Chesal v. Nova Scotia (Attorney General)

Chesal v. Nova Scotia (Attorney General) Court Supreme Court Date 2003-01-23 Citation 2003 NSSC 10 Docket SH 174832 Judge/Registrar/Adjudicator Coughlan, C. Richard (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Chesal v. Nova Scotia (Attorney General), 2003 NSSC 10 Date: 20030123 Docket: S.H. No. 174832 Registry: Halifax In the matter of an appeal pursuant to section 41 of The Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5 Between: John Chesal, Canadian Broadcasting Corporation CBC Radio Appellant - and - The Attorney General of Nova Scotia Respondent - and - Eskasoni Band Council, Unama’ki Board of Police Commissioners, Membertou Band Council, Waycobah Band Council and Chapel Island Band Council Third Parties Judge: The Honourable Justice C. Richard Coughlan Heard: July 2, 2002 and August 29, 2002, in Chambers, at Halifax, Nova Scotia Counsel: David G. Coles and Kelly Powell (articled clerk), for the Appellant Edward A. Gores, for the Respondent, Attorney General of Nova Scotia Charles Broderick (not appearing), for the Third Party, Eskasoni Band Council Bruce Wildsmith, Q.C. and Trevor Bernard (articled clerk), for the Third Parties, Unama’ki Board of Police Commissioners, Membertou Band Council, Waycobah Band Council and Chapel Island Band Council By the Court: [1] Canada, Nova Scotia and the Chapel Island, Eskasoni, Membertou, Wagmatcook and Whycocomagh Bands of the Unama’ki District of the Mik’maq Nation (the “Unama’ki Communities”) entered into an Agreement dated July 12, 1994 to establish policing services for the Unama’ki Communities. The Wagmatcook Band withdrew from the Agreement in accordance with Band Council resolution dated April 24, 1995 and the Membertou Band withdrew in accordance with Band Council resolution dated January 23, 2001. The Agreement was amended by amending Agreements dated November 20, 1997; February 1, 2001; April, 2001 and November 20, 2001. [2] Pursuant to the Agreement, the Unama’ki Communities established an independent police governing authority known as the Unama’ki Board of Police Commissioners (the “Board”) which governed the Unama’ki Tribal Police. [3] A review of the state of policing services provided by the Tribal Police was conducted pursuant to the Police Act, R.S.N.S. 1989, c. 348. The report titled “Unama’ki Tribal Police Focus Audit 1999" (“Audit Report”) was completed February, 2000. At the time of the Audit Report, four Bands were involved with the Agreement - Chapel Island, Eskasoni, Membertou and Whycocomagh. [4] The appellant, John Chesal, is a reporter employed by the Canadian Broadcasting Corporation (“CBC”) as a radio reporter in Sydney, Nova Scotia. On March 26, 2001 he made an application pursuant to the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5 (“FOIPOP Act”) for access to the Audit Report completed February, 2000. [5] By letter dated April 26, 2001 the Freedom of Information and Protection of Privacy Coordinator (“FOIPOP Coordinator”) sent letters to the Chiefs of the four Bands involved in the Tribal Police and the Department of the Solicitor General of Canada requesting their views on the disclosure of the Audit Report. Chief Terrance J. Paul of the Membertou Band Council responded by letter dated May 14, 2001: “We object to releasing this information.” The Coordinator, by letter dated June 14, 2001, advised Mr. Chesal of his refusal to disclose the Audit Report. [6] Mr. Chesal requested a review of the Coordinator’s decision by the FOIPOP Review Officer by request for review dated June 21, 2001. By decision dated August 23, 2001, the Review Officer recommended the Department of Justice reverse its decision to refuse disclosure. The Coordinator, by letter dated September 25, 2001, informed Mr. Chesal the Department of Justice declined to follow the Review Officer’s recommendation and continued to refuse disclosure. Mr. Chesal appealed the refusal to release the Audit Report to this Court on October 22, 2001. [7] The right of appeal to the Supreme Court is set out in s. 41(1) of the FOIPOP Act: Appeal to Supreme Court 41 (1) Within thirty days after receiving a decision of the head of a public body pursuant to Section 40, an applicant or a third party may appeal that decision to the Supreme Court in such form and manner as may be prescribed by the Nova Scotia Civil Procedure Rules or by the regulations. [8] The powers of the Court in dealing with the appeal are set out in s. 42 of the Act: Powers of Supreme Court 42 (1) On an appeal, the Supreme Court may (a) determine the matter de novo; and (b) examine any record in camera in order to determine on the merits whether the information in the record may be withheld pursuant to this Act. . . . . Court order respecting access to information (5) Where the head of the public body has refused to give access to a record or part of it, the Supreme Court, if it determines that the head of the public body is not authorized to refuse to give access to the record or part of it, shall (a) order the head of the public body to give the applicant access to the record or part of it, subject to any conditions that the Supreme Court considers appropriate; or (b) make any other order that the Supreme Court considers appropriate. Restriction on power to order where exemption (6) Where the Supreme Court finds that a record falls within an exemption, the Supreme Court shall not order the head of the public body to give the applicant access to the record, regardless of whether the exemption requires or merely authorizes the head of the public body to refuse to give access to the record. [9] The burden