Keough v. Newfoundland and Labrador (Minister of Government Services)

Date: 20091112 Citation: 2009 NLCA 62 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Docket: 09/16 BETWEEN: JOSEPH WAYNE KEOUGH APPELLANT AND: HER MAJESTY IN RIGHT OF NEWFOUNDLAND AND LABRADOR AS REPRESENTED BY THE MINISTER OF GOVERNMENT SERVICES RESPONDENT AND Docket: 09/26 BETWEEN: JOSEPH WAYNE KEOUGH APPELLANT AND: HER MAJESTY IN RIGHT OF NEWFOUNDLAND AS REPRESENTED BY THE MINISTER OF ENVIRONMENT AND CONSERVATION RESPONDENT Coram: Cameron, Barry and Harrington, JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division Page: 2 Appeal Heard: October 22, 2009 Judgment Rendered: November 12, 2009 Reasons for Judgment by Barry, J.A. Concurred in by Cameron and Harrington, JJ.A. Counsel for the Appellant: Self-represented Counsel for the Respondents: Philip Osborne Barry, J.A.: [1] These two appeals arise out of three applications to the Trial Division under s. 60 of the Access to Information and Protection of Privacy Act, S.N.L 2002, c.A-1.1.1 The matters are interrelated in that they arise from differences between Mr. Keough and Frederick Batten relating to land at Brigus Junction, which Mr. Batten says he purchased from Mr. Keough’s father. Background Facts - 200801T4338 [2] On December 20, 2005, Mr. Keough requested a copy of a letter he claimed had been written by Mr. Batten on September 24, 2002, to Mr. Terry Battcock, an Environmental Protection Officer employed by the respondent. The respondent provided an edited or redacted version of the letter, which was actually dated August 19, 2002 (“the Batten/Battcock letter”.) The respondent blacked out some of the information contained in the letter on the basis that it constituted personal information which could not be released under the Act. Mr. Keough filed a Request for Review with the Office of the Information and Privacy Commissioner, in which he requested a full copy of the letter. [3] On May 18, 2006, the Privacy Commissioner upheld the decision to sever portions of the letter, which the Commissioner found to fall within the definition of personal information set out in the Act. The Commissioner concluded none of the conditions provided in the Act for the release of personal information applied to the severed portions of the letter. Mr. Keough did not appeal that decision. 1 Appeal 200901H0016 is from proceedings numbered 200801T4338 and 200801T4425, which were heard on January 14, 2009. Appeal 200901H0026 is from proceeding 200901T0001, which was heard on February 19, 2009. Page: 3 [4] On September 8, 2008, Mr. Keough filed with the respondent another application for access to information. In that application, he again sought access to the Batten/Battcock letter. On that occasion the Access and Privacy Co-ordinator of the respondent, as a courtesy, sent Mr. Keough a second copy of the edited version of the letter. This time Mr. Keough filed a notice of appeal in the Trial Division. The appeal was denied. The Trial Division judge found that the application of September, 2008 was the same as the one made in 2005. Since Mr. Keough had not appealed from the 2006 decision of the Privacy Commissioner on the earlier request, the Trial Division judge viewed the application then before him as an attempt to appeal the 2006 decision outside of the time set for appeal. He concluded a person cannot simply revive a request by making the same request again and to do so became “close to an abuse of process”. He further decided that to permit the appeal would be to sanction repetitive requests, which s. 13 of the Act authorizes a public body to reject. - 200801T4425 [5] On September 12, 2008, Mr. Keough filed with the Department of Government Services an application requesting copies of letters, which Mr. Keough says were sent to Mr. Batten ordering him to remove his septic system and remove car wrecks buried on the Batten property. On October 9, 2008, Mr. Keough was advised there were no records responsive to his request. Mr. Keough appealed this to the Trial Division. The Trial Division judge ruled that Mr. Keough had received a complete answer to his request and consequently there was no relief available in that there was not a refusal to provide a record but a denial that any record existed. The Trial Division judge found that there was no reason to believe the response was in error. He was not persuaded by Mr. Keough’s submission that there had to have been letters to Mr. Batten because Mr. Keough’s parent had received removal letters in June, 1985 and September, 1988. - 200901T0001 [6] On November 10, 2008, Mr. Keough filed with the Department of Environment and Conservation a request for access to information regarding why a certain employee of the Department had left his position. More particularly, Mr. Keough inquired whether the employee was “let go, or just left, or resigned, [been] fired or replaced” and if so was it because the employee had released a letter or letters concerning Mr. Batten. Mr. Keough also sought information regarding when the Crown Lands office became aware of a Bill of Sale between Mr. Batten and Mr. Keough’s father. Page: 4 [7] Mr. Keough was provided with the information regarding the Bill of Sale but the Department refused information regarding the employee on the basis that it was personal information under the Act. Mr. Keough’s appeal from that decision was rejected by a Trial Division judge, who ruled that the information being sought fell within the class of personal information which could not be released under the legislation. The Relevant Legislation and Regulations [8] The Access to Information and Protection of Privacy Act provides: 2.