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Keeping the Decision Record of IRB Members Secret

Background

A member of the media heard rumours that a particular member of the Immigration Refugee Board (IRB) habitually rejects the refugee claims of Muslim and Arab claimants without good reason. The journalist made access requests to the IRB for statistics about the outcomes of refugee claims cases heard by the Board member.

In response, the IRB refused to disclose the requested information, and it relied on two provisions of the Access to Information Act to justify its decision – paragraph 16(1)(c) and subsection 19(1). Paragraph 16(1)(c), the protection of law enforcement exemption, authorizes refusal to disclose information the disclosure of which could reasonably be expected to be injurious to law enforcement. Subsection 19(1), the protection of privacy exemption, authorizes refusal to disclose information about identifiable individuals.

Legal Issues

Is it justifiable to keep secret the decision record of a quasi-judicial officer on either privacy grounds or on the grounds of protection of law enforcement efforts?

The access requester pointed out that the IRB had released such statistics in the past. She could conceive of no way in which disclosure would interfere with the IRB’s work. She also argued that the decision record of a public official, especially a specialized judge, could not properly be considered the decision-maker’s personal information. The requester emphasized the importance of holding the IRB accountable through transparency of its process. Here are her words:

"As you know, failed refugee claimants in Canada are not entitled to an appeal based on the merits of their cases. Appeals to the Federal Court on the grounds that a decision contains an error of law are rarely heard, and rarely successful. It is therefore extremely important that IRB members make good decisions. The public must be able to properly scrutinize the work of those members, especially if there is a concern that a member has a pattern of making bad decisions. That requires access to the kind of information I was denied."

For its part, the IRB argued that statistics on decision outcomes could be highly misleading. If, for example, a member’s caseload consisted of claims from certain regions or specific types, skewed results (either pro-acceptance of claims or vice versa) could be perfectly normal and not indicative of any bias or arbitrariness by the decision-maker.

The IRB argued that the use by the media of previous disclosures of acceptance rates proved its point; a member was named a "refusenik" by the Globe and Mail, a claim the newspaper later retracted. Here is how the IRB expressed its concern:

"Acceptance and rejection rates appear to indicate whether decision-makers are more or less likely to accept the claims, which come before them. However, the requested statistics are highly misleading because they fail to take account of relevant factors. For example, the decision-maker named by the Globe and Mail as the member who had allegedly rejected all cases he heard in the specified time period had, in fact, heard few cases in the specified region since he works regularly in another region. Such statistics also fail to assess the types of cases assigned to decision-makers. For example, a member who works on large numbers of ‘expedited claims’ (claims which appear to be ‘manifestly founded’ from the outset) will have high positive rates while members who work on many claims from democratic nations will have high negative rates."

The Information Commissioner felt that it was entirely within the IRB’s control to provide contextual information to help requesters fully understand statistical information about the acceptance rates of IRB members. He also rejected the IRB’s concerns about "judge shopping", since the assignment of cases is entirely within the IRB’s control. For these reasons he did not accept the IRB’s contention that disclosure of acceptance rates could reasonably be expected to be injurious to the IRB enforcement of the Immigration Act.

With respect to the "personal information" exemption (subsection 19(1)), the Information Commissioner concluded that the requested information – the outcomes of quasi-judicial decision-making – is not information about the deciders; it is, rather, their "work product". He also concluded that Parliament’s intention that the requested information not receive privacy protection is made clear by the definition of "personal information". In particular, paragraph 3(j) of the Privacy Act states that information relating to the position or functions of a public official does not qualify for privacy protection. As well, subparagraph 8(2)(m)(i) of the Privacy Act authorizes the disclosure of personal information where the public interest in disclosure clearly outweighs any invasion of privacy that could result.

With respect to the matter of the public interest in disclosure, the Information Commissioner concluded that the public interest in the accountability of the IRB through transparency clearly outweighs any possible negative effects on the reputation of the Board and its members from disclosure of statistics on decision outcomes, especially when the IRB is fully able to disclose any needed contextual information to aid in the interpretation of such statistics.

The IRB agreed to disclose the requested information.

Lessons Learned

The Access to Information Act does not permit government institutions to rely on secrecy as a means of winning and keeping public respect and confidence. To the contrary, the Act fosters the accountability of government institutions through transparency. The need for disclosure is especially important when a government institution exercises quasi-judicial powers – making decisions which directly affect the rights and liberties of individuals. 

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