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Does a “Leak” Open the Door to Access?
A requester made a request to the Canada Border Services Agency (CBSA) for copies of records from its Field Operations Support System (FOSS) containing information about 125 individuals living in Canada, known to have committed, or suspected by CBSA of committing, offences in their country of origin.
Some 650 pages of records were identified by CBSA as responsive to the request. CBSA refused to disclose any indication in the records of the specifics of their concerns about the individuals. As well, it withheld the names, date of birth, departmental identification, and file numbers associated with each individual. CBSA relied on exemptions in the Act designed to protect privacy (subsection 19(1) and investigations (paragraph 16(1)(c).
The requester felt that he, and other Canadians, had a right to know the names of war criminals in Canada, especially since some such names are already in the public domain, having appeared in a newspaper report. He complained to the Information Commissioner.
Did CBSA have the legal authority under subsection 19(1) to refuse disclosure of the requested records? The requester did not complain about CBSA’s decision to rely on paragraph 16(1)(c) to withhold information to protect ongoing investigations.
The Commissioner’s investigator first made efforts to determine whether any of the withheld information was in the public domain. Paragraph 19(2)(b) of the Act authorizes disclosure of personal information if it is publicly available. In fact, some of the withheld information had appeared in the print media. The investigation confirmed, however, that the source was a report leaked from the CBSA and not released in a lawful manner. The Commissioner did not consider that an unauthorized leak of personal information could justify loss of privacy rights.
Second, the investigation considered whether there might be a public interest in disclosure clearly outweighing any privacy invasion that might result. Some of the individuals were in hiding, being pursued by an Immigration Task Force set up to determine their whereabouts and deport them to face justice in their country of origin. Some of the individuals had outstanding warrants against them. The Commissioner felt, thus, that there was a public interest in disclosure, to facilitate locating individuals who are in hiding from authorities and to assist in protecting the public from individuals who may have committed offences.
However, CBSA argued that the public interest did not "clearly outweigh" the potential negative effects from disclosure. First, some of the outstanding warrants had been issued because the individual missed a hearing or removal date and not because a criminal offence had been committed. Disclosure could subject these individuals to undeserved or unwarranted suspicion. Concern was expressed, too, that disclosure might result in civilian vigilante actions, some of which might be directed towards entirely innocent persons having the same names as those suspected of war crimes. Further, CBSA argued that the individuals do not pose a threat to the safety of Canadians - their efforts in Canada are focused on staying below the law’s radar by not committing offences in Canada.
The Information Commissioner agreed that the CBSA had carefully exercised its discretion as to whether or not this personal information should be disclosed in the public interest. On that basis, he found the complaint to be not substantiated.
When applying paragraph 19(2)(b), government institutions may consider whether the personal information is publicly available as a result of an unauthorized or improper disclosure. When it comes to protecting privacy, institutions should not exacerbate a privacy invasion resulting from a previous unauthorized disclosure, by making further disclosures under paragraph 19(2)(b) of the Act. Two wrongs do not make a right!
When institutions apply the public interest override (contained in paragraph 19(2)(c) of the Act, by reference to subparagraph 8(2)(m)(i) of the Privacy Act), they must exercise their discretion properly by considering and appropriately weighing all relevant factors for and against disclosure. If that is done, the Commissioner will not attempt to substitute his view as to what the final outcome should be.