Cain v. Canada (Health)

Cain v. Canada (Health)
Court (s) Database
Federal Court Decisions
Date
2023-01-25
Neutral citation
2023 FC 55
File numbers
T-637-20, T-641-20, T-645-20
Notes
Digest
Decision Content
Date: 2023011325
Docket: T-645-20
T-641-20
T-637-20
Citation: 2023 FC 55
Ottawa, Ontario, January 13 25, 2023
PRESENT: Mr. Justice Pentney
Dockets: T-641-20, T-645-20
BETWEEN:
PATRICK CAIN
Applicant
and
MINISTER OF HEALTH
Respondent
and
THE PRIVACY COMMISSIONER OF CANADA
Intervener
Docket: T-637-20
BETWEEN:
MOLLY HAYES
Applicant
and
MINISTER OF HEALTH
Respondent
and
THE PRIVACY COMMISSIONER OF CANADA
Intervener
PUBLIC JUDGMENT AND REASONS
(Amended Confidential Version issued on January 25, 2023)
I. Introduction
[1] This case concerns a rather unusual question: was Health Canada justified in refusing to release some of the second and third characters of postal codes of individuals licensed to grow medical marijuana under the licensing regime that was in place before it was legalized, as well as the names of some of the cities where such licensed production occurred?
[2] What this case is really about, however, is the balance between the fundamental right to personal privacy and an individual’s right to access information held by the government. More particularly, the case raises the question of the appropriate analytical approach to measuring privacy risks in relation to the release of information from structured datasets that contain personal information.
[3] The Respondent, Health Canada, released the first character of the relevant postal codes relating to licenses to grow medical marijuana (either for personal use or as a “designated producer” for someone else), but refused to release more information. It takes the position that there is a serious possibility that this data, when combined with other information that is already available, could lead to the identification of specific individuals.
[4] All parties to this proceeding agree that information that could identify a specific individual who has a medical marijuana license is personal information that is protected from disclosure. The explanation for this is simple: individuals obtained licenses by providing medical information about their health condition to justify their use of medical marijuana, and information about one’s health is among the most deeply personal information imaginable.
[5] The parties disagree, however, about whether the information in dispute, namely the second and third characters of some postal codes and the names of some cities, is personal information. Health Canada refused to release this information because of the risk that it could be combined with other information already in the public domain to identify specific individuals. The Information Commissioner, on behalf of the Applicants, disputes this.
[6] The parties also disagree about the degree of effort Health Canada is required to undertake in order to release information in a way that protects personal information. Health Canada says it should not be required to assess each of the hundreds of postal codes within the relevant datasets in order to determine whether any of them pose little or no risk. The Information Commissioner disagrees, arguing that Health Canada has already created a computer code that can automate this process.
[7] The Privacy Commissioner intervened in this case, but limited his submissions to the proper application of the legal tests to the type of structured datasets involved in this case, and the related question of the appropriate analytical framework to be applied in assessing the privacy risks associated with the release of data from such datasets.
[8] For the reasons that follow, the application is dismissed. I find that Health Canada was justified in refusing to release more information, because of the serious possibility that it could lead to a breach of privacy through the identification of an individual in the datasets. I also find that Health Canada was not required to undertake a more detailed analysis of the risks associated with releasing more information pursuant to its obligation to sever and release as much information as is reasonable.
II. Background
[9] These consolidated applications were brought by the Information Commissioner on behalf of the named Applicants, David Patrick Cain and Molly Hayes, pursuant to subsection 41(1) of the Access to Information Act, RSC 1985, c A-1 [ATIA], challenging Health Canada’s refusal to disclose parts of the postal codes and, for Ms. Hayes’ request, the names of cities associated with licenses to grow medical marijuana. Before examining the procedural history of the access to information requests filed by Ms. Hayes and Mr. Cain, I will begin with a brief explanation about Canadian postal codes, because they are integral to an understanding of the dispute before the Court.
