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Order 01-22
INQUIRY REGARDING ICBC RECORDS
David Loukidelis, Information and Privacy Commissioner
May 31, 2001
Quicklaw Cite: [2001] B.C.I.P.C.D. No. 23
Order URL: http://www.oipc.bc.ca/orders/Order-01-22.html
Office
URL: http://www.oipc.bc.caISSN
1198-6182 Summary: An auto body shop applied for records in the
custody of ICBC. The records consisted of internal e-mails and documents
relating to the ongoing relationship between the shop and ICBC. ICBC had denied
the shop accreditation, resulting in an appeal and revocation of the
shop’s vendor number. ICBC did not succeed completely on its application
of ss. 13 and 17 to a vast number of records. ICBC is required to demonstrate
the information it withheld under s. 13 was created for the purpose of advising
or recommending a specific course of action or range of actions or that it so
advises or recommends. Under s. 17, ICBC is required to establish a reasonable
expectation of harm to its financial or economic interest from disclosure of
specific information. ICBC succeeded on its application of s. 14 to records
created for the dominant purpose of preparing for, advising on or conducting
litigation. ICBC succeeded in its application of s. 15 to certain investigation
records. The Material Damage Specialist Fraud Unit’s activities qualified
as law enforcement, certain records were part of an actual investigation and
ICBC demonstrated a reasonable expectation of harm. ICBC was able to
demonstrate a reasonable expectation that disclosure of certain identities could
threaten certain individuals’ safety or mental or physical health. Thus
s. 19 was accepted for certain identifying information. ICBC properly applied
s. 22 to certain third party personal information, but it was not properly
applied to ICBC employee names and identities. Key Words:
solicitor client privilege – contemplated litigation – advice and
recommendations – law enforcement – reasonable expectation of harm
– harm to public body’s financial or economic interests –
threat to safety, mental or physical health – personal privacy –
unreasonable invasion. Statutes Considered: Freedom of
Information and Protection of Privacy Act, ss. 13(1), 13(2), 14, 15(1),
17(1), 19(1) and 22(1), 22(2)(c), (e) and (f), 22(3).
Authorities Considered: B.C.: Order No. 12-1994, [1994] B.C.I.P.C.D. No. 15;
Order No. 36-1995, [1995] B.C.I.P.C.D. No. 8; Order No. 116-1996, [1996]
B.C.I.P.C.D. No. 43; Order No. 159-1997, [1997] B.C.I.P.C.D. No. 17; Order No.
177-1997, [1997] B.C.I.P.C.D. No. 38; Order No. 197-1997, [1997] B.C.I.P.C.D.
No. 58; Order No. 323-1999, [1999] B.C.I.P.C.D. No. 36; Order 00-08, [2000]
B.C.I.P.C.D. No. 8; Order 00-10, [2000] B.C.I.P.C.D. No. 11; Order 00-17, [2000]
B.C.I.P.C.D. No. 20; Order 00-42, [2000] B.C.I.P.C.D. No. 46; Order 00-50,
[2000] B.C.I.P.C.D. No. 54; Order 01-01, [2001] B.C.I.P.C.D. No. 1.
Ontario: Order 24, [1988] O.I.P.C. No. 24; Order 48, [1989] O.I.P.C. No.
12; Order P-92, [1989] O.I.P.C. No. 56; Order P-170, [1994] O.I.P.C. No. 32;
Order 188, July 19, 1990; Order P-278, [1992] O.I.P.C. No. 22; Order P-411,
[1993] O.I.P.C. No. 27; Order P-482, [1993] O.I.P.C. No. 161; Order P-508,
[1993] O.I.P.C. No. 204; Order P-920, [1995] O.I.P.C. No. 186; Order P-948,
[1995] O.I.P.C. No. 161; Order P-1150, [1996] O.I.P.C. No. 121. Cases
Considered: Rubin v. Canada (Minister of Transport),
[1997] F.C.J. No. 1614 (C.A.); Ruby v. Canada (Solicitor
General), [2000] F.C.J. No. 779 (C.A.); Lavigne v. Canada
(Commissioner of Official Languages), [1998] F.C.J. No.
5127. 1.0 INTRODUCTION
[1] This order results from the inquiry conducted by the Executive Director of
the Office of the Information and Privacy Commissioner (“Executive
Director”) concerning an applicant’s request for review of a
decision of the Insurance Corporation of British Columbia (“ICBC”)
under the Freedom of Information and Protection of Privacy Act
(“Act”).
2.0 DISCUSSION
[2] On August 16, 1999, I delegated the authority to conduct inquiries to the
Executive Director pursuant to s. 49 of the Act. Although s. 49 authorizes
delegation of authority to conduct inquiries under s. 56 of the Act, it
does not authorize delegation of my authority to make orders under
s. 58.
[3] The Executive Director conducted the inquiry in this matter. I took no part
in the inquiry. The Executive Director prepared a report respecting the
inquiry, a copy of which is appended to this order. After receiving the
Executive Director’s report, I reviewed the filed material and the records
in dispute. I have adopted the Executive Director’s recommendations,
without variation, in this order and this order executes her findings and
recommendations.
3.0 CONCLUSION
[4] For the reasons given in the Executive Director’s
report:
| 1. | (a) |
Under s. 58(2)(a) of the Act, subject to
paragraph 1(b) below, I require ICBC to give the applicant access to some of the
information it withheld under s. 13 of the Act, as shown on the Guide to
Release and records provided to ICBC along with its copy of this
order;
|
| | (b) |
Under s. 58(2)(b) of the Act, I confirm the decision of ICBC
to refuse, under s. 13 of the Act, to give the applicant access to the
remainder of the information it withheld as shown on the Guide to Release and
records provided to ICBC along with its copy of this order;
|
| 2. | (a) |
Under s. 58(2)(a) of the Act, subject to paragraph 2(b) below, I
require ICBC to give the applicant access to some of the information it withheld
under s. 14 of the Act, as shown on the Guide to Release and records
provided to ICBC along with its copy of this order;
|
| | (b) |
Under s. 58(2)(b)
of the Act, I confirm the decision of ICBC to refuse, under s. 14 of the
Act, to give the applicant access to the remainder of the information it
withheld as shown on the Guide to Release and records provided to ICBC along
with its copy of this order;
|
| 3. | (a) |
Under s. 58(2)(a) of the act, subject
to paragraph 3(b) below, I require ICBC to give the applicant access to some of
the information it withheld under s. 15 of the Act, as shown on the Guide
to Release and records provided to ICBC along with its copy of this
order
|
| | (b) |
Under s. 58(2)(b) of the Act, I confirm the decision of ICBC to
refuse, under s. 15 of the Act, to give the applicant access to the
remainder of the information it withheld as shown on the Guide to Release and
records provided to ICBC along with its copy of this order;
|
| 4. | (a) |
Under
s. 58(2)(a) of the Act, subject to paragraph 4(b) below, I require ICBC to give
the applicant access to some of the information it withheld under s. 17 of
the Act, as shown on the Guide to Release and records provided to ICBC along
with its copy of this order;
|
| | (b) |
Under s. 58(2)(b) of the Act, I confirm
the decision of ICBC to refuse, under s 17 of the Act, to give the
applicant access to the remainder of the information it withheld as shown on the
Guide to Release and records provided to ICBC along with its copy of this
order;
|
| 5. | (a) |
Under s. 58(2)(a) of the Act, subject to paragraph 5(b)
below, I require ICBC to give the applicant access to some of the information it
withheld under s. 19 of the Act, as shown on the Guide to Release and
records provided to ICBC along with its copy of this order;
|
| | (b) |
Under s.
