Star wins 'landmark' court fight over records

Appeals court backs Star's freedom of information request
Jan 14, 2009 04:30 AM
Tracey Tyler

Municipal government institutions must produce any electronically stored information the public has a right to see, even if it requires using their technical expertise to develop new software, the Ontario Court of Appeal has ruled.

In a 3-0 decision yesterday, the court ordered the Toronto Police Services Board to respond "immediately" to requests from Star reporter Jim Rankin for information stored in two electronic databases, documenting contacts between citizens and police.

Yesterday's decision marks the first time the court has ruled on the scope of the public's and the media's right to access electronic records held by municipal government institutions through freedom of information requests, said Tony Wong, a lawyer representing the Star.

"This is an issue of substantial importance," said Wendy Matheson, a lawyer representing the Canadian Civil Liberties Association, which intervened in the case.

"In today's society, electronic recordkeeping is commonplace."

Ann Cavoukian, Ontario's Information and Privacy Commissioner, hailed yesterday's decision as a "landmark" ruling that says principles of openness and transparency apply to electronic as well as paper records in the government's possession.

Rankin began seeking the information in 2003 to test a Toronto police claim that officers do not engage in racial profiling.

Police refused the request, saying it would be time-consuming and require the use of a special computer program to replace personal information, such as names, with numbers.

Darrel Smith, a lawyer representing police, argued since the information would have to be reformatted, the databases did not meet the definition of a publicly accessible "record" under the Municipal Freedom of Information and Privacy Act.

The appeal court disagreed.

Writing on behalf of the panel yesterday, Justice Michael Moldaver said "the prevalence of computers in today's society" and their use by government institutions "as the primary means by which records are kept" must be borne in mind in determining the breadth of public access to electronically stored data.

Given those realities, the public's right to obtain this kind of information must be interpreted liberally, said Moldaver. Justices Robert Sharpe and Robert Blair agreed.

The decision quashes an earlier ruling from the Divisional Court, which, in effect, said the public can only access electronic government records if they can be produced using the kind of software the municipal institution normally relies on.

A Divisional Court panel concluded last year that Frank DeVries, an adjudicator with Ontario's Information and Privacy Commissioner, erred by failing to consider whether the police would have to reformat the information before releasing it.

The reasonableness of DeVries's decision was the central issue before the Court of Appeal. Rejecting the Divisional Court's findings, Moldaver said DeVries's reasons indicate he was well aware police would need to develop a new "algorithm" to extract the requested information and that, under the legislation, the costs could be passed along to the Star.

Significantly, Moldaver also said the Divisional Court's "narrow" interpretation of availability of electronic records fails to consider the important public policy objectives of "access to information" laws and allows governments a way to skirt requests for information. "On the Divisional Court's interpretation, access would be determined based upon the coincidence of whether the software was already in use, regardless of how easy or inexpensive it would be to develop," he said.

Speaking on behalf of the Civil Liberties Association, Matheson said the court has recognized "we are in the information age" and "from the public interest standpoint, it would be ironic and it would certainly defeat the public interest if the use of computer technology was allowed to be a barrier to access to information."

The battle isn't necessarily over. Police could still rely on other exemptions in the law as a basis for refusing to provide the information. They could also attempt to appeal to the Supreme Court of Canada.

Smith, the police lawyer, told the Star yesterday the next step will be up to the police services board.