Friday, 20 September 2013

Public Interest Immunity and Good Record Management

Where disclosure of documents would be detrimental to the public interest, courts have the power to refuse it (see e.g. here). So-called public interest immunity is a hugely important topic, especially where the powers of public bodies are concerned. The issue very recently divided a very strong bench of the Federal Court of Appeal in an important case, Slansky v. Canadian Judicial Council, 2013 FCA 199 (not yet on FCA website; link courtesy of Rob Centa).

The division sheds light on the nature of public interest immunity and how best courts might respond to claims that information should not be disclosed. In particular, their power to manage the judicial-review record might be usefully employed to minimize the damage to the rule of law that sweeping claims of immunity can do.

The public interest immunity question arose in the following context. An investigation was initiated by the Council of a complaint made by Mr. Slansky against a judge who presided at a criminal trial. The Council is the statutory body established under the Judges Act to address allegations of misconduct leveled at federally appointed judges. Its procedures are rigorous, as one would expect given the sensitive subject-matter of its investigative jurisdiction.

On the strength of a report based on the transcripts and interviews with witnesses, prepared by the eminent criminal-law professor and former Dean of the University of Toronto Law School, Martin Friedland, the Council decided to dismiss the complaint.

Mr. Slansky sought judicial review of this decision. The Council refused to release Friedland's report to Mr. Slansky. Two reasons were given. First, the Council claimed solicitor-client privilege. A majority of the Federal Court of Appeal (reasons by Evans J.A. on this point) held that the report was privileged. Second, the Council invoked public interest immunity. A majority (reasons by Mainville J.A. on this point) again held in favour of the Council. But there was a strong dissent on both points by Stratas J.A. On the public interest immunity point, I found Stratas J.A.'s reasons compelling.

For the majority, Mainville J.A. held that the Council's interest in persuading individuals to cooperate with its inquiries was strong enough to justify the refusal to disclose the report. Some individuals had agreed to cooperate only because a promise of confidentiality was made. The information made available to Mr. Slansky was sufficient to permit judicial review of the decision. The balance lay in favour of refusing disclosure:
[159] Any resulting damage to the public interest in the due administration of justice is non-existent or minimal at best. On the other hand, the disclosure of the report would negate, without justification, the undertakings of confidentiality provided by the Council to the third parties who participated in the process, undertakings which were made at the behest of Mr. Slansky himself.
And yet, as Stratas J.A. observed, it would be difficult for a reviewing court to assess the reasonableness of the Council's decision to dismiss the complaint without having considered the report:
[308] Without the Friedland Report – the main source of facts for the Council’s decision – how can Mr. Slansky argue the decision is not supported by the facts placed before the Council? And without the Friedland Report – the only investigation in the case – how can Mr. Slansky argue the investigation was inadequate?
No doubt there were good reasons not to disclose the report, as Mainville J.A. accepted. But Stratas J.A. explained that any concerns could be addressed by applying the Federal Court Rules to limit the amount of information made publicly available:
[280] In my view, the interaction of these Rules and powers gives the court considerable remedial flexibility. On a Rule 318 motion, in cases where the strict Sierra Club test for sealing is met, the Court can do more than just uphold or reject the administrative decision-maker’s objection to disclosure of the material that was before it. Among other things, the Court can order that the requesting party and the Registry receive the material with suitable deletions to respect confidentiality, and the reviewing court receive the original, unedited version of the material so it can meaningfully review the administrative decision.
The interests of the Council in maintaining confidentiality could thus be assured without resort to a sweeping application of public interest privilege.

Judges rarely unveil all of the weaponry they have in their procedural arsenal. Quite why, I do not know. Selective editing surely does much less violence to the rule of law than refusing to disclose information at all. As Stratas J.A. put it, "Immunizing part of the Council’s decision offends the principle that all holders of public power should be accountable for their exercises of power" (at para. 313). His persuasive approach will hopefully attract future adherents.

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