58(2)(b) of the Act, I confirm the decision of ICBC to refuse, under s. 19
of the Act, to give the applicant access to the remainder of the information it
withheld as shown on the Guide to Release and records provided to ICBC along
with its copy of this order;
|
| 6. | (a) |
Under s. 58(2)(a) of the Act, subject
to paragraph 6(b) below, I require ICBC to give the applicant access to some of
the information it withheld under s. 22 of the Act, as shown on the Guide
to Release and records provided to ICBC along with its copy of this
order;
|
| | (b) |
Under s. 58(2)(c) of the Act, I require ICBC to refuse access
to the information in the disputed records which was withheld under s. 22 of the
Act, as shown on the Guide to Release and records provided to ICBC along with
its copy of this order.
|
May 31, 2001
ORIGINAL SIGNED BY
David Loukidelis
Information and Privacy Commissioner
for British Columbia
APPENDIX TO ORDER 01-22
INQUIRY REGARDING ICBC RECORDS
REPORT OF
THE EXECUTIVE DIRECTOR OF THE OFFICE OF THE INFORMATION AND PRIVACY
COMMISSIONER
1.0 INTRODUCTION
[5] In March 1988, the applicant, Blue Mountain Collision (“BMC”),
acquired a vendor number from the Insurance Corporation of British Columbia
(“ICBC”). This entitled BMC to receive payment, for repairs
undertaken on insured vehicles, directly from ICBC every two weeks. In August
1996, BMC sought accreditation status from ICBC, as this would provide it with
additional business advantages. In November of 1996, ICBC declined
accreditation, but told BMC it could reapply in August 1997. BMC reapplied for
accreditation in February 1997 and ICBC declined it in June 1997. BMC
reapplied for accreditation in August 1997. ICBC declined it again in December
1997 and BMC appealed that decision in December 1997. ICBC revoked BMC’s
vendor number in December 1998 and BMC requested access to ICBC records, in
February 1999, under the Freedom of Information and Protection of Privacy
Act (“Act”).
[6] BMC wrote to ICBC on March 12, 1999 and amended its original request for
records, to read: “Please provide a copy of each record contained in our
complete files from September 5, 1995 to present.” On April 9, 1999, ICBC
informed the applicant in writing that it was unable to meet its extended
deadline of April 23, 1999 for responding to the request and had been granted an
additional extension to May 25, 1999 by the Office of the Information and
Privacy Commissioner. On April 16, 1999, the applicant asked this office to
review its decision to grant the additional time extension to ICBC. This issue
was resolved.
[7] On May 10, 1999, ICBC provided the applicant with its response to the access
request. Of the 1,151 pages of responsive records identified by ICBC, 559 were
released in their entirety to BMC. Another 508 were partially severed and
released and 84 were withheld in their entirety. ICBC relied on ss. 13(1), 14,
17(1), and 22(1) of the Act to withhold or sever the records. The applicant
requested a review of ICBC’s decision and, as all outstanding issues were
not resolved through mediation, the matter was scheduled for an
inquiry.
[8] Following a lengthy mediation period, and after the notice of inquiry was
sent out, ICBC notified this office and BMC that it would also be applying ss.
15 and 19 of the Act to some or all of the records in dispute. The Commissioner
has strongly discouraged the late application of discretionary exemptions by
public bodies, and I echo his concerns here. It is not conducive to an
effective mediation process between public bodies and applicants,
if, late in the day when the matter proceeds to inquiry, new discretionary
exceptions are applied. When an applicant requests a review of an access
decision on the basis of a response under s. 8, the exceptions in issue should
not be a moving target. Furthermore, since one of the aims of the mediation
process is to narrow the issues that go to inquiry, to have the range of
exceptions expanded once the mediation is finished and the inquiry notice is
issued is counterproductive to say the least. There may be times when cogent
and clear new evidence results in the public body applying a new, discretionary
exemption, but these should be extremely limited. Still in this matter, given
the protracted nature of the review and inquiry processes and in the context of
the underlying dispute between the parties, I have allowed ICBC to apply the
additional two discretionary exceptions to the extent discussed
below.
2.0 ISSUES
[9] The issues in this case are whether ICBC is authorized under ss. 13, 14, 15,
17 and 19 to withhold information from the records in dispute and whether ICBC
is required under s. 22 to withhold information from the records in
dispute.
[10] Under s. 57(1) of the Act, ICBC has to prove that BMC has no right of access
to all or part of the records in dispute where ICBC relies on ss. 13, 14, 15, 17
and 19. Under s. 57(2) of the Act, it is up to BMC to prove that
disclosure of the information withheld under s. 22 would not be an unreasonable
invasion of the third party’s personal
privacy.
3.0 DISCUSSION
[11] 3.1 Procedural Objections – ICBC requested a three-week
extension when the inquiry was first scheduled. It argued that the extra time
was needed due to the large number of records still in dispute, the application
of several exceptions which needed to be fully argued, the need to prepare a
considerable number of affidavits and because counsel had other client
commitments. The applicant strongly opposed what it termed the
“fourth” extension that ICBC requested. In order to ensure that no
party was deprived of making proper representations, this office allowed a
further 10 days before initial submissions were due.
