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Good Afternoon,
On October 28, 2010, Nova Scotia Freedom of Information and Protection of Privacy Review Officer, Dulcie McCallum released the following Review Report FI-10-26.
A copy of the full Report can be found on our website at
http://www.foipop.ns.ca/rep_recent.html
FI-10-26
Report Release Date: October 28, 2010
Public Body: Nova Scotia Securities Commission
Issues: Whether the Nova Scotia Securities Commission [“Commission”] appropriately applied the Freedom of Information and Protection of Privacy Act [“Act”] and, in
particular:
1.Whether this is a request for personal information and, therefore, not subject to the application fee.
2.Whether the release of the Record would reasonably be expected to harm investigative techniques pursuant to s. 15(1)(c) of the Act.
3.Whether release of the Record would unreasonably invade the privacy of third parties pursuant to s. 20 of the Act.
4.Whether the personal information of the Applicant supplied by third parties was supplied in confidence. If yes, whether a summary under s.
20(5) of the Act possible.
5.Whether s. 21 of the Act applies to the Record.6.Whether the Commission has properly exercised its discretion to apply the discretionary exemption(s).
7.Whether the Commission has applied the exemption(s) in a blanket manner or whether severing could have been applied to the responsive Record in accordance with s. 5(2) of the Act.
8.Whether the public interest override at s. 31 of the Act is a factor that should be considered in this case.
9.Whether the confidentiality provisions of Securities Act prevail over the Act, under s. 4A.
10.In addition, whether the Review Officer will accept all of the late discretionary exemptions.
11.If yes to #10, whether release of the Record would reasonably be expected to reveal information received in confidence from another government, body, or agency listed in s. 12(1)(a) of the Act.
12.If yes to #10, whether release of the Record would reasonably be expected to harm law enforcement pursuant to s. 15(1)(a) of the Act.
13.If yes to #10, whether release of the Record would reasonably be expected to reveal any information relating to or used in the exercise of prosecutorial discretion pursuant to s. 15(1)(f) of the Act.
14.If yes to #10, whether the Record is a law enforcement record and the disclosure would be an offence under an enactment pursuant to s.
15(2)(a) of the Act.
15.Whether the Commission has breached its statutory duty to assist under s. 7 of the Act
Record at Issue: Pursuant to s. 38 of the Act, the Commission 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 Record disclosed or the Record itself released to the Applicant by the FOIPOP Review Officer or her delegated staff.
The Record consists of a 14-page Investigation Report that the Investment Industry Regulatory Organization of Canada [“IIROC”] completed and forwarded to the Commission.
Summary: An Applicant made a Request for Review of the Commission’s decision to refuse access to a Record. The Commission originally cited s. 15(1)(c) of the Act [harm to investigative techniques] and subsequently claimed other exemptions: two mandatory [s. 20 unreasonable invasion of third party privacy and s. 21 confidential business information] and four late discretionary [s. 12(1)(a) inter-governmental relations, s. 15(1)(a) harm law enforcement, s.
15(1)(f) prosecutorial discretion, s. 15(2)(a) law enforcement and offence to release]. The late exemptions were rejected by the Review Officer as well beyond a reasonable time. Because many of the late exemptions the Commission attempted to claim late did not apply, the Review Officer provided a discussion on each without making findings.
Public interest was considered relevant to the release the information to the Applicant.
Findings: The Review Officer made the following findings:
1.The Record is largely made up of the Applicant’s personal information, to which s/he is prima facie entitled under the Act and the Commission should return the $5 application fee to the Applicant.
2.Subsection 15(1)(c) of the Act does not apply and the Commission erred in relying on this exemption as there was no evidence that the release of the Record could reasonably be expected to harm the effectiveness of the Commission’s investigative techniques.
3.For all mandatory exemptions, even if claimed late or not claimed at all, it is incumbent on the Review Officer to consider their applicability to the Record.
4.Subsection 20(1) of the Act does apply in this case and the Applicant is not taking issue with it being applied. S/he did not want access to third party information and therefore does not have the burden of proof to access it.
5.The Commission erred by relying only on s. 21(1)(c) and not on the whole of the exemption under s. 21. Second, the Commission failed to meet its onus to provide evidence or information to meet the three-part-test in s. 21 of the Act.
6.The Commission erred by applying all of the exemptions as blanket exemptions and therefore, the Commission has erred in failing to exercise its discretion as to how each of the discretionary exemptions, in particular s. 15(1)(c), applies to each line of the Record. On review of the content of the whole Record, I find that it is not possible that any of the exemptions could apply to the Record in its
entirety.
7.The public interest in s. 31 of the Act is served by the Commission providing the Applicant with access to all of his/her personal information in the IIROC Report in the Record.
8.The Commission inappropriately operated on the basis that the confidentiality provision in s. 29A of the Securities Act prevailed over the Act. The Commission erred in exercising its discretion when it represented that the confidentiality provisions in the Securities Act
trumped the Applicant’s right of access in the Act.
9.All the late discretionary exemptions are rejected and I find that to allow the Commission to claim exemptions this late downplays the importance of timelines and is not in the public interest.
10.The Commission has breached its statutory duty to assist under s. 7 of the Act.
Recommendations: The Review Officer made the following recommendations to the Commission:
1. To return the $5 application fee charged to the Applicant; and 2. To release the complete Record to the Applicant with all third party personal information severed.
Key Words: affidavit, agent, burden, clients, concrete evidence, confidential, consent, counsel, discretion, employers, evidence, fee, financial, harm, inter-governmental, investigation, investigative techniques, investors, late exemptions, law enforcement, onus, paramount, personal information, professional organization, prosecution, public interest, redacted, self-regulatory, third party, trump, work.
Statutes Considered: Freedom of Information and Protection of Privacy Act, ss. 2, 3(1)(i), 4A, 5(2), 7, 11(4), 12(1)(a), 15(1)(a), 15(1)(c), 15(1)(f), 20(1), 20(3), 20(5), 21(1), 31(1), 31(4), 38, 45; Securities Act ss. 27, 29, 29A, 29AA, 29EA, 30.
Case Authorities Cited: Nova Scotia Review Reports FI-08-23, FI-09-40, FI-07-38, FI-02-81, FI-08-107, FI-07-04, FI-04-42, FI-03-14, FI-02-37; OPC 2009-018; Atlantic Highways Corporation v. Nova Scotia [1997 CanLII
11497 (NSSC)]; Chesal v. Attorney General of Nova Scotia [2003 NSCA 124]; Grant v. Torstar Corp., [2009 SCC 61]; Turnpointe Wealth Management Inc and F.S. [Review of Director’s Decision, NS Securities Commission, August 19, 2010].
Other Cited: FOIPOP Review Office Late Exemption Policy; Securities Act Recognition Order [Section 30]; IIROC website:
Mary Kennedy
Intake/Administration
Freedom of Information & Protection of Privacy Review Office
Tel: (902) 424-4684
Fax: (902) 424-8303
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