of proof is set out in s. 45(1) and (2) of the Act: Burden of proof on head of public body 45 (1) At a review or appeal into a decision to refuse an applicant access to all or part of a record, the burden is on the head of a public body to prove that the applicant has no right of access to the record or part. Burden of proof on applicant (2) Where the record or part that the applicant is refused access to contains personal information about a third party, the burden is on the applicant to prove that disclosure of the information would not be an unreasonable invasion of the third party’s personal privacy. [10] Mr. Chesal properly brought the appeal and, as provided in the Act, I determine the matter de novo. The burden of proof is on the respondents, except as to the refusal of that part of the record that contains personal information about a third party, in which case the burden is on Mr. Chesal. [11] The issues for the Court are as follows: 1. Is the Audit Report a document which is subject to the FOIPOP Act? 2. If the Audit Report is subject to the FOIPOP Act, is it exempted from disclosure by virtue of ss. 12(1)(a)(iii), 12(1)(b) or 12(2) of the Act? 3. If the Audit Report is not exempted from disclosure by virtue of ss. 12(1)(a)(iii), 12(1)(b) or 12(2) of the FOIPOP Act, are parts of the record exempt from disclosure as an unreasonable invasion of a third party’s personal privacy? [12] The purpose of the Act is set out in s. 2 which provides: Purpose of Act 2 The purpose of this Act is (a) to ensure that public bodies are fully accountable to the public by (i) giving the public a right of access to records, (ii) giving individuals a right of access to, and a right to correction of, personal information about themselves, (iii) specifying limited exceptions to the rights of access, (iv) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and (v) providing for an independent review of decisions made pursuant to this Act; and (b) to provide for the disclosure of all government information with necessary exemptions, that are limited and specific, in order to (i) facilitate informed public participation in policy formulation, (ii) ensure fairness in government decision-making, (iii) permit the airing and reconciliation of divergent views; (c) to protect the privacy of individuals with respect to personal information about themselves held by public bodies and to provide individuals with a right of access to that information. [13] In dealing with the question of the purpose of the Act, Saunders, J.A. stated, in giving the Court’s judgment in O’Connor v. N. S. (Minister of the Priorities and Planning Secretariat) (2001), 197 N.S.R. (2d) 154 (C.A.), at p. 166: Thus, it seems clear to me that the Legislature has imposed a positive obligation upon public bodies to accommodate the public’s right of access and, subject to limited exception, to disclose all government information so that public participation in the workings of government will be informed, that government decision making will be fair, and that divergent views will be heard. The FOIPOP Act ought to be interpreted liberally so as to give clear expression to the Legislature’s intention that such positive obligations would enure to the benefit of good government and its citizens. [14] And at p. 168: Thus the FOIPOP Act in Nova Scotia is the only statute in Canada declaring as its purpose an obligation both to ensure that public bodies are fully accountable and to provide for the disclosure of all government information subject only to “necessary exemptions that are limited and specific”. I conclude that the legislation in Nova Scotia is deliberately more generous to its citizens and is intended to give the public greater access to information than might otherwise be contemplated in the other provinces and territories in Canada. Nova Scotia’s lawmakers clearly intended to provide for the disclosure of all government information (subject to certain limited and specific exemptions) in order to facilitate informed public participation in policy formulation; ensure fairness in government decision making; and permit the airing and reconciliation of divergent views. No other province or territory has gone so far in expressing such objectives. [15] Section 3 of the Act contains various definitions including: (j) “public body” means (i) a Government department or a board, commission, foundation, agency, tribunal, association or other body of persons, whether incorporated or unincorporated, all the members of which or all the members of the board of management or board of directors of which (A) are appointed by order of the Governor in Council, or (B) if not so appointed, in the discharge of their duties are public officers or servants of the Crown, but does not include the Office of the Legislative Counsel, (ii) the Public Archives of Nova Scotia, or (iii) a body designated as a public body pursuant to clause (f) of subsection (1) of Section 49; (k) “record” includes books, documents, maps, drawings, photographs, letters, vouchers, papers and any other thing on which information is recorded or stored by graphic, electronic, mechanical or other means, but does not include a computer program or any other mechanism that produces records; . . . . (m) “third party”, in relation to a request for access to a record or for correction of personal information, means any person, group of persons or organization other than (i) the person who made the request, or (ii) a public body; [16] Section 4(1) provides for the application of the Act as follows: Application of Act (4) (1) This Act applies to all records in the custody