Access to Information:

1
Access to Information
Access to Information Jamaica
Procedural and Substantive Issues A selection of
decided , FOI and ATI cases
2

• "When government begins closing doors, it
  selectively controls information rightfully
  belonging to the people."
• Judge Damon Keith, U.S. Sixth Circuit Court of
  Appeals

3
ATI Laws around the World

• Over 50 countries now have ATI laws
• Older democracies United States, Canada and
  Australia, Ireland
• Central and Eastern Europe- Bulgaria Hungry,
  Czech Republic
• Americas- Mexico, Columbia
• East- Thailand, Japan, Philippines
• Europe- Sweden , Ireland, United Kingdom
• Caribbean- Trinidad, Belize, Jamaica, Bermuda

4
Enforcement models

• There is no one approach used around the world in
  the hearing or review of access to information
  decisions.
• United States and South Africa, aggrieved
  information requesters must appeal directly to
  the Federal Court.
• Mexico, Australia, and the US State of
  Connecticut, the law provides for an intermediary
  body with the power to hear complaints and order
  the release of information

5
Enforcement models

• Sweden and Hungary, the authority of the
  intermediary body is limited to providing
  recommendations only.
• Canada has an information commissioner who if
  their decision is not followed may take matters
  to Court for judicial review.
• The United Kingdom only passed a law this year
  2005
• The international trend is to establish an
  intermediary body, like Jamaicas Appeals
  Tribunal, to review agency decisions with the
  power to order the public authority to comply
  with its findings and decisions.

6
How to find case law on the worldwide web

• USA Freedom of Information Act 1966
• www.citizen.org/litigation/
• Canada Access to Information Act
• http//www.infosource.gc.ca/bulletin/2003/bulletin
  07_e.asp
• Australian Freedom of Information Act 1982
• www.austlii.edu.au/au/cases/cth/aat/
• Ireland
• http//www.oic.gov.ie/djudge.htm

7
Access to Information What does it mean?

• Exempting documents should be the exception
  rather than the rule.
• Bacon International Inc. v. Department of
  Agriculture and Agri-Food CanadaReference
• 2002 A.C.F. No.776 (QL) (F.C.T.D.)

8
Access to Information What does it mean?

• It is unacceptable, in a democratic society,
  that there should be a restraint on the
  publication of information relating to government
  when the only vice of that information is that
  it enables the public to discuss, review and
  criticize government action.
• Commonwealth of Australia v John Fairfax and Sons
  Ltd and Others (1980) 32 ALR 485, Mr Justice
  Mason

9
Relevance of ATI /FOIA case law from other
jurisdictions

• The decision of a court of another jurisdiction
  only acts as persuasive authority. It is NON-
  BINDING . However it may be PERSUASIVE. The
  degree of persuasiveness is dependent upon
  various factors, including,-
• First, the nature of the other jurisdiction.
• Second, the degree of persuasiveness is dependent
  upon the level of court which decided the
  precedent case in the other jurisdiction.
• Thirdly the date of the precedent case,
• Fourthly, the judge's reputation may affect the
  degree of persuasiveness of the authority

10
Relevance of ATI /FOIA case law from other
jurisdictions

• Where a lawyer cannot find a binding precedent,
  he or she may rely on a non-binding precedent
  from another jurisdiction.
• While not obliged to do so, the court may be
  impressed with or be persuaded by the reasoning
  and be prepared to adopt the rule established by
  the foreign case.

11
Relevance of ATI /FOIA case law from other
jurisdictions

• Usually the court will establish whether-
• The facts, statute and judgment are relevant and
  applicable in Jamaica
• The legal system is based on common law
  principles, a colonial heritage from the United
  Kingdom.
• Specific Similar tribunals /Information
  Commissioners have utilized this Approach

12
Relevance of ATI /FOIA case law from other
jurisdictions

• Australia -In Harris v Australian Broadcasting
  Corporation and Others (1984) 51 ALR 581, at 587,
  the Full Court of the Federal Court of Australia
  has taken into consideration Us freedom of
  Information Act decisions. In this case they
  decided that the FOI Act must be interpreted
  according to its own terms. However guidance, as
  the Court found in Harris's case, may be had from
  the US legislation.

