriously prejudice the effectiveness of CSIS.
44. Knowledge of the internal procedures, operational deploy ments, structure and strength would facilitate attempts to iden tify targets of investigation, sources, and methods of operation in ongoing investigations.
45. One must also be sensitive to what may be termed the "mosaic effect", whereby one takes seemingly unrelated pieces of information, which may not be particularly sensitive indi vidually, and compares them with each other to develop a more comprehensive picture.
46. It is frequently difficult to anticipate how information released in one context, when compared to information availa ble in another, can be used in this way.
As to criteria for consideration of the Court in review of information withheld from the applicant, counsel for Mr. Ternette made a number of submis sions as did counsel for the respondent. I summarize those briefly as follows.
1. For the applicant it was urged that "subversive or hostile activities" referred to in section 21 was restrictively defined by subsection 15(2) of the Access to Information Act; more narrowly, it was contended, than the ambit of responsibilities assigned to CSIS under section 12 of the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23, 9 and more narrowly than "threats to the security of
9 S. 12 provides:
12. The Service shall collect, by investigation or other wise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting
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Canada" is defined in that same Act. 10 The Court, it was submitted, should be rigorous in ensuring that the information withheld was clearly within the com paratively narrow limits of the Privacy Act. Without comment on the comparisons drawn with the CSIS Act, I agree that the Privacy Act here is applicable, though I note for the record that the concluding words of section 21 refer not merely to the definition provided by subsection 15(2) of the Access to Infor mation Act, but also incorporate by reference subsec tion 15(1), portions of which in my view clearly amplify the meaning of "subversive or hostile activi ties" as defined in subsection 15(2).
2. An illustration of the need to review the informa tion restrictively in terms of the Privacy Act read in proper context, was said by the applicant to arise in
(Continued from previous page)
threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada.
10 2. In this Act,
"threats to the security of Canada" means
(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities direc ted toward or in support of such espionage or sabotage,
(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any per son,
(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious vio lence against persons or property for the purpose of achie ving a political objective within Canada or a foreign state, and
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,
but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).
relation to the claim with the later releases of infor mation that some had been withheld in reliance upon subparagraph 22(1)(a)(iii) (among other exemptions) of the Privacy Act. That subparagraph concerns information obtained or prepared in the course of lawful investigations of activities suspected of consti tuting threats to the security of Canada within the CSIS Act. Counsel for the parties were agreed that that subparagraph was not applicable in this case for the application for access antedated the CSIS Act and subparagraph 22(1)(a)(iii) of the Privacy Act.
3. I accept the submission of the respondent, with which the applicant did not disagree, that the injuri ous effects of concern under the latter portion of sec tion 21, "to the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activ ities", are injuries to the interests of CSIS in light of its responsibilities as established by sections 12 to 18 of the CSIS Act which set out the duties and func tions of the service. I also accept that the concern is related to a reasonable expectation of injury from release of information at the time of the application for access, an assessment distinct from any reasons underlying the collection of the information in ques tion.
4. The test for injury to "the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities", as provided by section 21, ought to be applied, in the view of the applicant, strictly and in terms specified in Treasury Board guidelines issued to government institutions for dealing with Privacy Act applications. Those provide that "injurious" in the context of section 21 means having a detrimental effect and "[d]isclosure of the information must rea sonably be expected to prove harmful or damaging to the specific public or private interest covered by the exemption in order for access to be refused." The injury of concern in any given case should be specific to the party or the interest which will suffer injury; it should be current in the sense that the detrimental effect is perceived at the time the exemption is claimed or in the foreseeable future; and the injury
should be probable, if there is to be a reasonable like lihood of its occurrence. 11 This approach was not contested by the respondent. Indeed, in cross-exami nation on his public affidavit Mr. Dagenais referred to the Treasury Board guidelines as the policy basis for standards utilized in review of the information requested by the applicant.