[12] BMC provided three letters as its initial submission and ICBC provided a
binder of material containing arguments, supported by nine affidavits and
numerous authorities.
[13] After the initial submissions had been exchanged, the applicant requested an
extension of 30 days to review and “fully understand” all of the
material presented by the public body in its initial submission. Counsel for
ICBC vigorously opposed any further extension. Submissions were reviewed from
both parties and I decided that, as there did not appear to be any prejudice to
ICBC by providing additional time for submissions, to grant a
brief extension. The applicant was not represented by a lawyer and needed to
deal with a considerable volume of affidavit material filed by ICBC. The
inquiry was rescheduled to give to the applicant one week to prepare his reply
submissions.
[14] ICBC did not initially provide a reply submission in this inquiry, but
objected to the applicant’s reply submissions, stating that, as BMC had
not provided more in the way of an initial submission, it should not be
permitted to provide argument in reply. ICBC stated that the applicant’s
initial submissions did not meet the definition of a “submission” as
defined in this office’s information document on written inquiries and
requested a right of reply to the applicant’s reply
submission.
[15] ICBC subsequently, on December 10, 1999, provided a reply to the
applicant’s reply submission. I have carefully reviewed it and have
accepted it in the inquiry, but in the end have given it little weight in my
determinations. I have also accepted the applicant’s initial submission
as a “submission” because, with the exception of s. 22, the burden
of proof is on the public body.
[16] The arguments and affidavits submitted by ICBC on s. 15 were initially all
provided on an in camera basis. ICBC argued that in camera
submissions were necessary because the disclosure of the information in the
argument and affidavits would either reveal information protected from
disclosure under the Act or would enable the reader to accurately infer
information excepted from disclosure under the Act.
[17] However, since it is only under the most extraordinary circumstances that an
entire submission should be made in camera, I sent a letter to the public
body along with a copy of the submission, on which I indicated the information
which I believed could be disclosed to the applicant. I pointed out that if I
accept an entire submission in camera, including argument and evidence, I
would not be able to discuss the reasons for my
decision.
[18] ICBC responded on November 30, 2000 and agreed that the “majority of
the information you wish to disclose can be disclosed to the Applicant.”
There was one portion of a sentence that ICBC submitted should continue to be
withheld and, after reviewing its arguments, I agree. ICBC also agreed to
release more information on the first page of the s. 15 submission than I had
recommended. The revised s. 15 argument was sent to the applicant, who was
invited to respond.
[19] On November 21, 2000, consequent to ICBC’s concerns about the
relevance of three orders: Order 00-10, [2000] B.C.I.P.C.D. No. 11; Order 00-42,
[2000] B.C.I.P.C.D. No. 46; and Order 00-50, [2000] B.C.I.P.C.D. No. 54, I wrote
to the parties to give them an opportunity “to make a submission on the
impact of the Commissioner’s recent orders on the present inquiry.”
The parties were asked to make any submission they wished to make on or before
December 8, 2000. ICBC then wrote to say that the November 21
letter was received on November 27 and to ask for a six-week
extension for further submissions. The applicant wrote November 27 to object to
the time the whole matter had taken. ICBC wrote again on November 29 to ask for
permission to include further submissions on s. 17 and again to extend the
deadline for additional submissions by six weeks. I wrote to the parties on
November 29, 2000 to deny the requested extension but to allow ICBC to include
submissions on s. 17 in the inquiry. ICBC provided its submissions on December
8, 2000, accompanied by a binder of authorities (14 court decisions and 12
orders, although many were the same as those provided with the initial
submissions).
[20] BMC wrote to this office on December 11 to object to ICBC’s conduct as
revealed by the disclosure to it of a portion of ICBC’s initial submission
regarding s. 15, which was initially submitted in camera, and to advise
the OIPC that the “failure of ICBC to release the information in full has
prevented the writer from making a full defence to the action commenced . . . by
ICBC . . . in the Supreme Court of British Columbia.” BMC wrote again, on
December 18, to respond to ICBC’s December 8
submission.
[21] On December 18, 2000, I wrote to the parties to tell them that, in light of
ICBC’s December 8 submission and the applicant's response, I had decided
to give ICBC the opportunity to file supplementary evidence. I noted that my
decision to allow the filing of further evidence, as requested by ICBC, should
not be taken by the parties as my agreement with ICBC’s submissions on the
impact of intervening orders of the Commissioner, but rather was meant to
acknowledge the issues raised and to give ICBC the opportunity to make
submissions on that issue. I gave ICBC until January 22, 2001 to file
supplementary evidence and I gave the applicant until January 31, 2001 to
respond to ICBC’s further submissions.
[22] ICBC suggested, in its December 8 submission, that I “defer” my
jurisdiction in respect of records over which contemplated litigation privilege
was claimed. ICBC also suggested that I first make a preliminary decision on
the applicability of the exceptions, so that it could then adduce further
evidence in respect of the records for which I was inclined to reject the
exception claimed. I did not follow either suggestion and so informed the
parties.
[23] The applicant wrote, on December 31, 2000, to express its frustration with
the delay and to explain why it wants access to the records. BMC attached
copies of some 1998 and 1999 correspondence between BMC and ICBC, none of which
is relevant to my determination of whether ICBC is authorized or required to
withhold information under the exceptions to the general right of
access.
[24] 3.2 Relevant Sections of the Act – The relevant
provision of the Act are the following:
| Policy advice, recommendations or draft regulations |
| |
| 13 | (1) |
The head of a public body may refuse to disclose to an applicant information that would reveal advice or recommendations developed by or for a public body or a minister.
|
| | (2) |
The head of a public body must not refuse
to disclose under subsection
(a) any factual material,
...
|
| |
| Legal advice |
| |
| 14 | |
The head of a public body may refuse to disclose to an applicant information
that is subject to solicitor client privilege. |
| |
| Disclosure harmful to law enforcement |
| |
| 15 | (1) |
The head of a public body may refuse
to disclose information to an applicant if the disclosure could reasonably be
expected to
(a) harm a law enforcement matter,
...
