Edmonton (City) v. Information and Privacy Commissioner (Alta.) et al., (2016) 616 A.R. 329

• Judge: Slatter, McDonald and Bielby, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 06, 2016
• Citations: (2016), 616 A.R. 329;2016 ABCA 110

Edmonton v. Privacy Commr. (2016), 616 A.R. 329; 672 W.A.C. 329 (CA)

MLB headnote and full text

Temp. Cite: [2016] A.R. TBEd. AP.057

The City of Edmonton (appellant/applicant) v. Office of the Information and Privacy Commissioner and H.M. Louise McCloskey (respondents/respondents)

(1503-0125-AC; 2016 ABCA 110)

Indexed As: Edmonton (City) v. Information and Privacy Commissioner (Alta.) et al.

Alberta Court of Appeal

Slatter, McDonald and Bielby, JJ.A.

April 14, 2016.

Summary:

The City of Edmonton applied for judicial review of decisions by an adjudicator appointed by the Information and Privacy Commissioner in Order F2013-53. The Order concerned a request by the applicant under Alberta's Freedom of Information and Protection of Privacy Act (FOIPPA) for access to certain records in the City's custody or control. The adjudicator found that: (a) the information requested was "personal information" under s. 1(n) of FOIPPA and not "general information" (i.e., non-personal information) as it had been characterized by the City; (b) under s. 93(2) of FOIPPA, the City was not entitled to charge a $25 initial fee for the information because the applicant had requested personal information and the applicant only had to pay fees for the production of copies; (c) the City failed to respond to the applicant openly, accurately, and completely, as required by s. 10 of FOIPPA; and (d) the City, which had withheld information from the applicant under s. 17(i) of FOIPPA, failed to comply with that subsection because it failed to disclose the provisions of s. 17(i) on which it relied. The adjudicator also found that the City had failed to comply with s. 11 of FOIPPA by failing to make every reasonable effort to respond to the applicant's request within 30 days after receiving it. The City did not apply for review of this decision.

The Alberta Court of Queen's Bench, in a decision reported at (2015), 614 A.R. 343, dismissed the application. The City had not established that the adjudicator's decisions were unreasonable. The decisions fell within the range of possible, acceptable outcomes and were defensible in respect of both the facts and the law. The adjudicator's reasons were transparent and intelligible and justified the decisions made. The City appealed.

The Alberta Court of Appeal allowed the appeal in part and set aside a portion of the adjudicator's decision. The finding that the City had breached s. 10 of the FOIPP Act was unreasonable. The adjudicator's conclusions on the scope of the term "personal information", the resulting payment of fees, and the need for further particulars about the application of s. 17 were reasonable. The court awarded no costs of the appeal.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - The City of Edmonton applied for judicial review of decisions by an adjudicator appointed by the Information and Privacy Commissioner in Order F2013-53 - The Order concerned a request by the applicant under Alberta's Freedom of Information and Protection of Privacy Act for access to certain records in the City's custody or control - A chambers judge dismissed the application - The City appealed - The Commissioner argued that the City had no standing to bring the appeal because the City was a "statutory decision maker" - The Alberta Court of Appeal held that the City had standing - The court stated that "The City is not the tribunal in this case, but is rather the public body that is subject to obligations under the ... Act. It is subject to the jurisdiction of and regulatory control by the Commissioner, which is the statutory tribunal involved. As such, the City has a right to seek judicial review of the decision of the Commissioner, and has full rights to appeal from the judicial review decision." - See paragraph 21.