A. Postal Codes in Canada
[10] Canadian postal codes contain six characters, divided into two groups of three. The first three characters are called a Forward Sortation Area (FSA), which identify major geographic divisions in an urban or rural location. The last three characters are called a Local Delivery Unit, which identify the smallest delivery zone within an FSA.
[11] The first character of a postal code represents a postal district. Quebec and Ontario, for example, are divided into three and five postal districts respectively. These provinces have one urban area with a population large enough to have a dedicated postal district represented by a letter (“H” for the Montreal region and “M” for Toronto). By way of contrast, although Nunavut and the Northwest Territories comprise a vast swath of Canada’s geography, their populations are so small that they share a single FSA.
[12] The second character of an FSA identifies the area as either urban or rural, with a zero indicating a wide-area rural region and all other digits indicating urban areas. The third character of the FSA represents a specific rural region, an entire medium-sized city, or a section of a major city. For example, the first three characters of the Federal Court’s Ottawa postal code (K1A) indicate that its mailing address is located in downtown Ottawa; the final three characters specify the location with a greater degree of precision.
[13] In Canada, an FSA may refer to a densely populated urban location, or a sparsely populated rural area spread over a large territory. Statistics Canada has published a document entitled “2016 Population and Dwelling Count by FSA” which shows that in 2016 the majority of FSAs had populations above 10,000. This document also reveals the wide disparity in population counts, ranging from zero inhabitants to 139,128.
B. Molly Hayes’ Request (Court File Number: T-637-20)
[14] In August 2017, Ms. Hayes made an access to information request to Health Canada for the following information:
List of addresses of all licensed personal production ACMPR grow operations in Canada that have been authorized by Health Canada to possess 244 or more indoor marijuana plants, and/or 95 or more outdoor plants, and/or 35,625 grams or more in storage at any time (emphasis in original).
[15] The requested information was obtained by Health Canada under the regulatory regime for the possession and cultivation of medical marijuana that was in place at the time; namely, the Access to Cannabis for Medical Purposes Regulations, SOR/2016-230 [ACMPR or the Regulations]. Under this scheme, individuals could apply for licenses to grow their own medical marijuana, either at their place of residence or elsewhere, or they could designate someone else to grow it for them. In order to obtain such a license, the individuals had to provide personal information about the location where cultivation would occur, as well as medical information justifying their use of medical marijuana.
[16] There had been previous regulations that governed such matters, but this scheme has now been replaced by the Cannabis Act, SC 2018, c 16 and the Cannabis Regulations, SOR/2018-144.
[17] Health Canada responded to Ms. Hayes’ request on October 16, 2017. The relevant record, created by the Controlled Substances and Cannabis Branch from a database it maintained, is a list of 575 addresses, including civic numbers, street names, city and province names, and postal codes. Health Canada’s Access to Information and Privacy (ATIP) Division found most of the information to be personal information and thus exempt from disclosure under section 19 of the ATIA. The ATIP Division applied severance to the record and only disclosed the province names.
[18] On October 31, 2017, Ms. Hayes registered a complaint with the Office of the Information Commissioner about the refusal to disclose the other information. The Information Commissioner agreed with Health Canada that the subsection 19(1) exemption for personal information applied to the civic numbers, street names, and the last three digits of postal codes, and therefore this information was not to be disclosed. However, the Commissioner asked Health Canada to determine whether additional portions of the postal codes and the city names could be disclosed. Health Canada subsequently agreed to release the first character of the postal code but refused to release any other information, claiming it was “personal information” because it could lead to identification of the licensed individual when combined with other, previously released information. Health Canada also asserted that it was unreasonable to require it to analyze each FSA separately to determine the risk of re-identification. This is discussed in further detail below.