i) The applicant concedes the probability of injury to CSIS interests if information released should lead to the identification of human sources of information, a principal concern identified by the affiant Dagenais in his paragraphs 33.1, 34, 35, 36 and 37. Nevertheless, the applicant urges that this concern should only be warranted where there is an expectation by the source that his or her identity as a source would be maintained in confidence, that it should not extend to a casual source provid ing information without expectation of confidenti ality, and in circumstances where the information in issue would by its release identify the source. This concern should not be extended to all infor mation from a given source unless that characteris tic of identifying the source were likely. For the respondent the concerns are as outlined in the Dagenais affidavit. In my view the submissions of the applicant warrant serious consideration if in any case it is clear that information withheld would not lead to identification of a confidential
source 12 and provided release of such information clearly does not raise concern about other possible injury to CSIS interests. Those conditions may not be easily met in light of the standard of proof required of the respondent under section 49. Coun sel for the respondent noted that this Court has clearly recognized the need to protect from release, information that could reasonably be expected to reveal the identity of a human source of informa
l! Canada. Treasury Board, Interim Policy Guide: Access to Information Act and the Privacy Act, Part Ill, at pp. 82-83.
12 This appears to be a situation that is simply the reverse of that provided for in s. 18(1)(a) of the CSIS Act which prohibits disclosure of information "from which the identity of (a) any other person who is or was a confidential source of informa tion or assistance to the Service" can be inferred.
tion provided in the course of a lawful investiga tion. 13
ii) The concern of the respondent about injury from release of information relating to technical sources used by the security service, referred to in Mr. Dagenais' affidavit in paragraph 33.2 is acknowledged by the applicant but it is urged that that concern ought not to extend to standard tech nical measures such as wire taps or hidden micro phones which by common knowledge may be used by security services, particularly where that use was in collection of information going back 20 years or more. It is submitted that this prospective injury should be limited to circumstances where there is a current investigation using technical means of investigating a particular target, or other wise secret technical means of investigation are employed.
iii) In relation to three concerns of the respondent, the applicant submits that these should be consid ered as met substantially by the passage of time, except where there is a current investigation of a particular target or a potential target. That should be the case in relation to information concerning targets of investigation (Mr. Dagenais' affidavit, paragraphs 33.3, 33.4, 38 and 39) unless the target is subject to current or continuing investigation and is considered a current threat. It was suggested the passage of time also met concern in relation to information concerning the depth, development and sophistication of resources or expertise of the security service (affidavit of Dagenais, paragraphs 33.5 and 43), unless there is a current or potential target or the information relates to unique method ology or other information about the current opera tions of the security service. Finally, the passage of
13 Davidson v. Canada (Solicitor General), [1989] 2 F.C. 341 (C.A.); Muller v. Canada (Minister of Communications), (Court file no. A-30-89, October 12, 1989 (F.C.A.), not repor ted).
time, it was urged, should meet the concern in rela tion to information that would reveal internal methods, systems, or procedures of the security service itself (affidavit of Dagenais, paragraphs 33.7 and 40). In all these concerns, the applicant urges that the passage of time since information here in issue was collected, from 1966 to 1983, should be a major consideration affecting the rea sonable likelihood of injury. As Mr. Dagenais notes, (affidavit, paragraph 42) and I would con cur, the mere passage of time in itself does not pro vide a standard to measure potential injury to the interests of CSIS. Moreover, the likelihood of injury is to be assessed at the date information is to be released, and the reasons for collection of the information are distinct from considerations of potential injury likely to be caused by its release.
5. Other considerations raised by the applicant con cerned the importance of the obligation referred to in Treasury Board guidelines, for the head of the gov ernment institution concerned to relate the refusal to disclose particular information to a specific exemp tion under the Act, in this case section 21, and to sever information not exempt from that for which an exemption is claimed. 14 It was further urged that information not personal to the applicant but which put the personal information in context, should also be released. Finally, the Court was urged to review the process of decision making by CSIS that lay behind the various releases of information to Mr.
14 Unlike the Access to Information Act, the Privacy Act contains no specific provision for severability and release of information that is not exempt from release. Nevertheless, the Privacy Act, s. 12 providing access to any personal informa tion maintained by a government institution, implies, and Trea sury Board guidelines direct that information not exempt from disclosure be severed from exempt information and the former be released, where it is reasonable to do so.