(c) harm the effectiveness of investigative techniques and procedures currently used, or
likely to be used, in law enforcement,
(d) reveal the identity of a confidential source of law enforcement information, ... |
| |
| Disclosure harmful to the financial or economic interests of a public body |
| |
| 17 | (1) |
The head of a public body may refuse to disclose to an
applicant information the disclosure of which could reasonably be expected to
harm the financial or economic interests of a public body or the government of
British Columbia or the ability of that government to manage the economy,
including the following information:
(a) trade secrets of a public body or the government of British Columbia;
(b) financial, commercial, scientific or technical information that belongs to a public body or to the
government of British Columbia and that has, or is reasonably likely to have,
monetary value; ... |
| |
| Disclosure harmful to individual or public safety |
| |
| 19 | (1) |
The head of a public body may refuse to disclose to an
applicant information, including personal information about the applicant, if
the disclosure could reasonably be expected to
(a) threaten anyone else’s safety or mental or physical health, or
(b) interfere with public safety... . |
| |
| Disclosure harmful to personal privacy |
| |
| 22 | (1) |
The head of a public body must refuse to
disclose personal information to an applicant if the disclosure would be an
unreasonable invasion of a third party’s personal privacy. |
| |
| | (2) |
In determining under subsection (1) or (3) whether a disclosure of personal
information constitutes an unreasonable invasion of a third party’s
personal privacy, the head of a public body must consider all the relevant
circumstances, including whether
...
(c) the personal information is relevant to a fair determination of the applicant’s rights,
...
(e) the third party will be exposed unfairly to financial or
other harm,
(f) the personal information has been supplied in
confidence,
... |
| |
| | (3) |
A disclosure of personal information is presumed to be an unreasonable
invasion of a third party’s personal privacy if
...
(b) the personal information was compiled and is
identifiable as part of an investigation into a possible violation of law,
except to the extent that disclosure is necessary to prosecute the violation or
to continue the investigation, ... . |
| |
[25] The applicant did not make detailed submissions on any of the exceptions
applied by the public body. BMC’s position is that it is a small business
and is concerned about the “unfair power wielded by a Crown
corporation.” BMC also states that it strongly believes ICBC is
withholding the information by design to create a delay that will further
prejudice the applicant and create additional hardship and financial difficulty
(Applicant’s initial submission). In its reply to ICBC’s final
submissions (January 22, 2001), BMC took great exception to some of
the affidavit evidence.
[26] 3.3 Records in Dispute – The wide variety of records in dispute
is identified in the guide to release. The guide to release has been provided
to the parties as an attachment. The guide indicates the sections of the Act
applied by ICBC for each record in dispute. The guide identifies the type of
record, the sections of the Act applied by ICBC and my finding. Their content
includes the claim processing information of third parties, communications
between ICBC and its legal counsel, information documenting the ICBC
investigation into BMC, and the advisory/deliberative communication between ICBC
staff. All relate directly or indirectly to the business dealings between ICBC
and BMC. The format of the disputed records includes e-mails, memos, ICBC forms
and charges, draft correspondence, computer printouts, handwritten notes, and
facsimile cover pages. Many of the records are duplicates or part duplicates of
other records. The vast majority of the disputed records are internal ICBC
e-mails.
[27] 3.4 Advice or Recommendations – Section 13(1) permits a public
body to refuse to disclose information that “would reveal advice or
recommendations developed by or for a public body or minister”. Section
13(1) is limited by the circumstances listed in s. 13(2). Section 13(2)(a)
states that a public body must not refuse to disclose under s. 13(1) “any
factual material”. Much of the discussion that follows focuses on whether
the information in the records in dispute is “advice” or
“recommendations” under s. 13(1) or whether the information is
“factual material” under s. 13(2)(a).
[28] ICBC submits that the fundamental issue in relation to the application of s.
13 by public bodies to records in dispute is the balance between “openness
... and confidentiality of advice and recommendations” (ICBC’s
initial submission, para. 2).
[29] ICBC’s position is essentially that it must be able to take a
contextual approach to s. 13. Although ICBC agrees there is no presumption that
a public body enjoys a “zone of confidentiality” simply because of
the subject mater of the records, it argues that the Commissioner is
“entitled to take into account the particular circumstances surrounding
the creation of the records when applying s. 13 to records in dispute”
(ICBC’s initial submission, para. 24).
[30] ICBC refers to several orders of former Commissioner David Flaherty (Order
No. 12-1994, [1994] B.C.I.P.C.D. No. 15; Order No. 159-1997, [1997]
B.C.I.P.C.D. No. 17 and Order No. 177-1997, [1997] B.C.I.P.C.D. No. 38) and
further argues that a plain reading of s. 13 suggests a
contextual approach: “[s]upport for a contextual approach is found in the
breadth of meanings accorded the term ‘advice.’ It could involve
everything from an ‘opinion offered as to action’ to
‘information given’ ” (ICBC’s initial submission,
paragraph 28).
[31] The context for this matter, according to ICBC, is that it created or
gathered the records in dispute as it investigated alleged billing
irregularities and problems at BMC’s auto body shop, which it encountered
during the course of reviewing an application for accreditation. As this was
“new territory” for many ICBC managers and employees, there was a
need for ongoing co-operation, co-ordination and communication. The
effectiveness of the investigation depended on ensuring a high degree of
confidentiality for the investigation itself while also ensuring that the
day-to-day business relationship between ICBC and BMC was carefully handled.
ICBC staff provided advice on an ongoing basis to each other both in relation to
the investigative activity underway and in relation to the day-to-day business
relationship with BMC. At times, the advice was as simple as a recommendation
on a meeting time; in other instances, the advice was more formal and involved
penalties and sanctions (ICBC’s initial submission, paras.
32-42).
[32] ICBC argues that its “contextual” approach should be applied to
the interpretation of factual material” in s. 13(2)(a) and that I should
not be bound by a requirement to release all information of the factual nature
in the records. ICBC distinguishes the word “material” in s.
13(2)(a) referring to the “matter” or “constituent
parts” from information in s. 13(1), meaning discrete “items of
knowledge”. In ICBC’s view this distinction “allows it to
withhold factual information that takes on the character of advice by virtue of
the context in which it is created”. (ICBC’s initial submission,
paras. 27 – 310).
[33] Further, ICBC argues that, even if disclosure of the information in dispute
would not explicitly reveal advice or recommendations, disclosure would
implicitly result in such disclosure by allowing BMC to make accurate inferences
regarding advice or recommendations. What might be considered mere reporting of
events or information in other circumstances took on the character of advice in
circumstances in which ICBC employees were updating and advising each other. In
ICBC’s view, they were implicitly providing advice to each other as to
whether the course of action being taken with respect to BMC should be confirmed
or modified.