[19] The Information Commissioner agreed with Health Canada that disclosing city names or complete FSAs for locations with a small population created a risk of identification, but she was not convinced that such a risk arose from the disclosure of city names or FSAs for more populous areas. She also disagreed with Health Canada’s assertion that it was not reasonable to ask it to analyze each FSA to determine which could be disclosed.
C. Mr. Cain’s Request (Court File Numbers: T-641-20 and T-645-20)
[20] In October 2017, Mr. Cain requested access to:
A document in a sortable format, such as .txt, .cvs, or .xls, showing the first three characters of the postal codes of personal or designated producers of medical cannabis, or alternatively totals by the first three characters of the postal code, with personal and designated growers broken out from each other.
A document in a sortable format, such as .txt, .cvs, or .xls, showing the first three characters of the postal codes of registered users of medical marijuana, or alternatively totals by the first three characters of the postal code.
[21] In response to the first request, the Controlled Substances and Cannabis Branch created two spreadsheets of information related to personal and designated cannabis producers for medical purposes, listing FSAs and corresponding numbers of registered personal producers (11,100) and registered designated producers (673), respectively.
[22] On the second request, the Branch noted that the term “registered user” was not defined under the scheme. Instead, it created a spreadsheet including the province and FSA for 11,843 individuals, who were licensed to cultivate medical marijuana or had designated someone else to do so on their behalf.
[23] Health Canada’s ATIP unit examined these records, and disclosed the first character of approximately 11,773 FSAs on the first request, and the first character of approximately 11,842 FSAs for the second. As it had done with the Hayes complaint, Health Canada refused to disclose the second and third characters of the FSAs pursuant to subsection 19(1) of the ATIA. Mr. Cain complained about the incomplete disclosure to the Information Commissioner.
[24] On May 7, 2020, following an investigation of Mr. Cain’s complaint, the Information Commissioner accepted that disclosure of FSAs with small populations would create a serious possibility of identification of individual producers and users, but was not convinced this was the case for most FSAs because their populations were larger. The Information Commissioner found that Health Canada’s blanket refusal to release more information was not justified, because the risk of re-identification of the designated persons did not meet the legal test, and Health Canada’s refusal to undertake the necessary analysis was not justified.
D. Health Canada’s Final Decisions
[25] On January 20, 2020, Health Canada responded to the Information Commissioner’s reports on the complaints, indicating it did not intend to implement the Information Commissioner’s recommendations to disclose the FSAs and cities.
[26] Health Canada maintained its position that the FSAs and cities were personal information that it was obliged to exempt from disclosure under subsection 19(1) of the ATIA, and explained that it would not release the information under any of the discretionary exceptions listed in subsection 19(2). It stated that the release of the second and third characters of the FSAs and/or the names of the cities, when combined with other available information (including details disclosed pursuant to previous access requests) would create a serious possibility that individuals could be identified. Health Canada asserted that because of this risk, the information fell within the definition of “personal information” and was therefore exempt from disclosure.
[27] The Information Commissioner, acting pursuant to paragraph 42(a) of the ATIA, launched applications for judicial review of the Health Canada final decisions. By order of the Court dated August 27, 2020, the matters were consolidated.
[28] The Privacy Commissioner was granted leave to intervene in the proceeding, and was granted access to the confidential information that had been filed. The Privacy Commissioner was permitted to file a memorandum of fact and law and to make oral submissions; the other parties were granted a right of reply to both.
E. Issues and Standard of Review
[29] Two main issues arise in this case:
Is the Minister authorized to refuse disclosure of the records at issue pursuant to subsection 19(1) of the ATIA, because they constitute personal information?
Did the Minister correctly refuse to further sever the records pursuant to section 25 of the ATIA?
[30] The parties largely agree on the issues and the law applicable to these cases, other than one question relating to the standard of review. The primary debate between the parties, and the intervener’s main focus concerns the application of the legal principles to the particular situation before the Court, including the proper analytical approach to assessing the risk of releasing information from structured datasets such as the medical marijuana licensing records held by Health Canada.