or under the control of a public body, including court administration records. [17] The Audit Report is a record as defined by the Act and was in the custody and control of the Department of Justice, a public body, as defined by the Act. None of the exceptions in s. 4(2) of the Act apply. The Audit Report is therefore subject to the provisions of the FOIPOP Act. [18] Is disclosure of the Audit Report exempted by virtue of s. 12(1)(a)(iii) of the Act? [19] As previously stated, a record is to be disclosed subject only to “necessary exemptions that are limited and specific”. Exemption is claimed pursuant to s. 12(1)(a)(iii) of the Act which provides: Intergovernmental affairs 12 (1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (a) harm the conduct by the Government of Nova Scotia of relations between the Government and any of the following or their agencies: . . . . (iii) an aboriginal government, [20] The question is whether the disclosure of the Audit Report “could reasonably be expected to harm” the conduct by the Government of Nova Scotia of relations between the Government and an Aboriginal Government or its agencies. [21] In dealing with the interpretation of s. 20, the Federal Access to Information Act and the interpretation of the phrase “information, the disclosure of which could reasonably be expected to interfere”, MacGuigan, J., in giving the judgment of the Federal Court of Appeal in Canada Packers Inc. v. Canada (Minister of Agriculture) et al. (1988), 87 N.R. 81, stated at p. 89: However, I believe the temptation to carry through the tort analogy should be resisted, particularly if Wagon Mound (No. 2), supra, is thought of as opening the door to liability for the mere possibility of foreseeable damage, as opposed to its probability. The words-in-total-context approach to statutory interpretation which this Court has followed in Lor-Wes Contracting Ltd. v. Minister of National Revenue, [1986] 1 F.C. 346; 60 N.R. 321, and Cashin v. Canadian Broadcasting Corporation, no. A-53-87, decided May 13, 1988, [84 N.R. 24], requires that we view the statutory language in these paragraphs in their total context, which must here mean particularly in the light of the purpose of the Act as set out in s. 2. ... Section 2(1) provides a clear statement that the Act should be interpreted in the light of the principle that government information should be available to the public and that exceptions to the public’s right of access should be “limited and specific”. With such a mandate, I believe one must interpret the exceptions to access in paragraphs (c) and (d) to require a reasonable expectation of probable harm. ... [22] The FOIPOP Act is to be broadly interpreted in favour of disclosure (McLaughlin v. Halifax-Dartmouth Bridge Commission (1993), 125 N.S.R. (2d) 288 (C.A.)). Bearing that direction in mind, I find the phrase in the Act “could reasonably be expected to harm” is to be read as “could reasonably be expected to result in probable harm”. [23] In dealing with the factors to be considered in assessing whether there is a reasonable expectation of probable harm, Rothstein, J. stated in Information Commissioner (Can.) v. Prime Minister (Can.) (1992), 57 F.T.R. 180 (T.D.) at p. 191: The Canadian jurisprudence interpreting the Access Act has established guidelines that can be useful in assessing whether or not there is a reasonable expectation of probable harm from disclosure in a given situation and the procedures to be followed. The following are not exhaustive: 1. The exceptions to access require a reasonable expectation of probable harm: Canada Packers (supra), at p. 60 F.C. 2. The considered opinion of the Information Commissioner should not be ignored: Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265; 86 N.R. 186, at p. 272 F.C.A. 3. Use of information is to be assumed in assessing whether its disclosure would give rise to a reasonable expectation of probable harm: Air Atonobee Ltd. v. Canada (Minister of Transport) (1989), 27 F.T.R. 194, at p. 216. 4. It is relevant to consider if the information sought to be kept confidential is available from sources otherwise available by the public and whether it could be obtained by observation or independent study by a member of the public acting on his or her own: Air Atonobee (supra), at p. 210. 5. Press coverage of a confidential record is relevant to the issue of expectation of probable harm from its disclosure: Canada Packers (supra), at p. 63 F.C.; Ottawa Football Club v. Canada (Minister of Fitness and Amateur Sports), [1989] 2 F.C. 480; 24 F.T.R. 62 (T.D.), at p. 488 F.C. 6. Evidence of the period of time between the date of the confidential record and its disclosure is relevant: Ottawa Football Club (supra), at p. 488. 7. Evidence that relates to consequences that could ensue from disclosure that describe the consequences in a general way falls short of meeting the burden of entitlement to an exemption from disclosure: Ottawa Football Club (supra), at p. 488; Air Atonobee (supra), at p. 216. 8. Each distinct document must be considered on its own and in the context of all the documents requested for release, as the total contents of the release are bound to have considerable bearing on the reasonable consequences of its disclosure: Canada Packers (supra), at p. 64 F.C. 9. Section 25 of the Act provides for severance of material in a record that can be disclosed from that which is protected from disclosure under an exemption provision. The severance must be reasonable. To disclose a few lines out of context would be worthless: Montana v. Canada (1988), 18 F.T.R. 15, at p. 26. 