When Does an Administrative Record Become a Public Document?

An interesting question, answered in Edmonton (Police Service) v Alberta (Law Enforcement Review Board), 2014 ABCA 267. A complaint was made against a police officer but dismissed by the Chief of the Edmonton Police Service after an internal review. The complainant appealed to the Board.

A report of the internal review was made available for the hearing by the Board. At this point, the record was reviewed by the complainant’s lawyer, who took the view that part of the record disclosed a basis for an independent complaint against the police. This complaint was filed by the lawyer and heard by the Board. An interlocutory issue arose: could the lawyer rely on the record as a basis for his own complaint?

The Board said he could:

[9]           …In allowing the application, it concluded that while the contents of the Record, including the four pages in question, were subject to an implied undertaking, that undertaking that would be exhausted when the Record became available to the public at the conclusion of the hearing before it.

[10]           It reasoned that the Record was analogous to an exhibit entered in a civil trial; the contents of such an exhibit could be confidential among the parties prior to its entry but thereafter would be open to public view. As the hearing in question was conducted entirely in writing, it concluded that the last moment in which the Record could be considered to have been “entered”, as if it were an exhibit, was at the close of the evidentiary portion of the hearing and thus concluded that it became available to the public at that time, subject to a successful application to redact or seal some part of it.

Bielby J.A. explained that “The implied undertaking of confidentiality in civil litigation prohibits litigants from using evidence obtained in compelled pre-trial discovery or disclosure for any collateral purpose, other than the litigation in which it was produced” (at para. 34). The logic applied just as much to administrative proceedings: “Holding parties who receive the Record under an implied obligation not to use information in it for a collateral purpose promotes the public interest in obtaining full disclosure of [relevant] material…, just as this promise of confidentiality supports the obligation of complete disclosure between parties in civil actions” (at para. 37). But, Bielby J.A. acknowledged (at para. 39), the analogy between administrative proceedings and disclosure in civil litigation could not be pushed too far:

(a)               The Rules of Court which govern civil procedure require each party to make full disclosure of all relevant and material information in their hands, with no right to resist production of information which is “sensitive” or “confidential”. The quid pro quo is that the law insists that the information be used for the civil litigation in which it was produced and for nothing else. This is described as being an “implied undertaking” that the recipient of the information will not use it for a collateral purpose. It is, of course, not an undertaking at all but really a rule of law.

(b)               The rationale in play in the LERB context is quite different. When the complainant appeals to the LERB, the Chief must file the record and the complainant gets a copy. This follows from the principle of being entitled to know the case one has to meet. There is no reciprocal obligation on the complainant to provide any information to the Chief or to the LERB.

(c)               In civil litigation the implied undertaking arises because the party who makes disclosure has a direct interest in keeping its contents confidential. Here the Chief makes the disclosure by way of the Record to meet the obligations imposed by the Police Act, but otherwise has no personal interest in keeping its contents confidential. Rather, at best, the Chief is a surrogate rights holder on behalf of all the people who, although not parties to the matter under appeal to the LERB, have private information contained in the Record. The issue here is “transparency” of public law proceedings, not the balancing of the rights of two private parties engaged in litigation.

(d)               In any event, once a decision of the LERB is appealed to the Court of Appeal the contents of the Record will become accessible to the public, as it is required to be filed as part of the documents supporting the appeal. There is no situation in which information disclosed in civil litigation which is not entered as an exhibit at trial will later become accessible to the public.

The Court upheld the Board’s conclusion that the record becomes public at the conclusion of the Board’s appeal hearing:

[48]           An analysis of the nature of a Record supports the conclusion, however, that it does become publicly available at the conclusion of the LERB appeal hearing because it is more akin to a publicly available transcript of the evidence heard at trial, or exhibits entered at trial, than to pre-trial disclosure for the following reasons…:

(a)               The LERB receives and considers the entire Record in hearing the appeal from the Chief’s decision, rather than just the portions of it upon which he relied or upon which the parties wish to rely in making their submissions; this obligation makes the Record similar to evidence given at a civil trial, both oral and in exhibit form, rather than disclosure made in advance of that trial;

(b)               A LERB appeal is a second-step procedure, consisting of a review of an initial adjudication on a set of facts while a civil trial results in an initial adjudication…The Record here is thus more analogous to the Record considered by the Court of Queen’s Bench on an application for judicial review or placed before the Court of Appeal on a statutory appeal, both of which become publicly available upon filing with the court, than to pre-trial disclosure;

(c)               There is a public interest present in allowing wide access to the evidence considered by both the Chief and the LERB in discharge of their duties under the Police Act, as reflected in the requirement in s 20(1)(l) of the Police Act that LERB hearings be conducted in public…By comparison, there is limited public interest in the evidence led at civil trials between private parties yet there is almost unlimited public access to that evidence;

(d)               Where the LERB conducts an oral hearing to receive evidence which was not before the Chief in making his initial adjudication, a member of the public, including the media, attending the hearing would need access to the Record to understand the full evidentiary landscape, to avoid being left with an incomplete impression created by the new oral evidence alone;

(e)               As noted above, where an LERB decision is appealed to the Court of Appeal, the parties may file the entire contents of the Record as evidence relevant to the appeal. The Record thus becomes publicly available. While noting that it is not in the public interest to create a situation where appeals are filed only as a means to achieve the ability to use evidence found in a Record, the fact that the evidence may ultimately become publicly available in this fashion in any event supports the conclusion that it should be publicly available at this earlier stage; and,

(f)               Public safety concerns and third party/police officer privacy and safety concerns which might arise from allowing members of the public to use information contained in a Record for a collateral purpose can be addressed by seeking an order for severance or sealing of the implicated portions of a Record, pursuant to the thoughtful process outlined by the LERB at para 65 of its decision. Indeed, an interested party may apply for a direction that certain documents be excluded from a Record prior to its preparation and provision to the LERB.

The use of redaction techniques to safeguard personal information was endorsed by the Supreme Court of Canada in a recent case involving the use of wiretap material in civil proceedings (Imperial Oil v. Jacques, 2014 SCC 66, at para. 83).

A standard of reasonableness was applied to the Board’s decision, which makes sense given the tendency to treat administrative applications of legal concepts (such as undertakings) with deference (at para. 21). Although there are other cases that apply a correctness standard to matters of confidentiality on the basis that a uniform application of the principle is required, the issue here related solely to the Board’s home statute.

On another point, relating to the interaction between the Board’s home statute and provincial freedom of information legislation, Bielby J.A. applied a standard of correctness, because “The extent to which the operation of FOIPPA may limit or prevent the operation of pre-hearing disclosure in relation to administrative tribunals is one which is of central importance to the legal system as a whole” (at para. 18).

This content has been updated on October 22, 2014 at 11:59.