Ternette to assess whether there was a shifting basis for claiming exemption that was unwarranted. For the record I note that severance and release of infor mation that is not claimed as exempt is appropriate, and moreover, it is a practice already followed by CSIS in release of some information to the applicant with substantial deletions from the original full text of the documents. I note also that I do not see it as the Court's function to review the process of decision making within CSIS about release of information in this case, though it will be recalled that later releases in October 1987 and January 1988 resulted from the involvement and negotiations with CSIS by the inter- venor, the Privacy Commissioner. Here the role of the Court is to assess on review, in accord with sec tion 49 of the Privacy Act, whether the respondent did not have reasonable grounds to refuse to release the information still withheld at the time of the hear ing.
6. For the respondent, it was urged that the Court's task must be seen in light of section 49 of the Act which provides:
49. Where the head of a government institution refuses to disclose personal information requested under subsection I 2(1) on the basis of section 20 or 21 or paragraph 22(1)(b) or (c) or 24(a), the Court shall, if it determines that the head of the insti tution did not have reasonable grounds on which to refuse to disclose the personal information, order the head of the institu tion to disclose the personal information, subject to such con ditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.
That standard of proof requires that the Court, before ordering release of information which has not been disclosed on the basis of section 21 of the Act (as also in the case of certain other exemption sections), must determine that there was not reasonable grounds for the refusal to disclose. Counsel for the respondent characterized the standard as that of an appellate tri bunal. It was contrasted with the standard required under section 48 in relation to refusals to provide access related to other sections of the Act providing for exemptions, which requires a determination by the Court that the head of the institution concerned is
not authorized to refuse to disclose the information, a process akin, so it was described, to a de novo review of the decision. In my view, section 49 is clear as to the standard of proof applicable in this case, i.e., that the Court will not intervene to order disclosure of withheld information unless it finds that there was not reasonable grounds for the refusal to disclose.
Three general considerations were also referred by counsel for the respondent to the attention of the Court in its review of information withheld. All of these were referred to in the public affidavit of Mr. Dagenais. These were the concerns for potential injury to international links of CSIS with other coun tries (affidavit, paragraph 41); for potentially wider injury than might be perceived by considering a piece or pieces of information without awareness of how that could be fitted with other information to provide a mosaic of significance to those seeking intelligence related to CSIS operations (affidavit, paragraphs 45 and 46), and finally, it was stressed that pure passage of time since the information was collected did not in itself provide any assessment of the reasonable expectation of injury from release of the information.
These varied submissions of counsel, except where my summary indicates otherwise, were kept in mind by this Court in its review, in camera and ex parte, of the individual records not released to the applicant. Needless to say, a paramount consideration was the standard of proof required in accord with section 49, a standard that precludes the Court's intervention unless "it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information" requested by the applicant.
Fairness of the process
Counsel for the applicant stressed the inherent unfairness of the process, and its failure to provide the necessary element for an adversarial process, since neither he nor the applicant have any access to the information withheld. They were thus denied the factual basis to which submissions could be directly related.
Acknowledging that by section 51 Parliament had provided for the process to be in camera and ex parte, with submissions from the respondent made without knowledge of the applicant or any opportu nity to address directly submissions or evidence presented ex parte, counsel urged that the Court had a responsibility to ensure the fairest process possible in the circumstances. That responsibility was particu larly significant in light of the general purpose of the Privacy Act, to provide access to personal informa tion maintained by government.
Two proposals were advanced for consideration by the Court. The first was that the Court adopt as a principle that in cases of this sort, the head of the government institution withholding information be directed to provide a so-called "Vaughn Index", list ing in outline the nature of any information withheld and the reason, relating to particular statutory exemp tions for withholding it. That would adopt the process evolved in United States' courts 15 to deal with appli cations for review of refusals to release information sought under the Freedom of Information Act (U.S.). There an index is required in many, though not all, such applications, to be provided as part of the public record and open to adversarial dispute and submis sions, even in cases involving security matters. 16 It was urged such an index would provide a poor but better opportunity than is now available to an appli cant to argue in support of an application for infor mation. Where an index of this sort has been required it has been required to be specific as to the exemption claimed for each deletion or withheld document and
to explain the relevance of the exemption. 17 Counsel did also refer to Vienneau v. Canada (Solicitor Gen eral), 18 where Mr. Justice Jerome A.C.J. dismissed an application to require a government institution to designate for each item of information withheld from
release, under the Access to Information Act, the ground for claiming exemption. Yet the learned Associate Chief Justice added "I find the practice of providing section numbers next to deletions, as many
18 Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973).