[34] ICBC also submits that, to the extent the records in dispute contain factual
material covered by s. 13(2), it is so intermingled with the advice or
recommendations that either disclosure of the factual material would reveal the
advice or recommendations or the only portions that could be released would be
meaningless. In ICBC’s view, the advice or recommendations include the
accompanying analysis, evaluations and assessments of factual material, because
they help explain the rationale for the advice or recommendations
given.
[35] ICBC is concerned that disclosure of the information in the records it has
withheld under s. 13 (and not protected under any other exception) will have a
“chilling” effect on the ability of ICBC staff to give advice and
recommendations for similar matters in the future. ICBC submits that BMC has
the full panoply of discovery tools available to it in the context of the civil
litigation now underway, that there are no issues of public accountability
because the underlying matter is a business dispute with related investigations
and that disclosure of information in the records in dispute would give BMC an
unfair advantage (ICBC’s initial submission, para.
43).
[36] Thus, ICBC argues that the word “advice” should be more broadly
interpreted in some circumstances than in others and that factual information
sometimes takes on the character of advice because of the context in which it is
presented. Although I agree that the context in which a record is created can
assist in deciding whether the application of s. 13 to particular information in
a record is justified, I do not think the Act contemplates any specific context
as determining whether or not s. 13 applies.
[37] In Ontario Order P-411, an Inquiry Officer held that advice or
recommendations refers to suggested courses of action which will ultimately be
accepted or rejected by the recipient during a deliberative process. In Order
00-08, [2000] B.C.I.P.C.D. No. 8 (pp. 38-39) the present Commissioner
stated:
“[I]n my view, the word ‘advice’ in
s. 13(1) embraces more than ‘information’. Of course, ordinary
statutory interpretation principles dictate that the word ‘advice’
has meaning and does not merely duplicate ‘recommendations’. Still
‘advice’ usually involves a communication, by an individual whose
advice has been sought to the recipient of the advice, as to which courses of
action are preferred or desirable.”
[38] The Commissioner’s view has been recently upheld by the Supreme Court
of British Columbia in the College of Physicians and Surgeons of British
Columbia v. Information and Privacy Commissioner 2001 B.C.S.C. 726.
Mr. Justice Owen-Flood confirmed, at paragraph 131 that the test is whether the
information is provided for the purpose “of advising or recommending a
specific course of action or range of actions...”.
[39] ICBC argues “factual material” in s. 13(2)(a) should be read
within its specific context. I note the view taken in Ontario Order 24, that
“factual material” does not refer to occasional assertions of fact,
but rather contemplates a coherent body of facts separate and distinct from the
advice and recommendations contained in a record. (But I also note that the
words “information” and “material” are used
interchangeably in Ontario Orders (see, for example, Ontario Orders 24, 48,
P-92, P-170, P-278, P-508, P-920)).
[40] ICBC argues that s. 13(1) applies to “occasional assertions of
fact”. I have difficulty accepting that an occasional assertion of fact
amounts to advice or a recommendation. However, if the public body is able to
demonstrate that a fact is sointerwoven with advice or
recommendation that it cannot reasonably be considered separate and distinct, s.
13(1) will apply. In addition, I accept that there may be circumstances where
the disclosure of a fact would implicitly result in disclosure of advice or
recommendations by allowing an applicant to make an accurate inference of
information that could be protected under s. 13(1).
[41] ICBC applied s. 13 to several e-mails which are no more than
“electronic musings”. In an earlier time, this information would
have been conveyed by telephone or conversation. The content of these e-mails
represents the “thinking” but does not amount to “advising or
recommending a specific course of action or range of actions”.
[42] ICBC argues that I must consider the “chilling effect” of
disclosure on the process of giving advice and making recommendations. In my
view, this argument amounts to an assertion that s. 13, as regards ICBC’s
activities, is a class exemption. I disagree. ICBC must prove, in each
situation, that information amounts to “advice” or
“recommendations”. The Commissioner rejected a similar argument in
relation to s. 15 in Order 00-11, [2000] B.C.I.P.C.D. No. 13, and in Order
01-07, [2000] B.C.I.P.C.D. No. 7, para. 9, in relation to s. 22. I have also
taken guidance from Rubin v. Canada (Minister of
Transport), [1997] F.C.J. No. 1614 (C.A.) at paragraph 32, Ruby v.
Canada (Solicitor General), [2000] F.C.J. No. 779 (C.A.) at
paragraph 94 and Lavigne v. Canada (Commissioner of Official
Languages), [1998] F.C.J. No. 5127 in which Dubé J. addressed the
distinction between a specific investigation and the investigation process
generally. This approach has been upheld in the College of Physicians and
Surgeons v. Information and Privacy Commissioner 2001 B.C.S.C. 726,
paras. 143-145.
[43] Consequently, I find that the only information ICBC can withhold is the
information within the scope of s. 13(1). I have indicated on the guide to
release, and the records themselves. Within pages 703 – 1148, I do not
find it necessary to decide on the application of s. 13 for those on which
I have accepted the application of s. 14.
[44] 3.4 Section 14 – Legal Advice - Section 14 of the Act
states:
| 14. |
The head of a public body may refuse to disclose
to an applicant information that is subject to solicitor client
privilege. |
[45] ICBC states that the records subject to s. 14 were created or gathered by
ICBC managers and employees during:
| a) |
investigations of BMC for anticipated criminal and/or civil litigation
against BMC |
| |
| b) |
preparation for litigation by BMC against ICBC, and |
| |
| c) |
communications between ICBC’s solicitors and ICBC
staff. |
[46] The results of the ICBC investigation led ICBC to file court actions against
BMC in September 1999.
[47] Section 14 of the Act protects common law solicitor client privilege;
s. 14 records may therefore be excepted from disclosure under two
categories of solicitor client privilege - legal professional privilege and
contemplated litigation privilege.
[48] The test for the application of contemplated litigation privilege to a
document was stated as follows by the Commissioner in Order 00-23, at page 5:
“A public body may withhold a record that was created for the dominant
purpose of preparing for, advising on or conducting litigation that was under
way or in reasonable prospect at the time the record was
created”.
[49] ICBC submits, at paragraph 5 of its initial submission, that the question to
be answered in determining which records are excepted from disclosure under
contemplated litigation privilege is:
At what point does an
administrative investigation of BMC for accreditation become an investigation in
which criminal and/or civil litigation is the dominant purpose for collecting
the records?