(o) “personal information” means recorded information about an identifiable individual, including (i) the individual’s name, address or telephone number, (ii) the individual’s race, national or ethnic origin, colour, or religious or political beliefs or associations, (iii) the individual’s age, sex, sexual orientation, marital status or family status, (iv) an identifying number, symbol or other particular assigned to the individual, (v) the individual’s fingerprints, blood type or inheritable characteristics, (vi) information about the individual’s health care status or history, including a physical or mental disability, (vii) information about the individual’s educational, financial, criminal or employment status or history, (viii) the opinions of a person about the individual, and (ix) the individual’s personal views or opinions. ..... 13. The head of a public body may refuse to disclose a record or part of a record where the request is repetitive or incomprehensible or is information already provided to the applicant. ….. 30.(1) The head of a public body shall refuse to disclose personal information to an applicant. Page: 5 ….. 39.(1) A public body may disclose personal information only (a) in accordance with Parts II and III; ….. (e) for the purpose of complying with a subpoena, warrant or order issued or made by a court, person or body with jurisdiction to compel the production of information; ….. (g) to the Attorney General for use in civil proceedings involving the government; (h) for the purpose of enforcing a legal right the government of the province or a public body has against a person; ….. 43.(1) A person who makes a request under this Act for access to a record or for correction of personal information may ask the commissioner to review a decision, act or failure to act of the head of the public body that relates to the request. ….. (3) Notwithstanding subsection (1), a person who makes a request under this Act for access to a record or for correction of personal information may, within 30 days after the person is notified of the decision, or the date of the act or failure to act, appeal directly to the Trial Division under section 60. …. 60.(1) Within 30 days after receiving a decision of the head of a public body under section 50, an applicant or a third party may appeal that decision to the Trial Division. (2) An appeal may also be commenced by an applicant under this section in accordance with subsection 43(3). [Emphasis added.] Page: 6 The Standard of Review [9] The parties do not dispute the standard of review. For questions of law it is correctness. For questions of mixed fact and law it is “palpable and overriding error unless it is clear that the [Trial Division] judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law”. See Housen v. Nikolaisen, [2002] 2 S.C.R. 235 (S.C.C.). The Issues [10] Four issues arise: (i) Did the Trial Division judge err in 200801T4338 by concluding that, not having appealed the decision of the Privacy Commissioner on his earlier request, Mr. Keough was out of time and not entitled to revive the matter simply by making an identical request? (ii) Did the Trial Division judge err in 200801T4425 by concluding that Mr. Keough had received a complete answer to his request for copies of letters sent to Mr. Batten regarding removal of a septic tank and car wrecks, when the respondent responded it had no record of any such letters? (iii) Did the Trial Division judge err in 200901T0001 by concluding that the respondent did not have to provide Mr. Keough with information regarding the employment status or history of a departmental employee? (iv) Did the Trial Division judges err in awarding costs against Mr. Keough? The Parties’ Submissions and Analysis - 200801T4338 [11] Mr. Keough acknowledges he did not appeal the 2006 decision of the Privacy Commissioner, which upheld the respondent’s severing of certain information from the Batten/Battcock letter. Mr. Keough submits, however, that, because in the meantime a departmental employee had placed in a public file a letter containing personal information regarding Mr. Keough, specifically his address, therefore, he subsequently obtained the right to demand that the respondent treat Mr. Batten’s personal information the same way and make it available to