[2011] 3 F.C.R. D-9
Access to Information
Judicial review of decision by respondent refusing to disclose requested information pursuant to Access to Information Act, r.s.c., 1985, c. A-1 (Act), ss. 15, 16, 17, 19—Applicant seeking information concerning Afghan detainees transferred by Canadian Forces to Afghanistan Ministry of Defence—Respondent withholding photographs of Afghan detainees, invoking “defence of Canada” exception pursuant to Act, s. 15—Applicant invoking possible mistreatment of prisoners under custody of Canadian Forces—Arguing for disclosure of photographs in public interest—Office of the Information Commissioner finding that Act, s. 19(1) properly applied, no conditions permitting disclosure existing under Privacy Act, R.S.C., 1985, c. P-21, s. 8—Process of redaction under Act, s. 25 to remove personal identifiers from government record requiring that exercise be carried out in way that fully protects person’s right to privacy—This is not a balancing exercise—It requires an approach to severance leaving no room for error or risk of disclosure of one’s identity—Privacy Act, s. 8(2)(m) permitting disclosure of personal information only where public interest in disclosure clearly outweighing invasion of privacy resulting from disclosure—Exercise of authority to sever personal information from government record requiring high degree of certainty, not mere probability of disclosure—Extreme caution justified herein where reasonable apprehension that personal safety of individual, family at risk from disclosure of identity—Application of s. 25 in context of removing personal information from photograph involving element of judgment—Such process erring on side of protecting subject’s privacy interests—Applicant arguing that if error made in initial citation of grounds for withholding information, no possibility for later rectification, in effect trapping decision maker—Court not in agreement that such drastic result consistent with Parliament’s intent in drafting Act—Such estoppel leading to release of information exempt from disclosure, undermining balance fashioned by Parliament— In withholding photographs herein, respondent cognizant of need to consider public interest, nevertheless concluding that risks to detainee, conduct of Canadian military operations paramount—Application dismissed.
Attaran v. Canada (National Defence) (T-1679-09, 2011 FC 664, Barnes J., judgment dated June 9, 2011, 25 pp.)