13
Relevance of ATI /FOIA case law from other
jurisdictions

• The only way in which these judgments can be
  utilized by attorneys is if they are published
  and easily accessible.
• Ireland-The Information Commissioner makes
  legally binding decisions arising from reviews
  conducted under section 34 of the Freedom of
  Information Acts.
• It publishes some of these decision and also
  those which are of general interest or contain
  points of interpretation or of application of
  provisions of the FOI Acts which warrant broader
  release.These matters may be brought before the
  courts on APPEAL. Such Judgments are also
  published .

14
Substantive and Procedural Issues

• Procedural and Substantive
• Information already in the Public Domain
• Inappropriate Application of Exemptions
• Deliberative Process and Public Interest Test
• Cabinet Documents and Exclusions
• Legal Privilege and Personal Privacy
• Breach of Confidence
• Commercial Information
• Deletion of Exempt Matter/Severance

15
Information already in the public domain

• S.6 ATI where an official document is open to
  access by the public pursuant to any other
  enactment as part of a public register or
  otherwise-access to that document shall be
  obtained in accordance with the provisions of
  that enactment or those procedures

16
Information already in the public domain

• Canadian National Railway Company v. Attorney
  General of Canada 2002 F.C.J. No. 1283 (QL)
  (F.C.T.D.)
• Every year, a list of the non-rail assets was
  send by a privatized railway to Transport Canada
  by an agreement.
• Transport Canada received a request to disclose
  the list for 1996 and 1997, but refused the
  request at the Railway companies request based on
  information given in confidence. The documents
  contain the following information name of the
  purchaser, the municipality of the property, its
  approximate surface area, the selling price, the
  date of sale, the costs of the sale and the net
  revenue of the sale.

17
Information already in the public domain

• The parties agreed that the costs associated with
  the sale and the net revenue of the sale must not
  be disclosed.
• The person requesting access filed a complaint
  regarding the decision not to disclose the
  information.
• Transport Canada decided it would disclose the
  contents of this list for the years in question.
  The reasons for this decision included the fact
  that the information requested was accessible to
  the public because it was registered at the
  registry offices of various provinces.

18
Information already in the public domain

• Pelletier J. noted that confidentiality cannot
  not be raised in a case where the public has
  access to information or when the information can
  be obtained from sources to which the public has
  access
• The Court then examined the issue whether the Act
  only requires that the public have access to
  sources containing the information in question,
  or if it is necessary that the public actually be
  able to have access to this information. The
  applicant alleges that, although the information
  was registered at registry offices, it would be
  impossible to access this information by only
  knowing the purchaser's name or that the
  applicant was the vendor.
• In the Court's view, any ambiguity with respect
  to this question must be resolved in favour of
  disclosure and the files were to be disclosed.

19
Substantive Issues -Deliberative Process
Exemption and PI

• Deliberative Process s.19 ATI- Exempt if contains
  
• (a) opinions, advice or recommendations prepared
  for
• (b) a record of consultations or deliberations
  arising in the course of proceedings of Cabinet
  or committee. Excludes document of a factual
  nature, studies, tests, surveys of a scientific
  or technical nature
• This exemption could include
• Advice to Ministers by civil servants,
• Discussions between Ministers or between
  Ministers and their official advisors
• Advice or recommendations on policy decisions
• Expert advise and studies
• THE PUBLIC INTEREST TEST MUST BE APPLIED s.19(3)

20
Substantive Issues -Deliberative Process
Exemption and PI

• The relevant provisions of the Australian Act is
  s.36 of the FOI Act
• "36. (1) a document is an exempt document if
  it is a document the disclosure of which under
  this Act
• (a) would disclose matter in the nature of, or
  relating to, opinion, advice or recommendation
  obtained, prepared or recorded, or consultation
  or deliberation that has taken place, in the
  course of, or for the purposes of, the
  deliberative processes involved in the functions
  of an agency or Minister, or of the Government of
  the Commonwealth and
• (b) would be contrary to the public interest." 
  
• (5) This section does not apply to a document by
  reason only of purely factual material
  contained in the document."

21
Substantive Issues -Deliberative Process
Exemption

• Australia Freedom of Information Act 1982
• THOMAS LINCOLN CHAPMAN and WENDY JENNIFER CHAPMAN
  v. MINISTER FOR ABORIGINAL AND TORRES STRAIT
  ISLANDER AFFAIRS
• Application for the review of a decision of the
  Minister for Aboriginal Affairs to refuse access
  to the contents of a letter sent by the Minister
  to the Prime Minister.
• The letter concerned a declaration to be made in
  relation to protection of Aboriginal sites from
  the effects of the construction of a bridge.