[31] On the standard of review for the first issue, the law is clear. Pursuant to section 44.1 of the ATIA, reviews under section 41 are heard de novo, as a new proceeding. This has been described as “stepping into the shoes of the Minister” to determine whether the refusal to disclose is authorized under the law (Suncor Energy Inc. v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2021 FC 138 [Suncor Energy] at para 68). In reality, this means that the Court “is to reach its own conclusion as to whether the information at issue is exempt from disclosure under subsection 19(1), i.e., it must determine whether the mandatory exemption has been applied correctly” (Canada (Information Commissioner) v Canada (Public Safety and Emergency Preparedness), 2019 FC 1279 [Public Safety] at para 40). The burden is on Health Canada to establish that it was authorized to refuse to disclose the information. The parties agree on these points.
[32] As regards the second issue, however, the parties diverge. Prior case law has found that a Minister’s exercise of discretion pursuant to subsection 19(2) is subject to review on the reasonableness standard (see, for example, 3430901 Canada Inc. v Canada (Minister of Industry), 2001 FCA 254, [2002] 1 FC 421 [Telezone]; Public Safety at para 41). The Respondent submits that the same approach should be followed to reviewing its decision not to sever any of the records pursuant to section 25 of the ATIA, citing Attaran v Canada (National Defence), 2011 FC 664 [Attaran] at paras 18-19.
[33] The Information Commissioner disagrees with this position, asserting that under section 25 of the ATIA, severance is mandatory and it should therefore be treated as part of the de novo review power under section 44.1. On this view, the Minister is not authorized to refuse to disclose parts of the record that can reasonably be severed, and therefore the Court should reach its own conclusion on whether section 25 was properly applied to the records. The Information Commissioner submits that Attaran should not be followed because it has been overtaken by more recent case law.
[34] It does not appear that this specific question has been addressed in any cases since Attaran. The main question on this issue is the degree of effort required to meet the obligation under section 25; flowing from that is the question of whether Health Canada’s refusal to sever and release more information from the records is in accordance with the standard that the law requires.
[35] Two things are not in dispute: (i) parts of the records that are responsive to the requests contain personal information; and (ii) Health Canada has exercised its authority under section 25 to partially sever the records, by releasing the first character of the relevant postal codes. The argument in this case focuses on whether Health Canada is required to undertake a more rigorous review, and whether more information should be disclosed.
[36] Based on this, it is clear that at least part of the records in question contain personal information (e.g. the specific home addresses of licensed users, or the full FSAs for areas with a very small population), and thus Health Canada was authorized to refuse to disclose this portion of the record. No one questions that. The only argument relates to whether more information should have been disclosed. On this point, the debate is about whether conducting the sort of “mosaic analysis” (or linking analysis) that would be required to assess the specific risks associated with releasing the names of some cities, and the second and/or third letters of each FSA, goes beyond what the statute requires of a government institution.
[37] In some respects, the facts in Attaran are similar to this case insofar as the records contained some personal information, the government institution had released portions of the requested documents, and the debate concerned whether the government institution’s refusal to release more of the details was justified. Justice Barnes’ analysis on this point is worth citing in full:
[18] I accept that the issue of “whether severability has been duly considered” is to be assessed on the standard of correctness: see 3430901 Canada Inc. v. Canada (Minister of Industry), 2001 FCA 254, [2002] 1 FC 421 at para 39 [Telezone]. I do not agree, though, that the application of that obligation to the evidence is to be judged on that same basis. In my view, deciding whether photographs are severable is an exercise which requires the application of some professional judgment, and thus the standard of reasonableness applies. Notwithstanding the Court’s obligation to pay deference to the decision-maker’s approach to redaction, I am satisfied that the reasonableness standard is sufficiently robust to deal with situations of clearly unwarranted overreaching by the government.
