Date: 19980624 Docket: A980731 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE MATTER OF THE JUDICIAL REVIEW PROCEDURE ACT, R.S.B.C. 1996, C. 241 BETWEEN: FRANCIS MAZHERO PETITIONER AND: THE INFORMATION AND PRIVACY COMMISSIONER OF BRITISH COLUMBIA and CITY OF VANCOUVER RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE TYSOE Counsel for the Petitioner: Gerald Fahey Counsel for the Respondent, The Information and Privacy Commissioner of British Columbia: Susan E. Ross Counsel for the Respondent, City of Vancouver: Patsy J. Scheer Counsel for the Intervenor, Attorney General of British Columbia: Neena Sharma Dates and place of hearing: June 4 and 5, 1998 Vancouver, B.C. [1] The Petitioner, Francis Mazhero, applies for judicial review of two decisions of The Information and Privacy Commissioner of British Columbia (the "Commissioner"). City of Vancouver (the "City") was joined as a Respondent by a consent order at the commencement of the hearing. The Attorney General of British Columbia intervened pursuant to section 8 of the Constitutional Question Act with respect to the Petitioner's argument based on section 7 of the Canadian Charter of Rights and Freedoms. BACKGROUND FACTS [2] Dr. Mazhero, who is an educational consultant, was hired by the City in November 1994 to work at the Carnegie Community Centre. His employment was terminated in May 1995 in circumstances which I gather were somewhat controversial. [3] Dr. Mazhero's union filed a grievance in respect of his termination. The grievance was scheduled for an arbitration hearing but it was withdrawn by the union shortly before the hearing was scheduled to take place. I am advised by counsel that Dr. Mazhero has lodged a complaint against his union with the Labour Relations Board and that he requires documents in the possession of the City for the purpose of this complaint. [4] In 1995 Dr. Mazhero made certain requests of the City for information pursuant to the Freedom of Information and Protection of Privacy Act (the "Act"). The City obtained an order from the Commissioner authorizing it to withhold certain third party information from Dr. Mazhero. [5] Dr. Mazhero made a further 17 requests for information from the City from June 16, 1997 to October 22, 1997. Some of the requests related specifically to Dr. Mazhero's grievance (e.g., copies of the City's correspondence with the union and the arbitrator). Some of the requests related to arbitrations involving the City generally (e.g., statistical information on all grievances between 1992 and 1996 involving Dr. Mazhero's union). Some of the requests related to people who were related to Dr. Mazhero's employment (e.g., a list of all payments made by the City to the person who was the Director of Carnegie Community Centre at the time Dr. Mazhero was employed at the Centre). Some of the requests were frivolous (e.g., one of the documents disclosed to Dr. Mazhero was a fax cover sheet from the Director of Carnegie Centre to the City Manager which, in an apparent attempt to be humorous, was signed by the Director with the notation "Love and kisses". Dr. Mazhero requested all documents sent by any City employee to the City Manager during the previous five years which contained the words "Love and kisses"). [6] By letter dated November 10, 1997, at a time when the City had responded to 13 of the 17 requests, the City made an application to the Commissioner for an authorization under section 43 of the Act permitting the City to disregard all past, present and future requests from Dr. Mazhero related to his grievance or to any individuals connected with his grievance, as well as records of the Carnegie Centre. Section 43 reads as follows: If the head of a public body asks, the commissioner may authorize the public body to disregard requests under section 5 that, because of their repetitious or systematic nature, would unreasonably interfere with the operations of the public body. [7] The City's submission to the Commissioner in support of its application was accompanied by an affidavit sworn by the City's Manager of Information and Privacy. The affidavit detailed Dr. Mazhero's requests made in 1997 and the effort required to be expended by City employees in dealing with the requests. The Manager of Information and Privacy estimated that he had spent 100 hours dealing with the requests up to that time and that he would have to spend another 100 hours responding to Dr. Mazhero's remaining requests. Other City employees spent time locating and retrieving records, but they did not keep a record of their time. In the submission itself, the City asserted that Dr. Mazhero was not acting in good faith and that his actions were bringing the Act into disrepute. Dr. Mazhero was notified of the City's application and he made extensive written submissions to the Commissioner. [8] During the period of time the Commissioner was dealing with the City's application, Dr. Mazhero wrote a letter dated December 15, 1997 to the City taking the position that it had withheld a number of records, including information in a file in the custody of the lawyer who acted for the City in connection with Dr. Mazhero's grievance. The City responded to Dr. Mazhero stating that it had not withheld records from him and that it would treat his letter as a new freedom of information request. The City did not respond to this request within the 30-day time period prescribed by the Act. By letter dated January 16, 1998, Dr. Mazhero requested the Commissioner to look into the matter. [9] On January 29, 1998 the Commissioner issued his decision on the City's application. He found that the access requests of Dr. Mazhero to the City were repetitious, systematic, and