16 Ray v. Turner, 587 F.2d 1187 (D.C. Cir. 1978).
17 Founding Church of Scientology of Washington, D.C., Inc. v. Bell, 603 F.2d 945 (D.C. Cir. 1979).
18 [1988] 3 F.C. 336 (T.D.), at pp. 342-343.
departments do, a highly commendable one.... I would therefore urge that, where there is no danger of revealing the substance of protected information, government institutions should continue to provide the relevant section numbers for each deletion".
It was, as counsel for the respondent noted, late in the day in these proceedings to consider requiring an index of the records as part of the public record and there was no basis for concluding that it would be helpful, even if it could be provided, in a case such as this. Moreover, the role of the Court in judicial review of a refusal to release information in the United States, is to make a de novo determination of the basis for exemption from release, not, as in this case, under section 49 of the Privacy Act, to deter mine if the refusal was not based on reasonable
grounds.
I declined at the hearing to direct that an index of the sort that has come to be known as the "Vaughn Index" in United States courts be provided to the applicant. In the memorandum of fact and law on behalf of the applicant counsel did submit, as an
alternative course to filing a public index:
18. Where, as here, ex parte affidavit evidence is to be received from the Respondent, it is submitted that the Court should require the Respondent to provide it in the form of a detailed index similar to that required in the United States under the Vaughn rule in order to assist the Court in its in cam era review of the file, if one exists.
I note for the record that the supplementary affidavit filed in confidence on behalf of the respondent did fully set out, with examples, the concerns about spe cific injurious effects anticipated to the interests of CSIS and efforts toward detecting subversive or hos tile activities, if the information were released. In the exhibits to that affidavit which included all informa-
tion not released to the applicant, including all pages which had been released with deletions, on each page was noted, by reference, the specific injurious effect or effects that release of that page was anticipated to be likely to cause. That thorough, careful analysis and documentation made it possible for the Court to review without difficulty the basis upon which the decision had been made to refuse access or release to the applicant.
The second proposal of the applicant was, as ear lier noted, that counsel for the intervenor, the Privacy Commissioner, be invited to attend the in camera ex parte hearing and to there represent the interests of the applicant. I have noted that counsel for the inter- venor declined to consider such a role, particularly in light of the Commissioner's substantial involvement at an earlier stage in this matter. I also note that I am appreciative of the comments and submissions of counsel for the intervenor at both the public and the in camera ex parte portions of the hearing.
Finally, counsel for the applicant noted that in Minematsu 19 where the applicant's appeal from the order of the learned Associate Chief Justice concerns the unfairness of the process there followed, and essentially followed in this matter, reliance is placed upon paragraph 2(e) of the Canadian Bill of Rights 20 which provides:
2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate not withstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to
(e) deprive a person of the right to a fair hearing in accor dance with the principles of fundamental justice for the determination of his rights and obligations;
19 Supra, note 4.
20 S.C. 1960, c. 44 [R.S.C., 1985, Appendix Ill].
No special argument was in this case directed to that provision of the Bill of Rights, but counsel referred to it as general support for his submission that the Court has a responsibility to ensure the fairest process pos sible.
Conclusion
Bearing in mind the considerations raised by coun sel for the parties concerning assessment of the grounds relied upon by the respondent for refusing access to information requested by the applicant, I have reviewed in camera and ex parte the informa tion provided with the supplementary affidavit filed in confidence on behalf of the respondent and, of course, the affidavit itself. My review was completed quite promptly because of the thorough and careful preparation by CSIS on behalf of the respondent for the Court's review. My delay in providing these rea sons and disposing of the matter arises because of other obligations and ought not to be taken as any indication of the volume or quantity of the informa tion here in question. So far as my delay arises from consideration of the issues raised, time has been devoted to considering the applicant's submissions concerning the Court's responsibility to ensure the fairest possible process and opportunity for the appli cant to be heard, in addition to that required for review of the information itself.
As to the fairness of the process, I conclude that this is not a matter on which, at least at this stage in the evolution of dealing with the Privacy Act, this Court should direct that a "Vaughn Index" or other summary record of information withheld and the rea sons for so doing be provided to the applicant. While it does not meet the applicant's concern to be heard directly with reference to the specific reasons, i.e., the injurious effects anticipated if the information were to be released, I commend the way in which these effects were identified with reference to each type of information and each page of information withheld, by the confidential supplementary affidavit of Mr. Dagenais and its exhibits. That process went
, beyond the requirements of a mere index and made
possible detailed review by the Court of the informa tion withheld, and quite promptly.