[19] Section 49 of the ATIA deals with the judicial review of withholding decisions made, inter alia, under s 19 of that Act. In Canada (Information Commissioner) v Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 SCR 66, the Supreme Court of Canada carried out a detailed standard of review analysis in connection with this provision and held that the determination of what was or was not “personal information” under s 19 of the ATIA should be reviewed for correctness and that the burden of the proof on that point rests with the government. Once it is determined that the decision-maker has correctly exercised that authority, the Court held that the de novo review power is “exhausted”. I take that to mean that in the subsequent assessment of a possible redaction of a record authorized by s 25 of the ATIA or in the balancing of privacy rights against the public interest authorized by ss 8(2)(m)(i) of the Privacy Act, the decision-maker’s discretion is reviewable on the standard of reasonableness: see Attaran v Canada, 2009 FC 339, 342 FTR 82 at paras 28-32 and Telezone, above, at para 47. It follows that the Respondent’s decisions not to redact the detainee photographs and to refuse the release the photographs on public interest grounds are reviewable on the basis of reasonableness.
[38] On this approach, the inexorable consequence of the fact that the Respondent was authorized to refuse to disclose at least part of the records in question, and that it specifically considered which parts of the record could be severed, is that the de novo review power is exhausted and the question of whether more information should be disclosed must be reviewed on the standard of reasonableness.
[39] The key question is whether the ruling in Attaran has been affected by the Supreme Court of Canada’s decision in Merck Frosst Canada Ltd. v Canada (Health), 2012 SCC 3 [Merck Frosst].
[40] In Merck Frosst, the Supreme Court of Canada set out the key principles that govern the application of section 25:
[237] The heart of the s. 25 exercise is determining when material subject to the disclosure obligation “can reasonably be severed” from exempt material. In my view, this involves both a semantic and a cost-benefit analysis. The semantic analysis is concerned with whether what is left after excising exempted material has any meaning. If it does not, then the severance is not reasonable. As the Federal Court of Appeal put it in Blank v. Canada (Minister of the Environment), 2007 FCA 289, 368 N.R. 279, at para. 7, “those parts which are not exempt continue to be subject to disclosure if disclosure is meaningful”. The cost-benefit analysis considers whether the effort of redaction by the government institution is justified by the benefits of severing and disclosing the remaining information. Even where the severed text is not completely devoid of meaning, severance will be reasonable only if disclosure of the unexcised portions of the record would reasonably fulfill the purposes of the Act. Where severance leaves only “[d]isconnected snippets of releasable information”, disclosure of that type of information does not fulfill the purpose of the Act and severance is not reasonable: Canada (Information Commissioner) v. Canada (Solicitor General), 1988 CanLII 9396 (FC), [1988] 3 F.C. 551 (T.D.), at pp. 558-59; SNC-Lavalin Inc., at para. 48. As Jerome A.C.J. put it in Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), 1988 CanLII 9466 (FC), [1989] 1 F.C. 143 (T.D.):
To attempt to comply with section 25 would result in the release of an entirely blacked-out document with, at most, two or three lines showing. Without the context of the rest of the statement, such information would be worthless. The effort such severance would require on the part of the Department is not reasonably proportionate to the quality of access it would provide. [Emphasis added; pp. 160-61.]
[238] That said, one must not lose sight of the purpose of s. 25. It aims to facilitate access to the most information reasonably possible while giving effect to the limited and specific exemptions set out in the Act: Ontario (Public Safety and Security), at para. 67.
[41] The Court found that the role of a reviewing judge is to “consider whether the institutional head had properly applied s. 25.” (Merck Frosst at para 232).
[42] In light of Merck Frosst, I am persuaded that the question of how much effort is required to meet the section 25 severance obligation should be treated as part of the de novo review, rather than as a discretionary decision. The text of the provision and its place in the scheme of the ATIA support that view. In my view, the discussion of the standard of review in Attaran has been overtaken by the Supreme Court of Canada’s decision in Merck Frosst, which is binding on me. Following its guidance, I will examine the Respondent’s decision on severance de novo, to determine whether it properly applied section 25.