unreasonably interfered with the operations of the City. The Commissioner noted the City's position that Dr. Mazhero was not acting in good faith but he did not make any finding in that regard. The Commissioner authorized the City to disregard all past, present and future requests from Dr. Mazhero for records related to the handling of his grievance, or about any individuals connected with the grievance, as well as for records of, or related to, the Carnegie Centre. [10] On February 2, 1998 an officer in the Commissioner's office wrote Dr. Mazhero to advise him that no file would be opened with respect to his January 16, 1998 letter because there was no issue to review in light of the Commissioner's authorization permitting the City to disregard all requests from him. ISSUES [11] In this judicial review Dr. Mazhero challenges the Commissioner's authorization dated January 29, 1998 and the decision of the Commissioner's office dated February 2, 1998 declining to undertake a review of the City's failure to respond to the request contained in Dr. Mazhero's letter dated December 15, 1997. [12] The issues raised by counsels' submissions are as follows: (a) What is the appropriate standard of review applicable to a decision of the Commissioner under section 43 of the Act? (b) Did the Commissioner exceed his jurisdiction in his interpretation and application of section 43 of the Act in making the authorization? (c) Was the Commissioner required to give Dr. Mazhero an oral hearing with respect to the City's application for the authorization? (d) Did the authorization violate Dr. Mazhero's rights under section 7 of the Charter? (e) Was the Commissioner required to conduct an inquiry into the City's failure to respond to the request contained in Dr. Mazhero's letter dated December 15, 1997? DISCUSSION (a) Standard of Review [13] Section 43 of the Act has recently received its first judicial consideration in Crocker v. The Information and Privacy Commissioner of British Columbia. In that case, two job stewards working for B.C. Transit made 58 requests for information relating to public safety and job concerns of themselves and other employees. The Commissioner issued an authorization permitting B.C. Transit to disregard all requests for access from the two job stewards for a period of one year and to deal with only one request from them at a time during the following year. [14] Coultas J. made the following holdings with respect to the standard of review applicable to authorizations under s. 43: (a) the standard of review of the Commissioner's interpretation of s. 43 is reasonableness simpliciter; (b) the standard of review of the Commissioner's interpretation of the facts is reasonableness; (c) the standard of review of the Commissioner's authorization to disregard future requests for information is correctness. Under the long-standing authority of In re Hansard Spruce Mills Limited (in Bankruptcy), I am bound by these holdings and I must follow them. (b) Application of Standard of Review [15] In Crocker, Coultas J. made another holding which I consider to be binding on me; namely, that the language of s. 43 imports a remedial power to make prospective orders. [16] Coultas J. said the following about the remedies encompassed in the Commissioner's authorization: The Commissioner fashioned two discretionary remedies. His discretion is not completely unfettered. The remedy must redress the harm to the public body seeking the authorization. If the remedy is wholly disproportionate to the harm inflicted, it may be set aside. In my respectful opinion, the authorization to BC Transit to disregard all requests for information by these Petitioners for one year was wholly disproportionate and clearly wrong. That authorization prevents the Petitioners themselves from accessing personal information. The Act contemplates that individuals will have free and full access to their own personal information, subject only to the express limitation in s. 19 of the Act. That said, I can conceive of circumstances where requests for information, including personal information, should be prevented by invoking s. 43, because the requests are made habitually, persistently and in bad faith, or are clearly frivolous and vexatious. The Commissioner has not so characterized these Petitioners' requests. He has done so, however, in other cases in which he has invoked s. 43. (pp. 31-2) [17] Counsel for Dr. Mazhero stressed the distinction between requests for personal information and requests for general information. He argued that Crocker stands for the proposition that a prerequisite for a s. 43 authorization allowing a public body to disregard requests for personal information is a finding that the requests were made habitually, persistently and in bad faith or that the requests are clearly frivolous and vexatious. While I concur that there is an important distinction between requests for personal information and requests for general information, I do not agree that Crocker stands for such a broad proposition. Coultas J. was not purporting to stipulate the criteria which must exist before an authorization relating to requests for personal information may be made. Rather, he was merely giving examples of circumstances where an authorization for the public body to disregard future requests for information may be warranted. [18] The prerequisites for the Commissioner exercising his discretion under s. 43 are found in the section. There must have been requests for information of a repetitive or systematic nature which have unreasonably interfered or would unreasonably interfere with the operations of the public body. There is no prerequisite that the requests be made in bad faith or be frivolous and vexatious. [19] Once the prerequisites under s. 43 have been found to exist, the Commissioner may fashion a remedy. In Crocker, Coultas J. stated that the remedy must not be wholly disproportionate to the harm inflicted and he held that an authorization for the public body to disregard all requests for information, including requests for personal information, for a period of one year was wholly disproportionate. He stated that he would have remitted the matter back to the Commissioner had the first year not already expired by the time of his decision. Coultas J. also held that the remedy fashioned by the Commissioner for the second year of the authorization was appropriate. [20] I have alluded to the distinction between requests for personal information and requests for general information. The distinction is first made in section 2 of the Act which lists the purposes of the Act: The purposes of this Act are to make public bodies more accountable to the public and to protect personal privacy by (a) giving the public a right of access to records, (b) giving individuals a right of access to, and a right to request correction of, personal information about themselves, (c) specifying limited exceptions to the rights of access, (d) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and (e) providing for an independent review of decisions made under the Act. Division 2 of Part 2 of the Act contains ten sections setting out the exceptions to the rights of access. Most of these sections relate to general information, and not personal information. The principal section dealing with personal information is s. 19 which authorizes a public body to refuse disclosure of personal information about the applicant if the disclosure could reasonably be expected to result in immediate and grave harm to the applicant's safety or mental or physical health. [21] It makes imminent sense to have more restrictions on access to general information than on access to personal information. In dealing with general information, the Act must balance the objective of giving the public access to records of public bodies against other legitimate objectives, such as the privacy of personal information of other persons and confidentiality of governmental or business interests. These latter objectives do not generally apply to personal information about the applicant because there are no privacy or confidentiality concerns in releasing to an applicant personal information of that applicant. [22] In addition, an applicant has a right akin to an ownership right in personal information about himself or herself, but no such right can be asserted in general information. This was recognized by the Supreme Court of Canada in R. v. Dyment: Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force put it (p. 13): "This notice of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit." (p. 429) [23] Special recognition is also given to personal information in other sections of the Act. For example, s. 31 requires a public body using an individual's personal information to make a decision affecting the person to retain the information for at least one year so that he or she can obtain access to it. [24] I believe that Coultas J. gave effect in Crocker to the distinction between requests for personal information and requests for general information. He held that, in the absence of extenuating circumstances, it was wholly disproportionate for the Commissioner to authorize the public body to disregard all future requests for information. In so holding, it appears that he was mostly concerned about personal information. [25] There is another distinction which is very important to a consideration of s. 43; namely, whether the request is pending or is one which has not yet been made. In Crocker, Coultas J. held that s. 43 empowers the Commissioner to make prospective authorizations. However, in making a prospective authorization, the Commissioner must bear in mind the objective of s. 43, which is to avoid requests that constitute an unreasonable interference with the operations of the public body. [26] When the Commissioner is dealing with a pending request for information, he is in a position to determine that the pending request and the previous requests of the applicant are repetitive or systematic in nature and unreasonably interfere with the operations of the public body. If he concludes that these criteria of s. 43 have been met, it would be entirely appropriate for him to authorize the public body to disregard the pending request. [27] The situation is different, however, when the Commissioner is dealing with future requests. One cannot predict with any certainty that a request which has not yet been made will unreasonably interfere with the operations of the public body. It would not be appropriate to effectively deprive an applicant from the right to make future requests which would not unreasonably interfere with the operations of the public body. [28] However, in my view, there will be situations where it would be appropriate for the Commissioner to authorize a public body to disregard all future requests for general information where the applicant has so abused his or her right of access to records that the Commissioner is able to conclude with reasonable certainty from the nature of the previous requests that any future request by the applicant would unreasonably interfere with the operations of the public body. Coultas J. gave potential examples of such situations in Crocker when he referred to applicants making repeated requests in bad faith or making frivolous and vexatious requests. But only in very exceptional circumstances would it be appropriate, in my view, for the Commissioner to authorize a public body to disregard all future requests for personal information (or a type of personal information). [29] As a general rule, even though the Commissioner has determined that the repetitive or systematic nature of past and pending requests represents an unreasonable interference with the operations of the public body, he should not generally authorize a public body to disregard all future requests for records (or a type of records) without regard to whether any such requests will unreasonably interfere with the operations of the public body. As stated by Coultas J. in Crocker, the remedy fashioned by the Commissioner must redress the harm to the public body seeking the authorization. In attempting to minimize such harm, it is too drastic to authorize the public body to disregard all future requests for records (or a type of records) when it is not known whether any such requests will cause unreasonable interference with the operations of the public body. This is especially so when the requests relate to personal information for two reasons. First, personal information is more restricted by its nature and it is less likely that a request for personal information will unreasonably interfere with the operations of the public body. Second, the applicant has a stronger claim to have access to records of a personal nature than to general records. [30] An appropriate remedy in respect of future requests would be to authorize the public body to disregard such requests in specified circumstances. An example of such a remedy is the one which Coultas J. found acceptable in Crocker; namely, that the public body was required to deal with only one request at a time. Another example would be to authorize the public body to disregard a request for records if it would take the staff of the public body more than a specified number of hours to comply with the request. I have no doubt that there are other ways to describe circumstances that would allow the public body to disregard future requests which would be likely to unreasonably interfere with its operations. It should also be borne in mind that if the authorization is not adequate in describing circumstances which would permit the public body to disregard a future request which it believes will unreasonably interfere with its operations, the public body may again apply under s. 43 for an authorization to disregard that request. [31] In the present case, the Commissioner concluded that the access requests made by Dr. Mazhero were repetitious, systematic and unreasonably interfered with the operations of the City. It was reasonable for the Commissioner to have authorized the City to disregard all pending requests from Dr. Mazhero and there is no basis for setting aside the authorization as it pertains to pending requests. However, the Commissioner exceeded his jurisdiction by authorizing the City to generally disregard future requests from Dr. Mazhero without regard to whether any such future requests would unreasonably interfere with the operations of the public body. [32] In the result, I set aside the portion of the Commissioner's authorization permitting the City to disregard future requests for records from Dr. Mazhero and I remit the matter back to the Commissioner in this regard. I should add that I am not foreclosing the Commissioner from concluding that Dr. Mazhero has so abused his right of access to records that any future request by Dr. Mazhero for general information would unreasonably interfere with the operations of the City. (c) Right to an Oral Hearing [33] Counsel for Dr. Mazhero argued that to the extent that the Commissioner made a finding of bad faith against Dr. Mazhero, such a finding was not made in accordance with the principles of natural justice because he was not afforded an opportunity to make oral submissions. [34] It is not necessary to deal with this argument because the Commissioner did not make a finding of bad faith against Dr. Mazhero. (d) Section 7 of the Charter [35] Counsel for Dr. Mazhero argued that s. 7 of the Charter gives a constitutional right of privacy and that one aspect of the right is the ability to know what information is possessed by a public body in order to check the accuracy, relevance and uses made of the information. [36] In view of the fact that I have remitted back to the Commissioner the matter of future requests for personal information, I do not propose to deal with this argument because I believe that the issue is moot. There is liberty to apply if any of the parties do not think that it is moot. (e) The December 15, 1997 Letter [37] Although it was not expressly stated to me, I infer that the City did not respond to Dr. Mazhero's letter dated December 15, 1997 because its s. 43 application was pending. As the letter was written after the s. 43 application was made by the City, it falls within the prospective aspect of the s. 43 authorization and I have remitted that aspect back to the Commissioner. Hence, this issue may also be rendered moot. In addition, even if there has been a breach of the procedures required by the Act, this may be an appropriate case for the Court to refuse relief pursuant to s. 9 of the Judicial Review Procedure Act on the basis that no substantial wrong or miscarriage of justice has occurred, and none of the parties made submissions in that regard. Accordingly, I do not propose to deal with this issue but I grant liberty to apply to have the issue determined after further submissions. CONCLUSION [38] I set aside the s. 43 authorization as it relates to future requests by Dr. Mazhero and I remit the issue back to the Commissioner. "D. Tysoe, J." D. Tysoe, J.