10. Exemptions from disclosure should be justified by affidavit evidence explaining clearly the rationale exempting each record: Nick Ternette v. The Solicitor General of Canada, (T-522-84) November 22, 1991, at p. 31 (T.D.) [see 49 F.T.R. 161], and Merck Frosst Canada Inc. v. The Minister, Department of Health and Welfare (T-1442-87) June 21, 1988, at p. 3 (T.D.). [24] Daniel Christmas filed an affidavit supporting non-disclosure of the Audit Report. Mr. Christmas is an elected councilor of the Membertou Indian Band and Chair of the Assembly of the Nova Scotia Chiefs Technical Committee, and at the time the Audit Report was prepared an elected councilor of the Membertou Band and Executive Chair of the Union of Nova Scotia Indians. Mr. Christmas was one of the negotiators for the Unama’ki Communities of the tripartite Agreement. [25] He attended a meeting on September 7, 2001 with Raymond Cusson, representing the Province of Nova Scotia, Bernd Christmas and Rob Gow, representative of Canada. Both Messrs. Bernd Christmas and Daniel Christmas told Mr. Cusson they would not agree to the release of the Audit Report. Mr. Daniel Christmas explained at that time the four Bands participating in the Unama’ki Tribal Police Service were in the midst of discussing and negotiating the possible provision of policing services by the Royal Canadian Mounted Police in their communities. [26] Mr. Daniel Christmas stated it was the belief of the four Bands that the release of the Audit Report would bring media attention upon the Unama’ki Tribal Police Service which would be detrimental to the negotiations which were on-going as of the date of his affidavit. Mr. Christmas stated that, in addition to the harm to negotiations with the R.C.M.P., the release at any time of the Audit Report by the Province of Nova Scotia over the objections of the participating Bands will cause a serious strain in the relationship between the Membertou Band and the other Mik’maq Governments in Nova Scotia, and the Province of Nova Scotia. He stated the Mik’maq regard their dealings with Non-aboriginal Governments as private and confidential between them and the Non-aboriginal Governments, and regard the release of information about them, such as the Audit Report, by Non-aboriginal Governments without Mik’maq consent as a breach of diplomatic protocol between them. [27] He goes on to state that he has had direct experience for more than twenty years and the conduct of relations between Mik’maq Governments and the Province of Nova Scotia and the relationship may be characterized, on the Mik’maq side at least, as very delicate and sensitive, with a great deal of suspicion and distrust on the part of the Mik’maq towards the Province, provincial ministers, departments and officials. The release by the Province of information obtained by it from the Mik’maq, without Mik’maq consent, would undermine and seriously harm the Province’s already fragile relationship with Mik’maq Governments. [28] Terrance J. Paul also filed an affidavit in support of non-disclosure of the Audit Report. Mr. Paul is Chief of the Membertou Indian Band and at the time of the Audit, which resulted in the Audit Report, both the Chief of Membertou and Chair of the Unama’ki Board of Police Commissioners. Chief Paul states it is his understanding and belief the Audit, which resulted in the Audit Report, was conducted in confidence; that the information gathered during the Audit of the Unama’ki Tribal Police Service was private and confidential to the parties to the Agreement, being Canada, Nova Scotia and the four Mik’maq Bands; that the report was prepared with a view to ensuring compliance with the Agreement and identifying shortcomings and possible improvements in the operation of the police service. [29] Each page of the report is marked “confidential”. He stated Mik’maq Aboriginal Governments, including the Membertou, Eskasoni, Chapel Island and Whycocomagh Bands, the Union of Nova Scotia Indians and Confederacy of Mainland Mik’maq Tribal Councils, regularly communicate, conduct negotiations and discussions, exchange correspondence and hold meetings with Non-aboriginal Governments, including the Government of Nova Scotia and its various departments and officials. The Mik’maq regard their dealings with Non-aboriginal Governments as private and confidential between them; and regard the release of information about them, such as the Audit Report, by Non-aboriginal Governments without Aboriginal consent, a breach of diplomatic protocol between them. The release by a Non-aboriginal Government of such information would be harmful to the Non-aboriginal Government’s relationship with the Mik’maq Aboriginal Government in question. In particular, the release to third parties and the media of information provided to a non-aboriginal - even if not explicitly said to be confidential, without explicit Mik’maq consent - would severely undermine the candour and frankness required for harmonious and productive relationships, and would make the Mik’maq unduly cautious and suspicious of Non-aboriginal Governments and unduly circumspect in their dealings with Non-aboriginal Governments. [30] Raymond Cusson, one of the authors of the Audit Report, filed an affidavit in support of the non-disclosure of the Audit Report. He stated he attended a meeting on September 7, 2001 with members of the Membertou Band Council, including Bernd Christmas and Daniel Christmas, who advised neither they nor Chief Terry Paul would agree to disclosure of the Audit Report, and stated such release or disclosure would cause serious strain between the Membertou Band and the Federal and