Date: 20040416
Docket: T-1050-03
OTTAWA, Ontario, this 16th day of April, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
COREY NASH
Applicant
- and -
THE SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to section 41 of the Privacy Act, R.S.C. 1985, c. P-21 ("Privacy Act") wherein the applicant seeks access to information held by Correctional Service Canada ("CSC") regarding a "threat risk assessment" investigation conducted for the benefit of the applicant.
FACTS
[2] The applicant is a parole officer at Stony Mountain Institution ("SMI") in Manitoba. On May 31, 2001, an Institutional Preventive Security Officer, Mr. Tim Van Der Hoek, received confidential information of an "alleged threat" made by an inmate who harbored a grudge against the applicant. The inmate had allegedly made plans with persons in the local community to have the applicant assaulted. Based on the confidential information, Officer Van Der Hoek completed a Security Intelligence Report.
The Investigation
[3] On June 8, 2001, SMI began an investigation into the alleged threat. The Royal Canadian Mounted Police, Stonewall detachment and the Winnipeg local police were informed and provided with copies of the Security Intelligence Report. On June 25, 2001, the CSC Regional Fact Finding Board began a "threat risk assessment" investigation for the benefit of the applicant. It found the information from the confidential source was of little or no credibility, and based on all the evidence gathered, it was unlikely the alleged threat would be carried out against the applicant or his family. Similarly, the RCMP and local police concluded there were no grounds to complete a criminal investigation, or to take further action.
The Applicant's requests for information relating to the Threat Risk Assessment
[4] Pursuant to the Privacy Act, CSC released information to the applicant on three separate occasions which are as follows:
1. On December 13, 2001, CSC released certain documents to the applicant pursuant to subsection 12(1) of the Privacy Act which provides:
| Right of access
12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act has a right to and shall, on request, be given access to
(a) any personal information about the individual contained in a personal information bank; and
(b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.
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Droit d'accès
12. (1) Sous réserve des autres dispositions de la présente loi, tout citoyen canadien et tout résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés ont le droit de se faire communiquer sur demande :
a) les renseignements personnels le concernant et versés dans un fichier de renseignements personnels;
b) les autres renseignements personnels le concernant et relevant d'une institution fédérale, dans la mesure où il peut fournir sur leur localisation des indications suffisamment précises pour que l'institution fédérale puisse les retrouver sans problèmes sérieux.
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The applicant had requested the following:
a) a copy of the draft Regional Fact Finding Board Threat Risk Assessment on a parole officer at Stony Mountain Institution, No. 3100-16-01-06-18-510(F), provided for the applicant's review on August 28, 2001;
b) a copy of the final report, noted above, if one exists;
c) a copy of all information received in order to have the above assessment completed; and,
d) a copy of all information used to complete the above assessment.
The released documents appear at pages 302 to 436 of Exhibit "A" of the Affidavit of Judy Bray, filed confidentially with this Court, pursuant to the Direction of Prothonotary Hargrave, dated July 23, 2003.
2. Following the December 13, 2001 release, the applicant made a complaint to the Office of the Privacy Commissioner pursuant to subsection 29(1)(b) of the Privacy Act which reads:
| Receipt and investigation of complaints
29. (1) Subject to this Act, the Privacy Commissioner shall receive and investigate complaints
[...] (b) from individuals who have been refused access to personal information requested under subsection 12(1);
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Réception des plaintes et enquêtes
29. (1) Sous réserve des autres dispositions de la présente loi, le Commissaire à la protection de la vie privée reçoit les plaintes et fait enquête sur les plaintes :
[...] b) déposées par des individus qui se sont vu refuser la communication de renseignements personnels, demandés en vertu du paragraphe 12(1);
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In response to the Privacy Commissioner's investigation, CSI released additional documents and information to the applicant on November 8, 2003, which are found on pages 132 to 301 of the confidential Affidavit of Judy Bray.
3. Following the November 8, 2002 release, the applicant made a second complaint to the Office of the Privacy Commissioner. This complaint resulted in the release of additional information on January 9, 2003, which are found on pages 5 to 131 of the confidential Affidavit of Judy Bray.
[5] Prior to all three releases, CSI redacted certain information pursuant to section 26 of the Privacy Act which provides:
| Information about another individual 26. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) about an individual other than the individual who made the request, and shall refuse to disclose such information where the disclosure is prohibited under section 8.
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Renseignements concernant un autre individu
26. Le responsable d'une institution fédérale peut refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) qui portent sur un autre individu que celui qui fait la demande et il est tenu de refuser cette communication dans les cas où elle est interdite en vertu de l'article 8.
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Section 8 of the Privacy Act limits the disclosure of personal information as follows:
| Disclosure of personal information
8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section. |
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Communication des renseignements personnels
8. (1) Les renseignements personnels qui relèvent d'une institution fédérale ne peuvent être communiqués, à défaut du consentement de l'individu qu'ils concernent, que conformément au présent article. |
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Section 3 of the Privacy Act defines "personal information" as:
| "personal information" means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
(a) information relating to the ...age... of the individual,
(b) information relating to the ...criminal... history of the individual...,
(c) any identifying number, symbol or other particular assigned to the individual,
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(e) the personal opinions or views of the individual except where they are about another individual...,
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(g) the views or opinions of another individual about the individual,
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(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
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« renseignements personnels » Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment :
a) les renseignements relatifs... à son âge...;
b) les renseignements relatifs... à son casier judiciaire...;
c) tout numéro ou symbole, ou toute autre indication identificatrice, qui lui est propre;
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e) ses opinions ou ses idées personnelles, à l'exclusion de celles qui portent sur un autre individu...;
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g) les idées ou opinions d'autrui sur lui;
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i) son nom lorsque celui-ci est mentionné avec d'autres renseignements personnels le concernant ou lorsque la seule divulgation du nom révélerait des renseignements à son sujet;
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The redacted information comprised the identification of inmates, inmates' Finger Print Section numbers, their criminal histories, and other personal details about persons other than the applicant.