Crown - Topic 7101.2

Examination of public documents - General - Public body's duty to assist - The City of Edmonton appealed from decisions holding that it did not properly or adequately discharge its obligations to provide access to records under the Freedom of Information and Protection of Privacy Act (s. 10) - The Alberta Court of Appeal held that this finding was unreasonable - "While there are two components to s. 10 ('failure to assist', and 'openly, accurately and completely'), the section should be interpreted as reflecting a single underlying obligation of the public body to be proactive in performing its duties under the ... Act. Section 10 does not impose any absolute obligations, and only requires 'every reasonable effort'. The adjudicator did not examine whether the City's compliance with [the applicant's] request was the result of 'every reasonable effort', and appears to have assumed that s. 10 was breached just because the adjudicator disagreed with the City's decision on disclosure. ... The requirement of s. 10 that the public body must assist the applicant cannot reasonably mean that the public body must be right in law every time. The requirement that disclosures must be 'accurate' reasonably relates to the thoroughness of the search, the production of the documents requested, and the minimization of production of un-requested documents. Further, just because the Commissioner subsequently decides that the public body has not properly responded to the request does not automatically mean that there has been a failure to apply 'every reasonable effort'. ... The City thought, at the time, that it was responding to the complaint as it was clarified. The real dispute was over whether documents about 'property' could be 'personal information' if they had a 'personal dimension' to them. The City may have been wrong in law, but the disclosure was not 'inaccurate or incomplete' and it cannot be said to have arisen from a failure to use 'all reasonable efforts'. Those terms reasonably apply to searches that are not sufficiently intensive or that otherwise fail to discover records that meet the request. ... The adjudicator's conclusion that the City's production was inaccurate or incomplete was at best premature. Until the decision of the adjudicator was received, the City did not know exactly what it was supposed to be looking for. Once the scope of production is clarified by the reasons of this Court, the City must disclose the appropriate documents. Only when that disclosure is completed will it be possible to evaluate the quality of the production." - See paragraphs 37 to 53.

Crown - Topic 7101.2

Examination of public documents - General - Public body's duty to assist - The City of Edmonton appealed from decisions holding that it did not properly or adequately discharge its obligations to provide access to records under the Freedom of Information and Protection of Privacy Act (s. 10) - One issue respected s. 29(1)(a.1) of the Act, which indicated that a public body may refuse to disclose information that is available for purchase - The adjudicator held that this provision did not justify the City's refusal to produce documents that were available from Sustainable Development, because the Act represented a "complete system", and had to be complied with on every occasion - The Alberta Court of Appeal held that this finding was not available on the facts or the law - The presence of s. 29(1)(a.1) made it clear that in this particular context the Act was not a "complete system", and did not have to be complied with "on every occasion" - The court stated that "The adjudicator's interpretation essentially negates the effect of this provision. On the other hand, the finding that the possible purchase of documents from Sustainable Development was not a complete alternative because it only went back one year was reasonably available on the facts and the law." - See paragraph 55.

Crown - Topic 7101.2

Examination of public documents - General - Public body's duty to assist - The City of Edmonton appealed from decisions holding that it did not properly or adequately discharge its obligations to provide access to records under the Freedom of Information and Protection of Privacy Act (s. 10) - The adjudicator concluded, inter alia, that even though a public body might decline to produce information because the fee had not been paid, the public body could not "ignore that part of the request" even if the fee was not paid - The Alberta Court of Appeal held that "If taken too far, this interpretation is ... not available on the facts and the law. It would be reasonable to take the position that a public body that received a request without the fee could not simply discard or ignore the request. One could reasonably expect that the public body would at least tell the citizen that the request would not be processed until the fee was paid. However, it is unreasonable to suggest that the public body must carry out the search and produce the documents requested even though the fee is not paid. Section 93 entitles the public body to request a fee in some circumstances, and if the fee is not paid the public body need not proceed further." - In the present case, the City did not "ignore the request" when it arrived without a fee; contact was made with the applicant to acknowledge receipt of the request and advise of the City's position that a fee was payable - This could not reasonably be characterized as a failure to assist - See paragraphs 56 and 57.

Crown - Topic 7102

Examination of public documents - Freedom of information - General - Test for disclosure - [See first Crown - Topic 7170 ].

Crown - Topic 7161

Examination of public documents - Freedom of information - Legislation - General - Interpretation - [See first and second Crown - Topic 7101.2 and second Crown - Topic 7170 ].