22
Substantive Issues -Deliberative Process
Exemption

• The reasons for the refusal by the Minister was
  that the letter would disclose matter in the
  nature of, deliberative process and that it
  would not be in the public interest.
• NOTEThe declaration was not raised in Cabinet,
• The appellants claimed that what the Minister was
  doing in his letter, was giving the Prime
  Minister the opportunity to comment on, or
  overrule, the Minister's proposed declaration and
  that under the Act the Minister was not entitled
  to act upon the direction of either the Cabinet
  or his colleagues .

23
Substantive Issues -Deliberative Process
Exemption

• The Tribunal first determined if the document was
  consultative or deliberative Found it was
  consultative i.e. sought advice or counsel from a
  person
• Then the Tribunal considered whether the letter
  contains any statements of fact which, may not be
  exempt from disclosure and if so, whether those
  parts of the letter can or should be severed and
  released The Tribunal determined that part of
  letter contained proposals part conclusions.
  Conclusions facts and severed the letter

24
Substantive Issue The Public Interest

• The court found the following reasons irrelevant
  in relation to making a decision on whether or
  not a release was in the public interest
• The fact that the letter involves consultation at
  the highest level of government between a
  Minister and the Prime Minister .
• That the issues were highly controversial
• The stated need of the Minister to consult with
  the Prime Minister "with complete frankness".

25
Substantive Issues -Deliberative Process
Exemption

• If a request was made for correspondence between
  the Minister of Land and Environment and the
  Prime Minister (that contains the reservations of
  the Minister to the declaration, requests advise
  and discusses the value of the land) on a
  proposal for the declaration of a Protected Area
  in Trewlany, Jamaica,would you recommend this be
  released, or claim an exemption and why?

26
Cabinet Documents

• S.15 of ATI Act Document is exempt if it is a
  Cabinet Document that is
• (a) a Cabinet Submission, Note, or other document
  created for submission to Cabinet and it has been
  or is intended to be submitted,
• (b) a Cabinet Decision, or other official record
  of deliberation of Cabinet
• DOES NOT apply to documents appended that contain
  material of a factual nature, reports, studies
  scientific or technical nature or document that
  publishes a decision

27
Canadas Access to Information Act- Exclusion

• S.69 (1)This Act does not apply to confidences
  of the Queen's Privy Council for Canada,
  including, without restricting the generality of
  the foregoing,      
• (a) memoranda the purpose of which is to present
  proposals or recommendations to Council
• (b) discussion papers the purpose of which is to
  present background explanations, analyses of
  problems or policy options to Council for
  consideration by Council in making decisions
• (c) agenda of Council or records recording
  deliberations or decisions of Council
• (d) records used for or reflecting communications
  or discussions between ministers of the Crown on
  matters relating to the making of government
  decisions or the formulation of government policy

28
Canadas Access to Information Act

• (e) records the purpose of which is to brief
  ministers of the Crown in relation to matters
  that are before, or are proposed to be brought
  before, Council or that are the subject of
  communications or discussions referred to in
  paragraph (d)
• (f) draft legislation and
• (g) records that contain information about the
  contents of any record within a class of records
  referred to in paragraphs (a) to (f).
•   Paragraph 69(3)(b) of the Access Act states
• (3) Subsection (1) does not apply to
•  (b) discussion papers described in paragraph
  1(b)
• (i) if the decisions to which the discussion
  papers relate have been made public, or
• (ii) where the decisions have not been made
  public, if four years have passed since the
  decisions were made. R.S. 1985, c. A-1, s.69
  1992, c.1 s.144 (F).

29
Cabinet Documents

• CANADA (INFORMATION COMMISSIONER) V. CANADA
  (MINISTER OF THE ENVIRONMENT), 2003 F.C.J. NO.
  197 (C.A.)
• The requester applied under the Access to
  Information Act for access to Cabinet information
  dealing with a specific fuel additive, held by
  Environment Canada. In 1995 Cabinet had made
  public its decision to prohibit the
  inter-provincial trade and import of the additive
  for commercial purposes, and the relevant
  legislation was passed in 1997.
• The REQUEST- Discussion Papers, the purpose of
  which is to present background explanations,
  analysis of problems or policy options to the
  Queen's Privy Council for Canada for
  consideration by the Queen's Privy Council for
  Canada in making decisions with respect to
  Methylcyclopentadienyl Managenese Tricarbonyl
  (MMT)