Parliament has provided the basic framework for the process here followed, by section 51 of the Act, providing for a hearing in camera and at the request of the respondent for submissions to be made ex parte. Development of processes supportive of the individual's right to access to personal information about himself or herself maintained by government institutions can best be considered and developed in a context broader than that provided by a single case, important as the single case is. The Act itself con tains provisions that can facilitate this. The Privacy Commissioner reports annually to Parliament (sec- tion 38) and may at any time report to Parliament on a matter of urgency or importance (section 39); that Commissioner shall carry out studies referred by the Minister of Justice and report to the Minister (section 60); the head of every government institution is required to report annually to Parliament on the administration of the Act within the institution (sec- tion 72); and the administration of the Act is to be reviewed "on a permanent basis" by a parliamentary committee (section 75).
The information reviewed by the Court included all documents not released to the applicant and those released to him with deletion of information with held. As set out in the public affidavit of Mr. Dagenais in paragraphs 24 to 32, the information contained in the file concerning the applicant related not only to him but also to other groups and individu als. In so far as it relates to other individuals the respondent is obliged by section 8 of the Privacy Act not to disclose that information without consent of those others. In so far as it is not information about the applicant, Mr. Ternette has no right of access to it under section 12 of the Act, which provides that he has a right and shall be given access to personal information about himself. In addition to those con siderations which provide a statutory basis for refusal to disclose some of the information withheld, my review of the filed information that is not about the
individual, Mr. Ternette, in light of the detailed refer ences to injurious effects anticipated if this informa tion were released, leads me to conclude that there is no basis for a finding that the respondent did not have reasonable grounds under section 21 on which to refuse to disclose the information.
As for information concerning the applicant, in light of the detailed references to specific injurious effects, which could reasonably be expected to arise from disclosure, to "the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities" as provided by section 21, I do not conclude that the respondent did not have reasonable grounds on which to refuse to disclose the informa tion.
In the absence of negative findings as required by section 49, it is implicit that this Court finds the respondent had reasonable grounds for refusing to disclose the information requested, based on section 21 and the reasonable expectation that disclosure could be injurious, in the ways identified in the pub lic affidavit of Mr. Dagenais at paragraphs 33 to 46, to efforts to detect, prevent or suppress subversive or hostile activities.
In the result, an order goes dismissing the applica tion.
That order is made with costs awarded to the appli cant pursuant to section 52 of the Privacy Act. This provides for costs to be in the discretion of the Court and to follow the event unless otherwise ordered, and where the Court is of the opinion that an application for review has raised an important new principle in relation to the Act, the Court is directed to order costs be awarded to the applicant even if he has not been successful.
This case was one of the early applications under the Privacy Act, and one involving the difficult and sensitive task of balancing the right of the individual and the public interests of Canada in security of the state. The application to this Court, heard in the first
instance by my colleague Mr. Justice Strayer, estab lished incidentally the basis for assessing the assign ment of files of personal information to exempt banks and more importantly, affirmed the right of the individual to judicial review by the Court of the refusal by the head of a government institution to acknowledge the existence of personal information concerning an applicant, and of a decision to refuse to release information. Thereafter, pursuit of his application by Mr. Ternette led to active involvement of the Privacy Commissioner in detailed review of information originally withheld by the respondent, and release to the applicant of considerable personal information about himself. My sense is that this application provided an important opportunity for the Privacy Commissioner and for CSIS to refine their respective approaches to the individual's rights under the Privacy Act. In writing to the applicant in January 1988, reporting on the results of the detailed review by his office of the information withheld, the Privacy Commissioner wrote:
This report culminates our work in your case and marks the end of one of the more extensive and complex investigations we have undertaken. Your case, perhaps more than any other of late, has broadened the public's perception of the fundamental principles of the Privacy Act and will stand, in my view, as a landmark in the exercise of privacy rights in Canada.
I note that counsel for the respondent had no objec tion to an award of costs to the applicant, on a party and party basis, in this case.
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