[50] ICBC then lists a chronology of events, starting in August 1996 when BMC
first applied for accreditation. ICBC began an investigation to determine
whether BMC should receive accreditation status and be accorded the privileged
business relationship which accrues. Based on the results of the investigation,
ICBC declined BMC accreditation.
[51] Some correspondence between ICBC and BMC is dated between November 1996
and September 1997. During this time, BMC was attempting to clear up
issues that arose during the investigation, so as to qualify for
accreditation.
[52] ICBC argues that the pivotal point in the process was a September 26, 1997
letter from BMC, which states in part: “We read your letter with great
interest and feel that the tone continues to reflect a bias towards us”.
ICBC submits that this is the point in the continuum between administrative
investigation and investigation undertaken when litigation is in reasonable
prospect: ICBC had informed BMC that its vendor number may be revoked;
irregularities have continued to raise ICBC concerns for more than one year; and
BMC is alleging bias by ICBC. In addition, records released to the applicant
indicated that the applicant had expressed his intention to proceed with legal
action. I agree with ICBC that a reasonable person possessed of all the
above pertinent information, including that peculiar to the parties involved,
would conclude that the matters of concern to ICBC would not likely be resolved
without litigation. Therefore, I find litigation was a reasonable prospect by
September 26, 1997. The next question is whether the records met the
“dominant purpose” test.
[53] ICBC also submits that, for s. 14 to apply:
[c]ontemplated
litigation must be the dominant, but need not be the sole reason for the
creation of a document. Provided that the dominant purpose is for contemplated
litigation, the creation and gathering of documents subject to litigation
privilege need not be at the direction of a lawyer but may be gathered by the
client as part of its own research and investigation (ICBC’s initial
submission, paras. 77-78).
[54] In November 1997, ICBC referred the BMC file to its newly-formed
“Special Investigations Unit for Material Damage”. ICBC submits
that, from November 1997 onwards, the dominant purpose of the records created
about BMC was to gather information for contemplated litigation, even though
they were also created, in part, for the purposes of responding to day-to-day
business and in response to BMC’s third accreditation application. It
argues that the dominant purpose test is met by the seriousness of the issues
under investigation, the repercussions for BMC, and the additional efforts of
the staff at the claims center to assemble the BMC records despite the lack of
sufficient personnel to carry out the necessary investigation.
[55] I accept ICBC’s argument for many, but not all of the records. To
attract s. 14 privilege, a record must be produced at a time when litigation was
a reasonable prospect and be produced for the dominant, not sole, purpose of
litigation. The purpose cannot be inferred solely by the date of production.
The purpose must be set out in affidavit evidence or be clear from either the
content or the context. Here, there are some records which were produced after
litigation was a reasonable prospect, but there is not sufficient evidence,
context, or content to establish that the dominant purpose was for contemplated
litigation.
[56] In addition, ICBC has applied s. 14 to some records created prior to the
beginning of the period during which litigation was contemplated, but which were
later sent to ICBC’s litigation department. These records were, ICBC
submits, gathered and sent to the litigation department when it became clear
that litigation was contemplated. I accept that s. 14 applies to these records,
as they form part of a “lawyer’s brief”. However, for some of
these records ICBC produced a severed version in both the original form and as
records in the lawyer’s brief. The privilege does not cover the records
in their original form, i.e., in the form prior to contemplation of
litigation. The public body has not applied s. 14 to the “original
records”, even though the information in these records may reveal the
information protected by s. 14. However tempting it may be to apply s. 14 to
the earlier records, I am not able to apply a discretionary section where the
public body did not apply it. I cannot replace the public body’s exercise
of discretion with my own decision.
[57] I have indicated on the guide to release those documents to which I accept
the application of the s. 14 exception.
[58] 3.5 Disclosure Harmful to Law Enforcement – Section 15(1)(a)
provides that a public body has the discretion to withhold documents where
disclosure of the documents could reasonably be expected to harm a law
enforcement matter. ICBC argues that it purposely exercised its discretion to
refuse to disclose the documents that were created and gathered by its Material
Damage Specialist Fraud Unit as part of its investigation of BMC. These s. 15
records are listed in the guide to release.
[59] The Commissioner has commented, in Order No. 321-1999, [1999] B.C.I.P.C.D.
No. 34, “that the unqualified use of the word ‘harm’ in
section 15(1)(a) signifies there is no need to establish serious or overwhelming
harm in order for this exception to apply”, so long as the harm that can
be established is not so fleeting or minimal as to be truly insignificant to the
law enforcement matter involved.
[60] Schedule 1 of the Act provides a statutory definition of law enforcement.
ICBC argues that the implication is that a “law enforcement” matter
may refer to the investigation of crime generally, a specific investigation, and
or the proceedings that are a consequence of an investigation. It submits that
the term “matter” also captures harm that can reasonably be expected
to occur, from the disclosure of documents during an investigation, to other law
enforcement investigations currently underway or the future capacity of a public
body to perform its investigative mandate. It relies on Order
No. 197-1997, [1997] B.C.I.P.C.D. No. 58 to support this
premise.
[61] The former Commissioner, in past decisions, identified three criteria that
must be met before a public body may exercise discretion under s. 15(1)(a) with
respect to an investigation:
(a) The public body must have a statutory mandate to conduct
investigations;
(b) The public body must be able to impose a sanction or penalty; and
(c) The documents must relate to an actual law enforcement
investigation.
See Order No. 36-1995, [1995] B.C.I.P.C.D. No.
8; Order No. 116-1996, [1996] B.C.I.P.C.D. No. 43; Order No. 197-1997, [1997]
B.C.I.P.C.D. No. 58.
[62] ICBC relies on s. 7(c) of the Insurance Corporation Act as its
statutory mandate to investigate for material damage fraud. It argues that
investigations by the Material Damage Specialist Fraud Unit can result in a
range of sanctions against an auto body shop that has engaged in fraudulent
conduct. These include:
- a claims centre requiring the re-inspection of repairs done by a particular
auto body shop;
- the Suppliers Conduct Committee suspending or revoking an auto body
shop’s vendor number;
- a decision that ICBC will no longer do business with an auto body shop;
- the pursuit of civil remedies or referring the matter to Crown Counsel for
consideration of criminal charges.
[63] At least in light of the last item, I agree with ICBC that its Material
Damage Specialist Fraud Unit investigations can result in a penalty or sanction.