Provincial Governments. [31] Does the evidence establish a reasonable expectation of probable harm to the conduct by the Government of Nova Scotia of relations between the Government and an Aboriginal Government or its agency if the Audit Report is disclosed? [32] The parties were aware any information collected by Canada or Nova Scotia pursuant to the Agreement is subject to the relevant freedom of information and protection of privacy legislation. Clause 15(9) of the Agreement provides: Any information collected by Canada or Nova Scotia pursuant to this Agreement is subject to the rights and safeguards provided for in the relevant federal and provincial legislation relating to the freedom of information and protection of privacy. [33] The affidavits of Mr. Christmas and Chief Paul contain general assertions that the Mik’maq have a history of suspicion and distrust toward the Provincial Government; regard their dealings with Non-aboriginal Governments as private and confidential; and the release by the Province of information obtained from the Mik’maq without Mik’maq consent would undermine and seriously harm the Province’s already fragile relationship with the Mik’maq Governments. [34] Such assertions do not meet the test of a reasonable expectation of probable harm. The Bands, which are parties to the Agreement, knew the Agreement was subject to the FOIPOP Act. The Province has an obligation pursuant to the Agreement to conduct assessments of the police services. Clause 5.4 of the Agreement provides: Level of Policing Pursuant to Nova Scotia’s duty under subsection 3A(2) of the Police Act to ensure that an adequate and effective level of policing is maintained throughout the province, Nova Scotia shall: a) provide standard operating procedures for use by the Unama’ki Tribal Police; which standard operating procedures shall be adopted by the Board save and except in those cases where, in the opinion of the Board, an operating procedure would impair the ability of the Unama’ki Tribal Police to provide culturally sensitive policing, in which case there shall be consultation between Nova Scotia and the Board to develop a mutually acceptable operating procedure; b) provide to the Board and the Chief of Police information and advice respecting the management and operation of the Unama’ki Tribal Police, techniques in handling special problems and other information considered to be of assistance; c) determine, through a system of assessments, evaluations and inspections, the adequacy, efficiency, effectiveness and cultural sensitivity of the police services provided on the Reserve lands; and d) take measures to ensure that the Reserve lands are adequately and effectively policed, which measures shall include the revocation of the exemption made under section 3A(5)(a) of the Police Act and the making of arrangements for policing of the Reserve lands by other police forces in the province, if, in the opinion of Nova Scotia, following consultation with the Board, the Unama’ki Tribal Police fails to provide adequate and effective policing services on the Reserve lands. [35] It is obvious the Province would be conducting assessments which could be subject to disclosure pursuant to the FOIPOP Act. In the face of the express terms of the Agreement, solely the statement that disclosure of the Audit Report would seriously harm the conduct of relations between the Government of Nova Scotia and Aboriginal Government does not satisfy the test of a reasonable expectation of probable harm to the relations. [36] In Do-Ky et al. v. Canada (Ministers of Foreign Affairs and International Trade) (1999), 173 D.L.R. (4th) 515, the Federal Court of Appeal upheld the trial judge’s decision to refuse disclosure of diplomatic notes where the foreign country objected to the disclosure. In giving the Court’s judgment, Sexton, J.A. stated at p. 519: We have also examined the notes and the confidential record and are satisfied that there was sufficient evidence upon which the motions judge could reasonably conclude that the diplomatic notes contain specific information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs. It is therefore unnecessary for us to consider the other more general issues addressed by the motions judge relating to whether diplomatic notes must be disclosed. We should stress however that there is no “class exemption” for diplomatic notes. Under section 15(1) there is no presumption that such notes contain information the disclosure of which could reasonably be expected to be injurious to the conduct of international relations. There must be evidence of this. Certainly where the documents contain information which, for example, must cast doubt on the commitment of another country to honour its international obligations and that other country objects to the disclosure, the case for exemption will have been made out. [37] In that case, the Court was satisfied the diplomatic notes contained specific information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs. Such is not the case here. The parties knew the Agreement was subject to the FOIPOP Act. If the statement by an Aboriginal Government that the disclosure would be harmful is sufficient then nothing which transpires between the Government of Nova Scotia and an Aboriginal Government could be disclosed pursuant to the FOIPOP Act unless the Aboriginal Government agreed. Such an interpretation cannot stand when considering the purpose of the legislation and how it is to be interpreted. [38] In addition to the general assertions of harm to the relationship, Mr. Christmas states at the time of the Audit the Bands were