[43] This approach is also consistent with the nature of the review as required under the Act. Subsection 48(1) sets out the burden of proof in proceedings under section 41, which involves establishing either that the head of the government institution “is authorized to refuse to disclose a record…or a part of such a record…” [emphasis added], and this is mirrored by section 49, which sets out the powers of the Court. Under the interpretation of section 25 adopted in Dagg v Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 SCR 403 [Dagg] and Merck Frosst, the government institution is not “authorized” to refuse to disclose a part of a record that can reasonably be severed under section 25.
[44] To be clear, I understand this to entail a two-step process. First, a reviewing court must determine whether the government institution fulfilled its obligation to consider severance under section 25. If not, the reviewing court must do that, in the context of its de novo review. This has been done by the court in many previous cases, and in some of these, the court ordered that portions of records be disclosed as required under section 25 (see, for example, Concord Premium Meats Ltd. v Canada (Food Inspection Agency), 2020 FC 1166 [Concord]).
[45] The second step involves assessing de novo whether it is reasonable to disclose only a portion of the record. The analysis of this question turns on a number of considerations set out in the case law. The guiding principle has been described in a pithy way by Associate Chief Justice Jerome: “Disconnected snippets of releasable information taken from an otherwise exempt passage are not reasonably severable” (Canada (Information Commissioner) v Canada (Solicitor General), [1988] 3 FC 551 (TD) at page 559, cited with approval in Merck Frosst at para 237).
[46] As discussed below, the crux of the issue in this case concerns the second step because the Respondent claims that requiring it to undertake a more detailed analysis of the risks of re-identification goes beyond what is reasonable as contemplated by section 25.
III. Analysis
[47] The parties acknowledge that this is a matter of first impression because none of the prior cases have dealt with the precise questions raised here. Before discussing the specific issues raised by this case, it will be helpful to set out the legal framework that applies.
A. The Legal Framework
[48] The key elements of the legal framework that governs this proceeding were summarized by Justice McHaffie in Public Safety at paras 25-37, and it is not necessary to repeat them in detail. The points most relevant to this case include the following:
Both access to information and the protection of privacy have been recognized as fundamental rights. The ATIA and the Privacy Act have been described as quasi-constitutional by virtue of the rights they seek to protect: Canada (Information Commissioner) v Canada (Minister of National Defence), 2011 SCC 25 at para 40; H.J. Heinz of Canada Ltd. v Canada (Attorney General), 2006 SCC 13 [Heinz] at para 28;
The ATIA sets out the general principle that the public has the right to access information in records that are under the control of government, which enhances accountability and transparency in government and promotes an open and democratic society: Merck Frosst at paras 1, 21-22;
The protection of privacy is also a fundamental value, enshrined in the Canadian Charter of Rights and Freedoms (for example, the guarantee against unreasonable search and seizure in section 8) as well as the Privacy Act. The Privacy Act protects “personal information” from release, which is defined in a non-exhaustive and non-restrictive manner. The general definition states: “personal information means information about an identifiable individual that is recorded in any form” (emphasis added);
The ATIA and the Privacy Act must be interpreted in parallel, and since both statutes contain an express exemption of personal information from disclosure, privacy rights must be recognized as “paramount” over access to information to the extent that the information falls within the definition of “personal information”: see Dagg at para 48; Heinz at para 28;
The definition of “personal information” in section 3 of the Privacy Act is “undeniably expansive” and “deliberately broad”; its intention is to capture “any information about a specific person subject only to specific exceptions” (Dagg at paras 65, 68-69);
Subsection 19(1) of the ATIA sets out a mandatory exemption from the right to access for personal information, as defined in section 3 of the Privacy Act:
Personal information
Renseignements personnels
19 (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Part that contains personal information.
19 (1) Sous réserve du paragraphe (2), le responsable d’une institution fédérale est tenu de refuser la communication de documents contenant des renseignements personnels.
