FW: Recent NS Review Report FI-08-12

From: Mary Kennedy [mailto:kennemg@gov.ns.ca]

Good Morning,

On December 2, 2009, Nova Scotia Freedom of Information and Protection of Privacy Review Officer Dulcie McCallum issued the following Review Report. The complete Report is attached and a copy can also be found on our website at http://www.foipop.ns.ca/rep_recent.html

FI-08-12

Report Release Date: December 2, 2009

Public Body: Atlantic Lottery Corporation

Issues: Whether the Atlantic Lottery Corporation ["ALC"] appropriately applied the Freedom of Information and Protection of Privacy Act["Act"] and, in particular:

1. Whether the ALC properly exercised its discretion in severing information under s. 15(1)(a), 15(1)(c) or 15(1)(k).
2. Whether the release of the personal information contained in the Record would constitute an unreasonable invasion of personal privacy pursuant to s. 20(1).
3. Whether the information included in the disclosure decision was open, accurate and complete in accordance with the duty to assist [s. 7].

Record at Issue: Pursuant to s. 38 of the Act, ALC has provided the Freedom of Information and Protection of Privacy ["FOIPOP"] Review Office with a copy of the complete Record including the information withheld from the Applicant. At no time are the contents of the Recorddisclosed or the Record itself released to the Applicant by the FOIPOP Review Officer or her delegated staff.

Part 1 and 4 of the Record - the ALC Investigation Reports

Reports from the investigations into retailer/ticket seller and ALC employee wins launched by the ALC during 2005. Note the Parts of the Record in this list for #1 and #4 are the same documents. The reports from the ALC investigations for the provinces of Newfoundland, Prince Edward Island and New Brunswick have been released, with severances pursuant to s. 15 and 20. The ALC has not released any of its 83 investigations for the province of Nova Scotia that are still under investigation by the RCMP.

9 documents (encompassing 25 pages) are emails that are responsive.
56 documents (encompassing 510 pages) are "investigation records."

Part 2 of the Record - the ALC Press Releases of Big Winners
All press releases about winners of $25,000 or more in any game sponsored by the ALC since January 1, 2001, for all four Atlantic Provinces but excluding news releases currently available at www.alc.ca.

838 documents (encompassing 867 pages) are "winners media releases."

Part 3 of the Record - the ALC Verification for Retailers' Wins

Files, including but not limited to, the documents related to verifying the wins of the 44 retailers who claimed prizes of at least $25,000 between January 1, 2001 and December 31, 2006, for Newfoundland, Prince Edward Island and New Brunswick (except 4). The ALC has not released any of the verification for Retailers' Wins for the province of Nova Scotia that are still under investigation by the RCMP.

48 documents (encompassing 450 pages) are "win verification" files.

Part 4 of the Record - see Part 1 above
Documents related to the 25 investigations the ALC conducted between January 1, 2001 and December 31, 2006. ALC acknowledged in its December 14, 2007 decision that a consultant study identified further investigation documents that were responsive to the Applicant's Application for Access to a Record, and so expanded the scope of this last item. These documents appear to be identical to the documents in Part 1, and for ease of reference, I will address both as Part 1 in the remainder of this Review Report.