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - The applicant made a request for "personal information" under the the Freedom of Information and Protection of Privacy Act - The Alberta Court of Appeal stated that where the information related to property, but also had a "personal dimension", it might sometimes properly be characterized as "personal information" - In this case, the essence of the request was for complaints and opinions expressed about the applicant - The adjudicator's conclusion that this type of request was "personal", relating directly as it did to the conduct of the citizen, was one that was available on the facts and the law - The core of the personal information in this case was "complaints", and particularly complaints about how the applicant dealt with her property - Exactly where to draw the line between (a) documents that were about the "complaint", and (b) those dealing with the processing of that complaint that were merely about the "property" was complex and imprecise - The way the adjudicator drew the line in this case was not unreasonable - It did not involve the disclosure of sensitive, confidential, or privileged information - The complaints against the applicant and the related opinions of her neighbours about her reasonably fell within the definition of "personal information", even though some of the conduct underlying the complaints related to her property - See paragraphs 22 to 28.

Crown - Topic 7170

Examination of public documents - Freedom of information - Legislation - Disclosure - Personal information - Sections 93(1) and 93(2) of the Freedom of Information and Protection of Privacy Act provided that "(1)The head of a public body may require an applicant to pay to the public body fees for services as provided for in the regulations. (2) Subsection (1) does not apply to a request for the applicant's own personal information, except for the cost of producing the copy." - An adjudicator appointed by the Information and Privacy Commissioner concluded that the entitlement to a fee was triggered by the scope of the request, not by the actual contents of the documents that might be discovered during the search - The Alberta Court of Appeal held that this interpretation was available on the facts and the law - See paragraphs 29 to 31.

Crown - Topic 7172

Examination of public documents - Freedom of information - Legislation - Application fees - [See second Crown - Topic 7170 ].

Crown - Topic 7202

Examination of public documents - Freedom of information - Bars - Interpretation - [See third Crown - Topic 7101.2 ].

Crown - Topic 7206

Examination of public documents - Freedom of information - Bars - Personal information - The City of Edmonton redacted certain documents in order to protect the privacy interests of third parties as required by s. 17 of the Freedom of Information and Protection of Privacy Act - An adjudicator appointed under the Act directed the City to provide further details about how the decision to limit document production was made before deciding if disclosure was complete - The City argued that the provisions of s. 17 were mandatory, and that it was unreasonable for the adjudicator to require any further explanation - The Alberta Court of Appeal rejected the argument - "The Commissioner has the duty to resolve disputes about the production of documents. The Commissioner cannot fairly exercise its obligation to review the decisions of public bodies without knowing the basis on which production is made or refused. Section 17 is a very lengthy section, with many different provisions in it. Further, where there are different reasons for refusing disclosure of different parts of the document, the adjudicator is entitled to know which is relied on before making a decision." - See paragraphs 32 to 36.

Crown - Topic 7246

Examination of public documents - Freedom of information - Judicial review and appeals - Standard of review - The Alberta Court of Appeal held that decisions of the Information and Privacy Commissioner arising from an interpretation or application of the Freedom of Information and Protection of Privacy Act were subject to a reasonableness standard of review - The chambers judge's selection of the standard of review and the application of that standard were reviewed for correctness - See paragraphs 19 and 20.

Municipal Law - Topic 1320

Freedom of information and protection of privacy - Disclosure of personal information (incl. email) - [See Crown - Topic 7206 ].

Words and Phrases

Personal information - The Alberta Court of Appeal discussed the meaning of this phrase as found in s. 1(n) of the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25 - See paragraphs 22 to 28.

Counsel:

D.S. Woo, for the appellant;

K.L. Hurlburt, Q.C., for the respondent, Office of the Information and Privacy Commissioner;

H.M. Louise McCloskey, the respondent, in person.

This appeal was heard on April 6, 2016, by Slatter, McDonald and Bielby, JJ.A., of the Alberta Court of Appeal, who delivered the following memorandum of judgment on April 14, 2016.