[64] It is also necessary to show that the documents are part of an actual law
enforcement investigation. ICBC’s evidence on this point was provided
in camera and I accept ICBC’s submission on this point.
However, records that only reveal the mere existence of an investigation are not
necessarily subject to s. 15.
[65] I now consider whether there is a reasonable expectation of harm under
s. 15(1)(a). ICBC notes that BMC has ceased to do business as a body shop,
but submits, on the basis of Order No. 321-1999, [1999] B.C.I.P.C.D. No. 34 (as
well as several Ontario Orders) that this does not determine the issue. I agree
but, having considered all argument and affidavit evidence (some of which was
submitted in camera), find that ICBC is authorized to withhold only some
of the records it withheld under s. 15 ICBC makes other submissions as to why
information should be withheld under s. 15 but, as they were made in
camera, I cannot discuss them here, as I would prefer. I can summarize
the gist of ICBC’s arguments this way: the investigation of material
damage fraud and the need to deter it have become an important corporate
function, so much so that the disclosure of the information withheld under s. 15
could harm future investigations of the type undertaken with respect to BMC. I
have difficulty accepting that disclosure of the results of investigation(s) of
BMC could harm future investigations of other allegations of material damage
fraud, not least because the information ICBC wants to withhold under s. 15
appears to me to be mostly the results of common investigative techniques such
as interviewing witnesses and reviewing documents. In any case, since the
remainder of the records for which ICBC has applied s. 15 are those which I have
found ICBC is authorized to withhold under s. 14, I do not find it necessary to
decide whether ICBC can also withhold them under s. 15. These are marked on the
guide to release.
[66] Finally, I note that s. 15 was not applied consistently to each of the
duplicate copies of a few records. In some cases, s. 15 was added to an entire
record, along with other exceptions, but not to an identical copy found
elsewhere. Although this is likely the result of human error, it has added
confusion to the matter, especially when dealing with an exception added to a
large number of records.
[67] 3.6 Disclosure Harmful to Financial or Economic Interests - ICBC
submits that ss. 17(1)(a) and (b) are relevant.
[68] ICBC submits that the information in the s. 17 records, some of which may
seem innocuous, collectively shows the workings of ICBC anti-fraud activities.
It further submits that the information contained in the s. 17 records is
properly characterized as financial or commercial in nature for the purposes of
s. 17(1)(b). This is because the information either:
| (a) |
reveals financial information associated with the business operations of
ICBC;
|
| (b) |
is information which is used in the context of the commercial operations,
mainly, motor vehicle repairs resulting from automobile accidents;
or
|
| (c) |
reveals technical information in relation to the
above. |
[69] The argument for financial value is as follows. If the information were
disclosed, it would be reasonable to expect that other people who wished to
perpetrate fraud against ICBC would take the information and use it for their
financial gain. The information would therefore open a window for potential
fraud perpetrators to learn how ICBC’s investigative techniques, resources
and processes work.
[70] ICBC further submits that the s. 17 records amount to trade secrets of a
public body for the purposes of s. 17(1)(a). It argues that the Act has a very
broad definition of “trade secret” which encompasses the information
at issue for the following reasons:
| (a) |
a fraud operator could
use the requested information in its business relationship with ICBC to defraud
ICBC for the fraudulent operator’s own commercial
advantage;
|
| (b) |
the information contained in the s. 17 records is
confidential and is not generally known to ICBC autobody shops and
others;
|
| (c) |
ICBC takes steps to ensure the information remains
confidential, including by treating the information as part of a law enforcement
investigation; and
|
| (d) |
For reasons noted earlier, the disclosure of the
s. 17 records would result in harm to the economic interests of ICBC
(ICBC’s initial submission, paras. 97-99). |
[71] The term “trade secrets” is also used in s. 21. The substance
of ICBC’s argument is, in effect, that the documents under consideration
represent the trade secrets of ICBC because they demonstrate ICBC’s
methodology in investigating, detecting and prosecuting fraud. The information
is argued to have financial value, as reflected in the savings accruing to ICBC
insured as a result of these fraud investigations being completed and
prosecuted. In my view, such information does not have sufficient independent,
objectively ascertainable financial value to constitute a trade
secret.
[72] ICBC also submits that the disclosure of certain information could
reasonably be expected to result in undue financial gain to a third party. In
support of its submissions, ICBC notes that material damage fraud is a major
concern, that it pays out roughly $6 million per year for motor vehicle repairs
resulting from automobile accidents, and that the Insurance Bureau of Canada
estimates that as many as 10% of all such claims may be fraudulent. ICBC
provided evidence to support its assertion that it saved, through the efforts of
the Special Investigations Material Damage Fraud Unit, $20 million dollars in
the fiscal year 1998/99.
[73] It does not necessarily follow, however, that access to the fraud
investigation records relating to BMC would or could result in fraudulent
operators being better able to manipulate ICBC’s claim system to their own
benefit. ICBC argues that the economic interests of ICBC will be harmed if
fraudulent operators learn methods of avoiding detection and consequent exposure
to civil and criminal penalties. I am not persuaded that the kind of undue
financial gain contemplated by s. 17(1)(d) could result. In any case, since I
have found that ICBC is authorized to withhold the information under s. 14,
it is not necessary to decide for each record for which ICBC claims s. 17. For
these reasons, even though I might have otherwise accepted the application of s.
17 to some of pp. 703 - 1148, I do not find it necessary to decide for each page
because I have accepted that ICBC can withhold these records under s.
14.
[74] 3.7 Harm to Individual or Public Safety – The test established
by the Commissioner for withholding records under s. 19(1) is set out in Order
01-01, [2001] B.C.I.P.C.D. No. 1. There, the Commissioner accepted evidence of
a reasonable expectation that the disputed information could be used to identify
abortion service providers, based on the ‘mosaic’ effect. Generally
speaking, it is necessary to show that if the disputed information is released,
there is a reasonable expectation that the disclosure could threaten an
individual’s safety or mental or physical health.
[75] Many of the records in dispute raise issues regarding the protection of
individual identities. ICBC’s in camera affidavit evidence is
intended to support the contention that the principal of BMC made veiled and
direct threats against employees of ICBC. BMC’s principal disputes the
interpretation ICBC places on certain events.