negotiating for the provision of police services to their communities with the R.C.M.P. and release of the Audit Report would place media attention on the police services and would be detrimental to the negotiations. This falls short of meeting the burden required to refuse disclosure of the Audit Report. [39] Considering the evidence as a whole, there is not the evidence to establish the disclosure of the Audit Report gives rise to a reasonable expectation of probable harm to relations between the Government of Nova Scotia and an Aboriginal Government or its agency. [40] Section 12(b) of the FOIPOP Act provides: Intergovernmental affairs 12 (1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to . . . . (b) reveal information received in confidence from a government, body or organization listed in clause (a) or their agencies unless the government, body, organization or its agency consents to the disclosure or makes the information public. [41] The issue for the Court is whether the Audit Report was received in confidence from an Aboriginal Government or its agency. Chief Terrance Paul, in his affidavit, stated: 4. It is my understanding and belief that 1999 audit being sought by the Appellant was conducted in confidence. It is my understanding and belief that he information gathered during the 1999 audit of the Unama’ki Tribal Police Service was private and confidential to the parties to the Tripartite Agreement, that is, to Canada, Nova Scotia and four (4) Mi’kmaq Bands. It was may (sic) understanding and belief that the information provided during the audit was provided in confidence and was solely for the purpose of providing the parties to the Tripartite Agreement with an assessment and evaluation of the policing services provided, with a view to ensuring compliance with the Tripartite Agreement and identifying shortcomings and possible improvements in the operation of the Unama’ki Tribal Police Service. The Report produced as a result of the audit, titled “Unama’ki Tribal Police Focussed Audit 1999", and every page of the Report, is marked “Confidential”, and it is my belief and understanding that the Report is confidential to the parties to the Tripartite Agreement. 5. One of the persons who conducted and was responsible for the audit, and who signed the Unama’ki Tribal Police Focussed Audit 1999 Report, is Dennis P. Kelly, then Director, Operations, Police and Public Safety Services Division, Department of Justice. He has informed me and I do verily believe that it was his understanding and belief that the audit was, and the Unama’ki Tribal Police Focussed Audit 1999 Report, is confidential. [42] Chief Paul goes on to state the Mi’kmaq regard their dealings with Non-aboriginal Governments as private and confidential between them and the Non-aboriginal Governments. Each page of the Audit Report is marked “confidential”. In dealing with the issue whether the information was “received in confidence”, Gruchy, J. stated in Keating v. Nova Scotia (Attorney General) (2001), 194 N.S.R. (2d) 290 at p. 316: The matter of a determination of whether information was “received in confidence” was examined closely in Order No. 331-1999; Vancouver Police Board, Re, [1999] B.C.I.P.C.D. No. 44 (Comm.). In that case the Commissioner posed the question to be addressed as follows: “37 What are the indicators of confidentiality in such cases? In general, it must be possible to conclude that the information has been received in confidence based on its content, the purpose of its supply and receipt, and the circumstances in which it was prepared and communicated. The evidence of each case will govern, but one or more of the following factors - which are not necessarily exhaustive - will be relevant in s. 161(b) cases: l. What is the nature of the information? Would a reasonable person regard it as confidential? Would it ordinarily be kept confidential by the supplier or recipient? 2. Was the record prepared for a purpose that would not be expected to require or lead to disclosure in the ordinary course? 3. Was the record in question explicitly stated to be provided in confidence? (This may not be enough in some cases, since other evidence may show that the recipient in fact did not agree to receive the record in confidence or may not actually have understood there was a true expectation of confidentiality.) 4. Was the record supplied voluntarily or was the supply compulsory? Compulsory supply will not ordinarily be confidential, but in some cases there may be indications in legislation relevant to the compulsory supply that establish confidentiality. (The relevant legislation may even expressly state that such information is deemed to have been supplied in confidence.) 5. Was there an agreement or understanding between the parties that the information would be treated as confidential by its recipient? 6. Do the actions of the public body and the supplier of the record - including after the supply - provide objective evidence of an expectation of or concern for confidentiality? 