Findings: 1.The ALC provided a copy of the part of the Record related to the New Brunswick investigations during the final stage of the formal Review. On the Record, the ALC claims a new exemption, under s. 14 "advice", though there is no reference to it in its decision letter to the Applicant. This late exemption is being made over two years since the original Application for Access to a Record and is well beyond the policy of the Review Officer for the time in which a late exemption can be claimed. In any event, based on s. 14(3) of the Act, the exemption in s. 14(1) cannot apply to a record that has been in existence for over five years, which this Record has been.
2. The ALC's internal investigation information, which was handed over to the RCMP for its investigation, does not fall within the definition of law enforcement information as defined by the Act. The ALC has the ability to investigate under s. 30 of the Gaming Control Act but that legislation does not provide for a penalty or sanction being imposed at the conclusion of the investigation. The information held by the ALC in relation to its internal investigation does not fit within the definition of law enforcement and therefore neither s. 15(1)(a) nor s. 15(1)(c) exemptions of the Act apply.
3.The ALC failed to demonstrate there would be any harm to the security of property or system if the information was released and therefore the exemption in s. 15(1)(k) of the Act does not apply.
4.The ALC has recently produced the New Brunswick investigation reports' portion of the Record because the RCMP investigation in New Brunswick is now complete. The portion of the Record that is outstanding is all 83 ALC internal investigation reports in Nova Scotia. The RCMP advised the ALC not to release the Nova Scotia portion of the Record. No affidavit was provided by the RCMP. The RCMP do not have the authority to determine if something is available from the ALC under the provincial access to information legislation. That decision rests solely with the ALC and is subject to a Request for Review to the Review Officer. A policing body's reluctance for a public body to release what it may consider relevant documentation to one of the policing body's ongoing investigations is not the test for a public body to apply to its own Record.
5. While records related to Newfoundland and Labrador, Prince Edward Island and New Brunswick were part of the Application for Access to a Record and have been provided to the Applicant, the ALC has claimed a blanket exemption of all 83 Nova Scotia ALC internal investigations and, as such, is more comparable to the Ontario case where the Ontario lottery corporation had refused all of its record and the Commissioner ordered its release.
6. The Applicant focused his/her concerns regarding the s. 20 exemptions to the information severed in the winners media releases, as such, the other severances were not examined.
7. The ALC's Policy states that it does not supersede access to information legislation. That is correct and in the case of at least Nova Scotia, the right of access to information under the Act supersedes the ALC Policy.
8. The ALC's Policy governs how long the personal information the ALC collects from winners at the time of win verification can be released publicly by the corporation: one year without further consent being obtained. The Policy dictates how long the ALC can use the personal information. It does not determine if someone has a right to access a record from a public body, the ALC, under the Act.
9. The information in the Record, severed by the ALC under s. 20 of the Act did fall within the definition of personal information of the winners.
10. Because the third party winner's personal information has already been in the public domain in the same format [media release], release of the information is presumed not to constitute an unreasonable invasion of personal privacy and, therefore, the ALC is not required to withhold the information requested.
11. In this age of information, if the ALC believes that its Prize Claim Form leads winners to believe that after the passage of one year, their personal information would obscure over time, it is mistaken as most of the information is available on the internet. The Prize Claim Form makes no reference to the Act.

Recommendations: The Review Officer recommends that:
1. The ALC release:
a. Any information previously withheld under s. 15.
b. All information that was severed from the winners media releases.
2. The ALC re-affirm its decision to withhold personal information from the following documents, the severances which were not under Review:
a. The investigation Record and all related documents.
b. The win verifications.
3. The ALC reconsider its decision to apply the discretionary exemption at s. 14 in the closing stages of this Review, and release the information severed pursuant to s. 14 in the New Brunswick investigation Record.
4. The ALC amend its Prize Claim Form to make it clear that the personal information provided to the ALC as part of the win verification process is subject to the provisions of the Freedom of Information and Protection of Privacy Act.
5. For greater clarity, the ALC amend its Winners Information Publicity Policy to make it clear that its agreement with winners regarding the collection and use of their personal information is subject to the Nova Scotia Freedom of Information and Protection of Privacy Act and amend its consent forms to make reference to and subject to the provisions of the Freedom of Information and Protection of Privacy Act.
6. The ALC make it clear in all documentation with winners that the ALC's promise to contain the use it makes of personal information gathered during the win verification process, is distinct from someone making an application for information, which will be governed as an access to information matter [disclosure] under the Act.

Key Words: access, balance, burden, disclosure, discretion, duty to assist, harm, indemnity, investigation, law enforcement, lottery, media, personal information, PIA, Privacy Impact Assessment, policy, privacy, reasons, release, representation, security, Wayback Machine, winners.

Statutes Considered: Freedom of Information and Protection of Privacy Act, ss. 2, 3(1)(e), 3(1)(i), 4(2)(b), 5, 7, 15(1)(a),(c),(k), 20(1), 20(3)(f), 20(4)(a), 26, 27, 45, 45(1), 45(2); Canada Business Corporations Act; Gaming Control Act, ss. 10(c), 35; Prince Edward Island Lotteries Commission Act; Newfoundland and Labrador Lotteries Act; New Brunswick Gaming Control Act; Alberta Freedom of Information and Protection of Privacy Act, s. 1(h).

Case Authorities Cited: FI-07-58, FI-07-62, FI-08-66, Ontario Order P-1833, Ontario Order P-352, FI-02-53, Ontario Order PO-2657, British Columbia Order F06-18, Ontario Order PO-1799, Re House, [2000] N.S.J. No 473,(S.C.).

Other Cited: "Citing Late Exemptions," Nova Scotia Freedom of Information and Protection of Privacy Review Office; IPC Practices, Number 9, Ontario Information and Privacy Commissioner; Atlantic Lottery Corporation Prize Claim Form; ALC Winners Information Publicity Policy.

Cheers,

Mary Kennedy
Intake/Administration
Freedom of Information & Protection of Privacy Review Office
Tel: (902) 424-4684
Fax: (902) 424-8303
Web: www.foipop.ns.ca