[6] Following the three releases outlined above, the applicant made a further complaint to the Office of the Privacy Commissioner. The Privacy Commissioner found that although the applicant's complaint had been well-founded, the release of additional information by CSC had satisfied any duty owed to the applicant with respect to right of access to personal information, and that the matter was now resolved.
[7] The applicant then commenced this application to the Federal Court to review the matter.
ANALYSIS
[8] The issue in this application is whether CSC properly withheld the information requested by the applicant pursuant to the Privacy Act. The applicant submits that the information released by CSC does not support the conclusions of the CSC Fact Finding Board Threat Risk Assessment Report. The applicant submits that he does not seek access to the identity of the informant in his case, but seeks the substance of the interviews in order to determine if the conclusions of the Fact Finding Board can be justified.
[9] The respondent submits that the personal information withheld from the applicant cannot be released without the consent of the individuals to whom the information relates. The respondent contends that the applicant is not entitled to the information since it is not personal information about himself. The respondent submits that all other information requested by the applicant has already been disclosed to him.
[10] This application under the Privacy Act is not a review of the CSC's Threat Risk Assessment Report concerning the applicant. A section 41 Privacy Act application requires the Court to engage in a detailed review of the documents at issue, and to determine if either mandatory or discretionary exemptions have been properly applied by the head of the institution in control of the documents at issue, see Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (T.D.); Rubin v. Canada (Minister of Health) (2001), 210 F.T.R. 84 (T.D.); and Richards v. Canada (Minister of National Revenue - M.N.R.), [2003] F.C.J. No. 1918 (T.D.).
[11] After a detailed review of the confirmed evidence on record, and the submissions of the parties, I conclude that CSC has properly withheld personal information about persons other than the applicant. Before this application was filed, CSC had already released the following requested documents to the applicant:
a) four draft copies of the Threat Risk Assessment;
b) the final copy of the Threat Risk Assessment;
c) the final findings of the Regional Fact Finding Board (without any confidential information deleted);
d) the CSC Security Intelligence Report, dated May 31, 2001 (without any confidential information deleted);
e) the CSC Officer's Statement of Observation Report, completed by IPSO Tim Van Der Hoek, dated March 12, 2002; and
f) 40 pages of interview notes and other handwritten notes, found at pages 268 - 301, and pages 431 - 436 of the confidential affidavit of Judy Bray.
[12] I have reviewed these documents and find much of the information which had been deleted previously, as confidential, in certain documents, was made available to the applicant.
[13] The applicant submits that he does not seek access to the identity of the informant in his case, but seeks the substance of the informant's interviews and other interviews which must have been conducted to support the conclusions in the Treat Risk Assessment Report. He alleges interview notes exist and the respondent has improperly refused to disclose them. I have reviewed the confidential Affidavit of Judy Bray and the confidential documents attached and find there is nothing to support the applicant's allegation. I find the applicant merely speculates such interview notes exist because he does not accept the results of the CSC Fact Finding Board's investigation of his case.
[14] Apart from the confidential Affidavit of Judy Bray, I am also persuaded by the sworn testimony of Barry Iles, Privacy Analyst with the Government of Canada. His affidavit states that any interview notes that exist have been provided to the applicant. Furthermore the Privacy Commissioner, after a thorough investigation of the applicant's complaints, concluded that all existing notes had been disclosed to the applicant. The Privacy Commissioner's final response to the applicant, dated April 28, 2003, states in part:
With regard to your claim that CSC did not supply all interview notes, we established that CSC did not conduct extensive interviews with every individual whose names [sic] appeared in the report and therefore in some instances very few, if any, notes were taken. I am satisfied as a result of our inquiries that all notes and transcripts taken during CSC's assessment of the threat risk were sent to the Prairie Regional Office at the conclusion of the fact finding exercise and that these notes were released to you.
In order to be satisfied that CSC had retrieved all personal information that would be deemed relevant to your access request, we also asked it to check all its records in Personal Information Bank PSE 911(Discipline). As a result of those efforts, CSC located some information about you, but this constituted duplicate copies of information already provided to you. [emphasis added]
[15] Since I have concluded that the interview notes sought by the applicant are non-existent, and the redacted information is properly withheld because it relates to personal information about persons other than the applicant, this application must be dismissed.
ORDER
THIS COURT ORDERS THAT:
This application under section 41 of the Privacy Act is dismissed.
"Michael A. Kelen" _______________________________
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1050-03
STYLE OF CAUSE: Corey Nash v. The Solicitor General of Canada
and the Privacy Commissioner
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: April 5, 2004
REASONS FOR ORDER
AND ORDER BY : THE HONOURABLE MR. JUSTICE KELEN
DATED: April 16, 2004
APPEARANCES:
Corey Nash FOR THE APPLICANT
Litigant in Person
Tracy King FOR THE RESPONDENT
Department of Justice
SOLICITORS OF RECORD:
Litigant in Person FOR THE APPLICANT
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada