Court decision a win for access and democracy

Fred Vallance-Jones

A three-judge panel of Ontario’s Court of Appeal has thrown out a 2007 decision that threatened to severely restrict access to electronic records in the province.

The Divisional Court ruled that the Toronto police had no obligation under FOI legislation to write a small computer program to extract data in an anonymous format. But the appeals court has thrown out that decision, and given the lower court a judicial tongue lashing in the process.

Toronto Star reporter Jim Rankin asked for two Toronto police databases, but to protect privacy requested the police replace identities of individuals with randomly generated numbers. Ontario’s information commissioner ruled in favour of the Star, but the police applied for judicial review and won.

In its decision, the Divisional Court said if an institution had to write a small computer routine, that was enough to snuff out the request. That was even though it was established practice for institutions to write small programs or queries to extract or sever data. It seemed access to electronic records in Ontario had been dealt a stunning blow.

But the appeals court has reversed all that, and underlined a few legal principles in the process.

Noting the Supreme Court of Canada’s conclusion that the “overarching purpose” of access legislation is to facilitate democracy, and pointing out the “prevalence of computers in our society and their use by government institutions as the primary means by which records are kept and information is stored,” the appeals judges said the Divisional Court had applied an overly narrow interpretation of the law. It said that that interpretation “provides government institutions with the ability to evade the public’s right of access to information…”

By underlining the importance of access legislation to democracy, and urging a liberal and expansive interpretation in the light of the importance of these laws to our democracy, the appeals court has sent an important message down the line about how it would like Ontario`s two FOI laws to be interpreted.

And while the decision is only binding in Ontario, it should be persuasive if similar cases come up elsewhere.

The decision in the Rankin case isn`t a complete victory for the Star, however. The court said Rankin–read, the Star–must still pay the police any fees required for the creation of the software routine.

So while Rankin was awarded costs in the court case, his paper may yet have to write out a big cheque to actually get the records.

Read the appeal court`s decision here.