7. What is the past practice of the recipient public body respecting the confidentiality of similar types of information when received from the supplier or other similar suppliers? [43] In determining whether particular information is received in confidence, the Court must consider the circumstances as a whole including the content of the information, its purposes and the purposes and conditions under which it was prepared and communicated. It is not enough that the supplier of the information states, without further evidence, that it is confidential; otherwise, a party supplying the information could ensure the information was not released. Likewise, the fact information is marked confidential is not conclusive that the information was supplied in confidence. If such was the case, the mere marking of information as “confidential” would prevent its release. [44] In this case, the Agreement provides Nova Scotia has the right to ensure an adequate level of policing is maintained, including the ability to conduct assessments, evaluations and inspections. The Audit Report was provided as part of the Province carrying out its obligations under the Agreement and Police Act. The Report is not something “received in confidence” from an Aboriginal Government or its agency, but rather the product of the Province’s duty to ensure an adequate and effective level of policing. [45] The Audit Report was not “received” from an Aboriginal Government or its agency. The Shorter Oxford English Dictionary (third edition) defines “receive” as follows: To take in one’s hand, or into one’s possession (something held out or offered by another); to take delivery of (a thing) from another, either for oneself or for a third party. [46] Neither the Audit Report nor the data obtained from the Tribal Police or persons giving information which was used in preparation of the Audit Report was “received in confidence”, but rather obtained through the exercise of the Province’s duty to ensure to adequate policing as contemplated by clause 5.4 of the Agreement. [47] Clause 4.2 of the Agreement provides for an evaluation of the Aboriginal component of the police services provided by the Agreement, to be completed no later than March 31, 1999, the terms of reference of which is to be provided by the Board. The Agreement goes on to provide the evaluation report may be released to the public, interested persons, organizations and other groups or individuals upon the approval of all the parties. The Audit Report is not the evaluation envisaged by clause 4.2, but rather an assessment or evaluation pursuant to clause 5.4 of the Agreement. [48] It was argued even if I found disclosure of the Audit Report should be ordered, it should not be disclosed without the consent of the Governor in Council pursuant to s. 12(2) of the FOIPOP Act, which provides: Consent of Governor in Council to disclose (2) The head of a public body shall not disclose information referred to in subsection (1) without the consent of the Governor in Council. [49] I reject that proposition as s. 12(2) only applies where the material requested to be disclosed is material which meets the exemptions set out in s. 12(1), which is not the case here. [50] The respondent and third parties also contend portions of the Audit Report should be exempted from disclosure as an unreasonable invasion of a third party’s personal privacy. In dealing with what is “personal information”, Cromwell, J.A. stated in Dickie v. Nova Scotia (Minister of Health) (1999), 176 N.S.R. (2d) 333 at p. 343: With respect, I am of the view that aspects of this reasoning require clarification. As noted above, personal information for the purposes of the Act means “recorded information about an identifiable individual”. These words are broad, clear and simple. The Statute then provides a list of types of information that are included in the definition. In my opinion, the examples (set out in (i) through (ix) of the definition) illustrate, but do not limit the breadth of the definition set out in the opening words. The definition of “personal information” is, to use the words of La Forest, J., in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; 213 N.R. 161, at para. 68, “undeniably expansive”. While he was there referring to different legislation, it is very similar in this respect to the Nova Scotia Statute; moreover, while La Forest, J., was in dissent, Cory, J., for the majority, specifically approved his approach to the interpretation of the legislation: at para. 1. While the Nova Scotia Statute does not, as the judge observed, use the words “without limiting the generality of the foregoing ...” in addition to the words “includes”, the word “includes”, on its own, is a word of “extension, designed to enlarge the meaning of the preceding words, and not to limit them”: see National Bank of Greece (Canada) et autres v. Simcoe & Erie General Assurance Co. et autres, [1990] 2 S.C.R. 1029; 115 N.R. 42; 32 Q.A.C. 250, per La Forest, J., at p. 1041; see also Aquasource Ltd. v. Freedom of Information and Protection of Privacy Commissioner (B.C.) et al., [1998] B.C.J. No. 1927; 111 B.C.A.C. 95; 181 W.A.C. 95 (C.A.), at para. 41ff. I conclude that the specific examples should not be used to limit the definition of personal information in the statute. [51] After reviewing the Audit Report, I find it does contain personal information about an identifiable individual as defined by the FOIPOP Act. I also find the personal information concerns a “third party” as defined by the Act. [52] The personal information is not to be released if it would be an unreasonable invasion of a third party’s personal privacy. Section 20(4) of the Act sets out circumstances under which a disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy, including s. 20(4)(e) which provides: Presumed not unreasonable invasion of privacy (4) A disclosure of personal information is not an unreasonable invasion of third party’s personal privacy if . . . . (e) the information is about the third party’s position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister’s staff; [53] Is the Unama’ki Tribal Police a public body within the meaning of the FOIPOP Act? Section 3(j)(i)(A) does not apply