A six year quest of the Toronto Star has been finally put to rest by an Ontario Court of Appeal decision favouring a ‘freedom of information’ request filed by the Star. The landmark decision held that municipal government institutions, such as the Toronto Police Services Board (the “Board”), are required to produce electronically stored information that the public has a right to see. The majority judgement of Justice Michael Moldaver emphasized the policy reasons behind the decision and indicated that a broad interpretation of the availability of electronic data records stands consistent with the objectives of the ‘access to information’ law.
The case stems from the requests made by Jim Rankin, a Toronto Star journalist, to the Board regarding certain electronic data stored in the Board’s Criminal Information Processing System (CIPS) and in the Board’s Master Name Index (MANIX) systems. The Board argued that since the process of producing the data required replacing names with numbers for privacy protection, it failed to qualify as a “record” under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). Furthermore, it drew attention to the need to create a new algorithm and new software in order to achieve that result, and that such software did not exist with the Board. The Divisional Court decision had held that access is only guaranteed to those electronic records that the municipal institution can readily produce using the software they normally use. The recent Ontario Court of Appeal decision, however, quashed this by emphasizing that, “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”.
MFIPPA came into effect on January 1, 1991 with the aim of protecting the privacy of an individual’s personal information stored in existing government records while providing a right of ‘access to information’ to the public at large. Three main advantages of this Act include: the right to access municipal government information including one’s own personal information, the right to request a correction of personal information believed to be false or inaccurate, and the opportunity to request an independent review from the Information and Privacy Commissioner of Ontario of the decisions made under MFIPPA . The pith and substance of this statute emphasizes its overarching function to serve the public and to enhance democracy, thereby making it reasonable to have records open to public for scrutiny.
This court decision is a classic case of statutory interpretation. Section 2 of MFIPPA provides that “every person has a right of access to record or a part of record in the custody or control of the institution”. Section 2(b) also states that “[record includes] any record … under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution” (emphasis added). The Court of Appeal took a broad interpretation of the contested provision and rejected the Divisional Court notion that “normally used by the institution” qualified the “computer hardware and software”. Consequently, this eliminates the potential evasion of the public’s right to access information by government institutions. It also prevents any deliberate attempts on behalf of these institutions to fail to update or to be selective about their choice of the hardware and software that they normally use. Thereby, the phrase “normally used by the institution” was interpreted only as a qualifier for the “technical expertise”.
Overall, the new decision leaves MFIPPA and its regulations as gatekeepers preventing some minor hardware and software costs from hindering the access of information to the public at large. The regulation lays out that the cost should be borne by the requesting party and as long as there is no unreasonable interference with the operations of the institution, the obligation to disclose information still stands. Although the decision appears sound and just in the current case, the question of the reasonableness of cost allocation still stands. To what extent is the court willing to let the requesting party bear the cost of such hardware and software development? The assumption under which the court appears to be working is that such costs will be manageable and not too burdensome. Will the purpose of serving the public and enhancing democracy be met by letting the requesting party bear the cost burden of developing a computer program or other method of producing a record?