30
Cabinet Documents

• Environment Canada denied access to the records
  on the basis of the Cabinet confidences exclusion
• On review, the Information Commissioner decided
  that portions of the records consisting of
  background explanations, analyses of problems or
  policy options should be disclosed, since they
  fell within the discussion papers exception to
  the exclusion. The Commissioner applied for
  judicial review.
• The Government argued that the Cabinet confidence
  was an exclusion which was not reviewable by the
  courts in Judicial Review proceedings

31
Cabinet Documents

• The Federal Court, Trial Division, agreed with
  the Commissioner that any information that could
  be described as background explanations, analyses
  of problems or policy options was not excluded
  and should be disclosed.
• The Court specified that this exercise does not
  require a line-by-line analysis of the documents.
  What is required, according to the Court, is that
  the person reviewing the documents determines
  whether there is, within or appended to the
  documents, an organized body or corpus of words
  which, looked upon its own, meets the definition
  of "discussion papers and that such corpus be
  severed and released to the requester .

32
Canadas Access to Information Act- Cabinet
documents

• You have done up a draft Cabinet decision on the
  acquisition of a computer system that allows the
  Jamaican Government to store fingerprints and
  track the number of times persons who have
  committed crimes have been identified by
  fingerprint evidence. The draft Cabinet document
  has appended to it a technical study of an Expert
  from Canada on the use of this system in Canada
  and its track record. You then submit it to
  Cabinet for a decision which you are awaiting.
• You receive a request for Any draft Cabinet
  decision on computer systems that store
  fingerprints and all documents appended to such a
  draft Cabinet submission , note or other document
  created for submission to Cabinet, the purpose of
  which is to present information of a technical
  nature , and all reports, studies and tests
  appended there to for consideration of the
  Cabinet
• Would you release this document(s)? and why?

33
Legal Professional Privilege

• The principle is based upon the need to protect a
  clients confidence that any communication with
  his/her professional legal adviser will be
  treated in confidence and not revealed without
  consent.
• Legal professional privilege protects
  communications between a professional legal
  adviser and client from being disclosed, even to
  a court of law. However the Jamaican Courts have
  applied the leading case of Buttes Gas and Oil
  Co. v. Hammer 1980 3 All E.R. 475, at page 485,
  to look at these documents. Lord Denning M.R.
  described the practice of judges calling for and
  looking at the documents themselves as
  (something) we often do nowadays.
• Privilege attaches to the information itself and
  belongs to the client

34
Legal Professional Privilege

• Advice privilege where no litigation is
  contemplated or pending
• Litigation privilege where litigation is
  contemplated or pending
• Litigation privilege attaches to all documents,
  reports, information, evidence and the like
  obtained for the sole or dominant purpose of the
  proposed or on-going litigation.
• For legal professional privilege to apply,
  information must have been created or brought
  together for the dominant purpose of litigation
  or the seeking or provision of legal advice.

35
Legal Privilege and Personal Privacy

• British Columbia
• Legal Services Society v. British Columbia
  (Information and Privacy Commissioner), 2003
• B.C.J. No. 1093 (C.A.)
• The Legal Services Society is the provincial body
  that administers the legal aid program in British
  Columbia.
• A newspaper reporter asked for a list of the top
  five criminal billers by name and amount billed
  during a specified period. The Society decided to
  disclose the amounts billed by the 10 lawyers,
  but not their names. The Society indicated that
  it was withholding the names on the basis of the
  solicitor-client privilege and personal privacy
  exemptions.

36
Legal Privilege and Personal Privacy

• On appeal, the Commissioner held that the names
  of the lawyers are not privileged because, in
  this case, they were not associated with any
  specific client (Order 322-1999).
• The Commissioner stated that the names of the
  lawyers alone could not be privileged, because
  the purpose of the solicitor-client privilege
  exemption is to protect confidentiality on behalf
  of clients, not lawyers.

37
Legal Privilege and Personal Privacy

• On judicial review, the Supreme Court quashed the
  Commissioners decision, holding that the
  privilege applied because a diligent individual
  could ascertain the identity of specific clients
  from the information at issue, and this in turn
  would reveal privileged information, i.e., the
  fact that the person received legal aid.
• The British Columbia Court of Appeal upheld the
  lower courts decision. Specifically, the Court
  of Appeal ruled that the possibility of a breach
  of solicitor-client privilege is a material
  one, and that the Commissioners decision was
  therefore incorrect. The Court stated that a
  decision by the commissioner that places
  solicitor-client privilege at risk is not
  acceptable even if it would be considered
  reasonable.