to this matter. The question remains whether the Tribal Police come within the definition of a public body as defined in s. 3(j)(i)(B). [54] I must first consider what constitutes a “public officer”. With respect to that issue, Roscoe, J.A., in giving the judgment of the Court of Appeal in McLaughlin v. Halifax-Dartmouth Bridge Commission, supra, stated at p. 294: While other statutes may not be helpful in determining the meaning of words in a statute, judicial decisions on the meaning of words can be useful (see Driedger p. 158). This was done in R. v. Jollimore (1950), 12 C.R. 204 (N.S.), a case dealing with whether or not a member of the R.C.M.P. was a public officer as defined in the Criminal Code. In that case Doull, J., speaking for the Supreme court in banco, said: Apart from statute the term “Public Officer” is a wide term. The definition given in Henley v. The Major of Lyme, 5 Bing. 92, is still quoted in Halsbury’s as authoritative: Every one who is appointed to discharge a public duty and receives a compensation in whatever shape, whether from the Crown or otherwise. [55] And at pp. 295 and 296: Since the words “public officers” in s. 3(b)(ii) of the Freedom of Information Act are preceded by the words “in the discharge of their duties are”, the duties of the Bridge Commissioners should be examined to determine whether or not the Commissioners are performing public duties. The Halifax-Dartmouth Bridge Commission Act enumerates several powers of the Commissioners which include the power to construct and maintain bridges, to charge and collect rates and tolls, to sell property, to expropriate property, to make bylaws, rules and regulations the breach of which can be prosecuted under the Summary Proceedings Act, and a variety of other powers, some of which are subject to the approval of the Governor-in-Council. In addition, the Commission is deemed to be a public utility within the meaning of the Public Utilities Act and can be appointed a traffic authority pursuant to the Motor Vehicle Act. The Commission is required to make an annual report to the Province, the City of Halifax, the City of Dartmouth and the County of Halifax, which report must include an audited statement. The Commissioner’s remuneration is determined by the Governor-in-Council. In my view, it is clear that the Commissioners are acting on behalf of the public in the discharge of their duties and powers. The Bridge Commission is not a private corporation. It is similar to the university board in the Hill case, in that although members are appointed from various sectors, it is a statutory body created by statute and given the power to act by statute. The Commissioners’ positions are created and defined by the statute. In my opinion they are public officers. . . . . This opinion apparently coincides with that of Ian MacF. Rogers, Q.C., the author of The Law of Canadian Municipal Corporations (2nd Ed. 1971) (looseleaf service 1993), Carswells, as is evident from the following passage at p. 284: Municipal officers and other officials may also be public or statutory officers in that, in addition to the duties prescribed by the statute requiring their appointment, they are obliged to perform duties by virtue of other statutes which are of a governmental and not of a municipal nature. They are appointed in this respect for the carrying on of the good government of the province, performing public services for the benefit not of the municipality in its corporate capacity but of the inhabitants and those of the province generally. Such officers are personae designatae in discharging their statutory duties and do not act as agents of the corporation. So when the municipal treasurer and the municipal clerk are acting in obedience to a statute imposing duties of a public character on them, the principle of respondeat superior does not apply to make the corporation responsible for their actions. Law enforcement officers appointed by the municipality fall into the same class. [56] In this case, the Tribal Police was established to carry out policing services for the Unama’ki Communities. The members of the Tribal Police are appointed by the Minister of Justice as Aboriginal police officers pursuant to the Police Act, supra. The Agreement sets out the duties of the Tribal Police in clause 6.2.3. as follows: Duties of the Unama’ki Tribal Police The Unama’ki Tribal Police shall be, and is charged with the enforcement of the applicable laws of the province, the applicable laws of Canada and the by-laws of the Unama’ki Communities in force within the Reserve lands. [57] I find the Tribal Police is a body of persons, all the members of which in the discharge of their duties are public officers and, therefore, the Tribal Police is a public body as defined by the FOIPOP Act. [58] Having read the Audit Report, I find the personal information contained therein is information about the third party’s position, functions or remuneration as an officer, employee or member of a public body - the Tribal Police - and is, therefore, pursuant to s. 20(4)(e) not an unreasonable invasion of a third party’s personal privacy. [59] I allow the appeal and order the release of the Audit Report. [60] The respondent and third parties have a right to appeal this decision. Pursuant to s. 42(5)(b) of the FOIPOP Act, I direct that the Audit Report remain sealed for a period of thirty days after my order is issued; pending further order of this Court or the Court of Appeal. [61] If the parties are unable to agree on costs, counsel may submit written briefs on the issue. ___________________________________ C. Richard Coughlan, J.