[76] I accept that the in camera affidavit evidence demonstrates a
reasonable expectation that some persons’ mental or physical health might
be put into jeopardy by the release to BMC of their names or other personal
identifiers. ICBC notes that it has not withheld from disclosure the names of
individuals whom BMC already knows are associated with this matter. I also
accept that there is a reasonable expectation of a threat to the mental health,
physical health or safety of previously unidentified individuals within the
meaning of s. 19(1), as demonstrated by the conduct of the principal of BMC to
ICBC employees and others in the past.
[77] Although ICBC’s stated intention was to protect the names of employees
whose involvement in any aspect of the matter was not otherwise apparent to the
applicant, ICBC has not clearly identified those employees. Also, since the
severing of names is inconsistent (see the discussion under s. 22), it is not
always clear whether a named individual is or was an employee. In some cases,
it appears that a name was disclosed on another record.
[78] For the above reasons, I accept that ICBC has properly applied the
s. 19(1) exception to the records in dispute.
[79] 3.8 Personal Privacy – ICBC argues that most, if not all, of
the s. 22 records were created for, or formed part of, “an investigation
into a possible violation of law”, specifically alleged fraud.
Accordingly, s. 22(3)(b) creates a presumption that disclosure will constitute
an unreasonable invasion of a third party’s privacy. It submits that the
personal information contained in the s. 22 records is not relevant to a fair
determination of the applicant’s rights. It further submits that third
parties will be exposed unfairly to other harms should these records be
released. Finally, it is submitted that much of the information was supplied in
confidence as part of ICBC’s investigation of
BMC.
[80] In its reply submission, BMC acknowledges that third-party information is an
important tool in investigations and does not expect identification of the third
parties. However, it wants access to the information to verify the accuracy of
information given by third parties. The applicant did not meet the burden of
proof imposed by the Act for this exception, especially as it did not provide
argument or evidence on s. 22 in its initial submission. I find that the
information withheld under s. 22 was appropriately
withheld.
[81] ICBC’s severing was inconsistent with respect to information withheld
under s. 22. In some cases, a name was withheld from one portion
of a record, even though it was disclosed in other portions. In others, a name
was withheld from one record but not withheld from a companion record. In one
case, the name was withheld from one copy of a record but not from another. In
cases where ICBC released third party personal information, and it should have
applied s. 22, I have decided to apply s. 22 to the previously released
information. As much as I could, in the circumstances, I have authorized the
application of s. 22 for names and other third party personal information not
otherwise disclosed.
[82] ICBC has applied s. 22 to employee names in e-mails, correspondence and
memos. In these cases, employees are acting in their professional capacities
with ICBC. As I pointed out in Order 00-17,
[w]hile a name is
personal information under the definition of ‘personal information’
in Schedule 1 to the Act, release of the name of an employee, acting in his/her
employment capacity with the public body, does not amount to an unreasonable
invasion of privacy under Section 22 in the case.
[83] In these cases I find that ICBC was not required to apply s.
22.
4.0 FINDINGS AND RECOMMENDATIONS
[84] For the reasons given above, I recommend that the Commissioner make the
following orders:
| 1. | (a) |
Under s. 58(2)(a) of the Act, subject
to paragraph 1(b) below, to require ICBC to give the applicant access to some of
the information it withheld under s. 13 of the Act, as shown on the Guide
to Release and records provided to ICBC along with its copy of this
order;
|
| | (b) |
Under s. 58(2)(b) of the Act, to confirm the decision of ICBC
to refuse, under s. 13 of the Act, to give the applicant access to the
remainder of the information it withheld as shown on the Guide to Release and
records provided to ICBC along with its copy of this order;
|
| 2. | (a) |
Under s. 58(2)(a) of the Act, subject to paragraph 2(b) below, to
require ICBC to give the applicant access to some of the information it withheld
under s. 14 of the Act, as shown on the Guide to Release and records
provided to ICBC along with its copy of this order;
|
| | (b) |
Under s. 58(2)(b)
of the Act, to confirm the decision of ICBC to refuse, under s. 14 of the
Act, to give the applicant access to the remainder of the information it
withheld as shown on the Guide to Release and records provided to ICBC along
with its copy of this order;
|
| 3. | (a) |
Under s. 58(2)(a) of the act, subject
to paragraph 3(b) below, to require ICBC to give the applicant access to some of
the information it withheld under s. 15 of the Act, as shown on the Guide
to Release and records provided to ICBC along with its copy of this
order
|
| | (b) |
(b) Under s. 58(2)(b) of the Act, to confirm the decision of ICBC
to refuse, under s. 15 of the Act, to give the applicant access to the
remainder of the information it withheld as shown on the Guide to Release and
records provided to ICBC along with its copy of this order;
|
| 4. | (a) |
Under s. 58(2)(a) of the Act, subject to paragraph 4(b) below, to require ICBC to give
the applicant access to some of the information it withheld under s. 17 of
the Act, as shown on the Guide to Release and records provided to ICBC along
with its copy of this order;
|
| | (b) |
Under s. 58(2)(b) of the Act, to confirm
the decision of ICBC to refuse, under s 17 of the Act, to give the
applicant access to the remainder of the information it withheld as shown on the
Guide to Release and records provided to ICBC along with its copy of this
order;
|
| 5. | (a) |
Under s. 58(2)(a) of the Act, subject to paragraph 5(b)
below, to require ICBC to give the applicant access to some of the information
it withheld under s. 19 of the Act, as shown on the Guide to Release and
records provided to ICBC along with its copy of this order;
|
| | (b) |
Under s. 58(2)(b) of the Act, to confirm the decision of ICBC to refuse, under s. 19
of the Act, to give the applicant access to the remainder of the information it
withheld as shown on the Guide to Release and records provided to ICBC along
with its copy of this order;
|
| 6. | (a) |
Under s. 58(2)(a) of the Act, subject
to paragraph 6(b) below, to require ICBC to give the applicant access to some of
the information it withheld under s. 22 of the Act, as shown on the Guide
to Release and records provided to ICBC along with its copy of this
order;
|
| | (b) |
Under s. 58(2)(c) of the Act, to require ICBC to refuse access
to the information in the disputed records which was withheld under s. 22 of the
Act, as shown on the Guide to Release and records provided to ICBC along with
its copy of this order.
|
May 30, 2001
ORIGINAL SIGNED
BY
Lorrainne A. Dixon
Executive Director
Office of the
Information
and Privacy Commissioner
May 31, 2001
Information and Privacy Commissioner of British Columbia
|
