Braunschweig v. Canada (Minister of Public Safety and Emergency Preparedness), (2014) 449 F.T.R. 252 (FC)

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: March 10, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 449 F.T.R. 252 (FC);2014 FC 218

Braunschweig v. Can. (2014), 449 F.T.R. 252 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. MR.027

Robert Braunschweig (applicant) v. Minister of Public Safety (respondent)

(T-17-13; 2014 FC 218; 2014 CF 218)

Indexed As: Braunschweig v. Canada (Minister of Public Safety and Emergency Preparedness)

Federal Court

Noël, J.

March 10, 2014.

Summary:

The applicant requested under the Privacy Act that the Canadian Security Intelligence Service (CSIS) disclose any personal information concerning him that was held and controlled by CSIS in personal information banks (PIBs) SIS PPU 005, SIS PPU 015 and SIS PPU 045 (respectively, PIB 005, PIB 015 and PIB 045). CSIS Head of Access to Information and Privacy responded in a letter which contained the following conclusions. First, no personal information relating to the applicant had been found in PIB 005. Second, personal information concerning the applicant was found in PIB 015, but this information was exempt from disclosure under the Act. Third, PIB 045 was an "exempt bank" and, accordingly, CSIS declined to confirm or deny the existence of personal information concerning the applicant. In addition, should this PIB contain such information, it would be exempt from disclosure. The applicant applied for judicial review.

The Federal Court dismissed the application

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - The applicant requested under the Privacy Act that the Canadian Security Intelligence Service (CSIS) disclose any personal information concerning him that was held and controlled by CSIS in personal information bank SIS PPU 005 (PIB 005) - CSIS concluded that no personal information relating to the applicant had been found in PIB 005 - The applicant applied for judicial review - The Federal Court dismissed the application - The institution's actions leading to the finding that there was no personal information relating to the applicant in PIB 005 were factually based by the evidence submitted - See paragraphs 41 to 42.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - The applicant requested under the Privacy Act that the Canadian Security Intelligence Service (CSIS) disclose any personal information concerning him that was held and controlled by CSIS in personal information bank (PIB) SIS PPU 045 (PIB 045) - CSIS concluded that it was an "exempt bank" and, accordingly, CSIS declined to confirm or deny the existence of personal information concerning the applicant in PIB 045 - In addition, should this PIB contain such information, it would be exempt from disclosure - The applicant applied for judicial review - The Federal Court dismissed the application - Section 18 of the Act allowed the Governor in Council to designate certain PIBs as exempt banks with respect to files that contained mostly personal information described in s. 21 or 22 - Given that this PIB was made mostly of sensitive national security information, CSIS adopted the policy of refusing to confirm or to deny the existence of any information in this PIB because under certain circumstances the mere acknowledgement that CSIS did or did not detain information about a particular individual could jeopardize CSIS's operations and investigations - It was reasonable for the institution to refuse to either confirm or deny the existence of personal information related to the applicant in PIB 045 - See paragraphs 43 to 49.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - The applicant requested under the Privacy Act that the Canadian Security Intelligence Service (CSIS) disclose any personal information concerning him that was held and controlled by CSIS in personal information bank SIS PPU 015 (PIB 015) - CSIS concluded that personal information concerning the applicant was found in PIB 015, but this information was exempt from disclosure under the Act - The applicant applied for judicial review - The Federal Court dismissed the application - Section 22(1)(a)(iii) of the Act was sufficient to justify the non-disclosure of personal information detained by CSIS relating to the applicant - That provision set out a discretionary class-based exemption which allowed a government institution to refuse disclosure of personal information obtained by an investigative body during the course of an investigation if the information in question came into existence less than 20 years prior to an applicant's request for information - This information fell within the ambit of s. 22(1)(a)(iii) - It was reasonable for CSIS to refuse to communicate to the applicant the personal information concerning him found in PIB 015 - The applicant argued that CSIS should have undertaken a balancing of competing interests to determine whether the third party's interest in the non-disclosure of the documents outweighed the applicant's reasonable interest in disclosure - However, that balancing exercise was only required when ss. 8 and 26 of the Act came into play - CSIS did not rely on ss. 8 and 26 - See paragraphs 50 to 58.

Crown - Topic 7204

Examination of public documents - Freedom of information - Bars - Nonexistence of documents - [See first Crown - Topic 7170 ].

Crown - Topic 7204.1

Examination of public documents - Freedom of information - Bars - Interference with operations of institution - [See second Crown - Topic 7170 ].

Crown - Topic 7209.1

Examination of public documents - Freedom of information - Bars - Information obtained in lawful investigations (incl. crimes and national security) - [See third Crown - Topic 7170 ].

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - The Federal Court stated that "When a Court is called upon to review a government institution's decision not to disclose personal information, it must undertake a two-step process. It must first determine if the information sought falls within the description of the exempt information under the applicable provision of the [Privacy] Act, and this first portion is reviewable under the standard of correctness. If found to be correct then the Court must determine whether the government institution has appropriately exercised its discretion not to disclose the information in question. This second portion of the process must be reviewed following the standard of reasonableness ... If an injury assessment is required as it is for section 21 of the Act, the reasonableness standard shall apply" - See paragraph 29.

Cases Noticed:

Barta v. Canada (Attorney General), [2006] F.T.R. Uned. 911; 2006 FC 1152, refd to. [para. 29].

Leahy v. Canada (Minister of Citizenship and Immigration) (2012), 438 N.R. 280; 2012 FCA 227, refd to. [para. 29].

Bronskill v. Canada (Minister of Canadian Heritage) (2011), 395 F.T.R. 165; 2011 FC 983, refd to. [para. 33].

Ruby v. Royal Canadian Mounted Police et al., [2000] 3 F.C. 589; 256 N.R. 278 (F.C.A.), revd. [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 45].

Cemerlic v. Canada (Solicitor General) (2003), 228 F.T.R. 1; 2003 FCT 133, refd to. [para. 45].

Westerhaug v. Canada Security Intelligence Service (2009), 344 F.T.R. 55; 2009 FC 321, refd to. [para. 46].

Ruby v. Royal Canadian Mounted Police et al. (2004), 251 F.T.R. 266; 2004 FC 594, refd to. [para. 53].

Fuda v. Royal Canadian Mounted Police et al. (2003), 228 F.T.R. 274; 2003 FCT 234, refd to. [para. 53].

Del Zotto v. Minister of National Revenue (2005), 272 F.T.R. 197; 2005 FC 653, refd to. [para. 57].

Statutes Noticed:

Privacy Act, R.S.C. 1985, c. P-21, sect. 8 [para. 57]; sect. 18 [para. 43]; sect. 19(1) [para. 55]; sect. 21 [para. 56]; sect. 22(1)(a)(iii) [para. 51]; sect. 26 [para. 57].

Counsel:

Christopher D.R. Maddock, Q.C., for the applicant;

Tracey McCann and R. Keith Reimer, for the respondent.

Solicitors of Record:

Christopher D.R. Maddock, Q.C., for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on February 12 and 19, 2014, at Ottawa, Ontario, and Vancouver, British Columbia, before Noël, J., of the Federal Court, who delivered the following decision on March 10, 2014.