38
Actionable Breach of Confidence

• Actionable breach of confidence
• A duty of confidence arises when one person is
  provided with information by another in the
  expectation that the information will only be
  used or disclosed in accordance with the wishes
  of the confider. The duty is not absolute
• If there is an actionable breach of confidence,
  the party affected must have the right to take
  action though the courts.

39
Actionable Breach of Confidence

• This duty will only arise based on the
  circumstances under which information was
  provided to the authority and second based on the
  nature of the information. This may be done by
  contract or may be implicit from the
  circumstances. An authority cannot contract out
  their right to provide information under the Act.
• The courts have applied a public interest test to
  determine whether a duty to keep information in
  confidence may be outweighed by the public
  interest in disclosure e.g. information
  concerning misconduct, illegality or gross
  immorality

40
Information given in confidence

• Bacon International Inc. v. Department of
  Agriculture and Agri-Food Canada 2002 A.C.F.
  No.776 (QL) (F.C.T.D.)
• This is a case in which an application was made
  for judicial review by a third party following
  the Governments decision to disclose a record.
  The applicants requested non-disclosure based on
  the fact the information was provided in
  confidence.
• The applicants ran a slaughterhouse and meat
  processing plant in Quebec. The Government
  conducts inspections and gives the facilities
  overall ratings in carrying out its mandate of
  protecting the public in the food industry.

41
Information given in confidence

• The Government received a request for access to
  information to obtain the rating given by the
  Department to all facilities specializing in
  slaughtering and meat processing in Quebec and
  informed the owners of the factories about the
  request for information and invited them to send
  their written comments with respect to the
  reasons why the record should not be disclosed.
• The applicant parties all argued that the
  information was given in confidence and that if
  the information was revealed it would result in
  a financial loss. The Government decided to
  disclose it.

42
Information given in confidence

• The Court ordered that the records be disclosed
  and decided that when a third party opposed the
  disclosure of the information they must prove,
  according to the balance of probabilities, that
  the requested information should not be
  disclosed.
• The Judge confirmed that the third party claiming
  the exception provided by the Act must prove
  that the record
• is confidential in the objective sense of this
  expression and
• That the information was consistently treated in
  a confidential manner by the third party.

43
Information given in confidence

• The Court decided that the record for which the
  Companies are trying to obtain an exemption to
  disclosure contains a rating for facilities
  issued by the Government in carrying out its
  mandate of protecting the public in the food
  industry.
• The Court stated that the companies must submit
  evidence demonstrating to the Court how and why
  the disclosure would probably cause the alleged
  harm and must demonstrate a probability of harm
• This case is on appeal

44
Commercial Information

• S.20ATI Act
• (1) an official document is exempt if (b) it
  contains information concerning the commercial
  interests of any person or organization including
  a public authority and the disclosure of that
  information would prejudice those interests

45
Commercial Information

• USA Exemption 4 Permits an agency to withhold
  commercial or financial information that was
  obtained from a person and is privileged or
  confidential. Information is considered
  confidential if it is likely to cause substantial
  harm to the competitive position of the person
  from whom the information was obtained.
• A citizen made a FOIA request to the Food and
  Drug Administration for all documents concerning
  clinical studies for all prescription drugs which
  had a discontinuance because of death or serious
  injury of patients for 1990-1993

46
Commercial Information

• The appellant argued that the information should
  be released because it prevent other drug
  companies from making the same mistake and avoid
  risk to human health.
• The Court found that the FOIA was enacted to
  ensure the public can learn directly about the
  workings of Government and that it is not open
  to the public citizen to bolster the case for
  disclosure by claiming an additional public
  benefit in that it would prevent risky human
  trials.They found the data on the anti fungal
  drug if released could be used to create a
  competitive product.

47
Commercial Information

• They found that if disclosure would provide
  competitors with valuable insights into
  operational strengths and weaknesses of a company
  while they hold their cards close to their
  chests then this falls within the exemption.
• The court then found that conclusory and
  generalized allegations of substantial
  competitive harm cannot support an agencys
  decision to withhold requested documents.
• Finally in releasing some of the documents and
  exempting some the court found that an agency
  cannot justify withholding an entire document
  simply by showing that it contains some exempt
  material.

48

• "Secrecy has its place, but governments are
  always tempted to overuse the 'secret' stamp.
  When that happens, it can come at the cost of the
  public's stake in such other values as safety or
  clean air and water."
• Sens. Patrick Leahy and Carl Levin, Restore
  America's Freedom of Information, 2003