Personal information obtained in confidence
Renseignements personnels obtenus à titre confidentiel
19 (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any personal information requested under subsection 12(1) that was obtained in confidence from
(a) the government of a foreign state or an institution thereof;
(b) an international organization of states or an institution thereof;
(c) the government of a province or an institution thereof;
(d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government;
(e) the council, as defined in the Westbank First Nation Self-Government Agreement given effect by the Westbank First Nation Self-Government Act;
(f) the council of a participating First Nation as defined in subsection 2(1) of the First Nations Jurisdiction over Education in British Columbia Act; or
(g) a First Nation Government or the Anishinabek Nation Government, as defined in section 2 of the Anishinabek Nation Governance Agreement Act, or an Anishinaabe Institution, within the meaning of section 1.1 of the Agreement, as defined in section 2 of that Act.
19 (1) Sous réserve du paragraphe (2), le responsable d’une institution fédérale est tenu de refuser la communication des renseignements personnels demandés en vertu du paragraphe 12(1) qui ont été obtenus à titre confidentiel :
a) des gouvernements des États étrangers ou de leurs organismes;
b) des organisations internationales d’États ou de leurs organismes;
c) des gouvernements provinciaux ou de leurs organismes;
d) des administrations municipales ou régionales constituées en vertu de lois provinciales ou de leurs organismes;
e) du conseil, au sens de l’Accord d’autonomie gouvernementale de la première nation de Westbank mis en vigueur par la Loi sur l’autonomie gouvernementale de la première nation de Westbank;
f) du conseil de la première nation participante, au sens du paragraphe 2(1) de la Loi sur la compétence des premières nations en matière d’éducation en Colombie-Britannique;
g) du gouvernement de la première nation ou du gouvernement de la Nation des Anishinabes, au sens de l’article 2 de la Loi sur l’accord en matière de gouvernance conclu avec la Nation des Anishinabes, ou d’une institution anishinabe, au sens de l’article 1.1 de l’accord, au sens de l’article 2 de cette loi.
The test to determine when information is about a particular individual was stated by Justice Gibson in Gordon v Canada (Health), 2008 FC 258 [Gordon], at paragraph 34:
“Information will be about an identifiable individual where there is a serious possibility that an individual could be identified through the use of that information, alone or in combination with other available information.”
(emphasis added)
In Public Safety, Justice McHaffie defined a “serious possibility” as:
…a possibility that is greater than speculation or a ‘mere possibility,’ but does not need to reach the level of ‘more likely than not’ (i.e., need not be ‘probable on the balance of probabilities). Applying such a standard recognizes the importance of access to information by not exempting information from disclosure on the basis of mere speculative possibilities, while respecting the importance of privacy rights and the inherently prospective nature of the analysis by not requiring an unduly high degree of proof that personal information will be released (para 53).
[49] The parties do not dispute that this is the applicable legal framework. They disagree regarding its application to the facts of the case, to which we now turn.
[50] At this stage, a reminder is in order regarding the specific requests in issue, and what remains in dispute. The Hayes request seeks the addresses of all licensed personal production relating to relatively large quantities of marijuana (244 or more indoor plants, and/or 95 or more outdoor plants, and/or 35,625 grams in storage). The Cain request seeks a document in sortable format showing the FSAs of personal or designated producers, as well as similar information about “registered users” – which Health Canada interpreted as meaning either a personal or designated producer.
[51] As to what remains in dispute, the Information Commissioner accepts that certain portions of the records in issue should not be disclosed because they contain personal information; this includes the full addresses, as well as some FSAs that refer to locales with small populations. Health Canada agreed to disclose the first character of the FSAs contained in the records. Therefore, neither of these points is in issue.
[52] However, the Information Commissioner does not accept Health Canada’s assertion that the second and third characters for other FSAs, as well as city names, should be protected from disclosure because there is a serious possibility that such data, when combined with other available information, could result in the identification of individuals.
[53] In addition, the Information Commissioner does not accept Health Canada’s claim that it would be unreasonable to ask it to review each FSA, to determine the risk associated with the release of the second and third characters. This point is discussed below, in connection with the second issue.
[54] The dispute at the centre of this case is about whether the second and third characters of FSAs with larger populations as well as city names, are protected from disclosure because there is a “serious possibility” that this data can be linked with other information to identify specific individuals. Related to this is the proper approach to assessing the risks regarding what are referred to as “structured data sets” and the methodology to assess such risks. The parties and the intervener made submissions on this question, which I discuss below.
B. Is the Minister authorized to refuse to disclose the records at issue pursuant to subsection 19(1) of the ATIA, because they constitute personal information?
[55] The onus lies on Health Canada to establish that it was authorized to refuse disclosure of the records, and thus it is appropriate to begin with their position, even though they are technically the Respondent in this proceeding. This will be followed by a summary of the Applicants’ position and a discussion of the Intervener’s submissions.
(1) Health Canada’s Case
[56] Health Canada argues that it has met the Gordon test by demonstrating that there is a serious possibility that releasing the disputed information could result in the identification of individuals, because it could be combined with other available information. Its evidence included two affidavits and an expert report. These are described in some detail below, because they constitute the bulk of the evidence before the Court on this de novo review.
(a) The Garrah Affidavit
[57] Health Canada submitted an affidavit of Joanne Garrah, the Acting Director of the Licensing and Medical Access Directorate within the Controlled Substances and Cannabis Branch. She describes the evolution of the regulatory regime for medical cannabis, the type of information that an individual must provide to obtain a license, as well as the information Health Canada publishes on its website on this subject.
[58] It is not necessary to review the history of the regulation of medical marijuana in detail; the relevant aspects of the regulatory regime in place at the time of the ATIP requests in this case have been described above.
[59] The affidavit sets out the information a person had to submit in order to obtain a registration for cannabis for their own medical purposes, including: their name, address, date of birth, and gender; their full address, telephone number, and email address; the full address of the site where the cannabis production would occur; whether it would be cultivated indoors or outdoors (and if the latter; that the location was not near a school, playground, or other place frequented by persons under 18 years of age); and whether the person would cultivate it themselves or designate someone else to do so. In addition, the person had to obtain a document from a medical practitioner specifying the amount of cannabis prescribed for daily use.
[60] The registration form included a privacy notice, which explained that: (i) the Privacy Act governs the use of the personal information that was being provided; (ii) the information “may be shared with law enforcement entities to confirm your lawful possession and production of cannabis…”; and (iii) “[i]n limited and specific situations, your personal information may be disclosed without your consent in accordance with subsection 8(2) of the Privacy Act”, and set out the person’s rights under that legislation.
[61] The affidavit also describes the types of information Health Canada collected and published on its website, including: monthly updates on the amount of cannabis sold for medical purposes; the number of personal or designated production registrations by province; the number of applications processed each month; and information for health care practitioners on medical cannabis.
(b) The MacAndrew-Donnelly Affidavit
[62] Health Canada also submitted an affidavit of Cassie MacAndrew-Donnelly, the team leader at the ATIP unit of Health Canada who has been involved in all ATIP requests regarding medical cannabis licenses since 2010. She has also been involved in all ATIP requests concerning FSAs and medical cannabis since Health Canada started receiving them in 2011.
[63] The affidavit reviews the processing history of the three ATIP requests underlying this case and then describes the other information that is available, which underpins Health Canada’s rationale for refusing disclosure. The affidavit refers to three other sources of information: data that Health Canada publishes on its website concerning medical cannabis; other sources of publicly available data about populations including the 2016 Census Data and the Statistics Canada report “Population and Dwelling Count by FSA”; as well as other publicly available information including data released in response to numerous prior ATIP requests about medi