Mr. Keough. That submission lacks support in either logic or law. If the respondent made an error in its treatment of personal information relating to Mr. Keough, he could have requested this be Page: 7 corrected. But the protection of Mr. Batten’s privacy and the respondent’s right to deny access to Mr. Batten’s personal information is not dependent upon the respondent’s treatment of Mr. Keough’s information. Mr. Keough’s approach of “what is sauce for the goose is sauce for the gander” is trumped by the principle that “two wrongs do not make a right”. [12] Mr. Keough has provided no reason for this Court to conclude that the Trial Division erred in refusing to allow Mr. Keough to revive the matter decided by the Privacy Commission in 2006, which Mr. Keough did not appeal. Mr. Keough is now out of time to appeal and Mr. Keough could not revive the matter by making an identical, repetitive request two years later. [13] Mr. Keough has submitted that he should not incur costs in the 4338 matter, because the Trial Division judge referred at the beginning of his decision to “Freedom of Information Legislation”. Mr. Keough notes that the Freedom of Information Act, R.S.N.L. 1990, c.F-25, by then had been repealed by the Access to Information and Protection of Privacy Act. The Trial Division judge in fact subsequently referred in his decision to the Access to Information Act [transcript, p. 22]. It is clear also from his specific references to sections of the Access to Information Act that his earlier reference was a generic description of the legislation, not an invoking of the repealed Act. In any event, the Trial Division judge’s authority to award costs arises from the Judicature Act, RSNL 1990, c. J-4, and the Rules of the Supreme Court, 1986 which generally entitle the successful party to costs, rather than from either of the two Acts. - 200801T4425 [14] Mr. Keough’s basis for challenging the response that the respondent had no record of any letter to Mr. Batten requiring removal of a septic system or car wrecks remains simply that, because the Keoughs got letters to this effect, therefore, Mr. Batten must have gotten similar letters. Again, that does not logically follow. There is no evidence the respondent had a record of such letters to Mr. Batten. Mr. Keough has shown no reason why the Trial Division judge erred in concluding that the respondent fully answered Mr. Keough’s request and that no relief is available under the Act. - 200901T0001 [15] Mr. Keough’s main reason for challenging the Department’s refusal to provide personal information regarding the employment status of a departmental employee was that he believed some sort of a conspiracy had existed to conceal the bill of sale from Mr. Keough’s parent to Mr. Batten by Page: 8 having it in Mr. Batten’s personal file within the Department, rather than having it registered at the Registry of Deeds. [16] Mr. Keough supplied absolutely no information or evidence to support his conspiracy theory. He is mistaken in law in believing that either Mr. Batten or the Department had any obligation to register the bill of sale at the Registry of Deeds. Mr. Keough has provided no reason to show that the Trial Division judge erred in concluding he was not entitled to the personal information requested. He pointed to the exceptions to nondisclosure of personal information in s. 39(1)(e), (h) and (g) but did not show how these apply to Mr. Batten’s information. [17] Mr. Keough also argued that an error by the Trial Division judge in stating that the bill of sale was a public document because it had been registered, when in fact it had not, provided support for his appeal with respect to costs. [18] Mr. Keough had already received a copy of the bill of sale in an earlier court proceeding. Any error regarding accessibility of the bill of sale to the public had no bearing on the decision of the Trial Division judge that he had received all the information to which he was entitled. Mr. Keough has provided no reason why the Department as the successful party should not have been awarded its costs. Summary and Disposition [19] In summary: (i) The Trial Division judge did not err in deciding in 200801T4338, that the identical matter had been previously been dealt with by the Privacy Commissioner two years previously, that the time for appeal had passed, and that the matter could not be revived by Mr. Keough repeating an identical request. (ii) The applications judge did not err in determining that Mr. Keough had received a complete answer to his request for copies of letters sent to Mr. Batten regarding removal of a septic system and car wrecks when the Department responded that it had no records relating to these matters. (iii) The Trial Division judge did not err in 200901T0001, in concluding that Mr. Keough was not entitled to the personal information regarding a departmental employee. Page: 9 (iv) The Trial Division judges did not err in awarding the respondent, as the successful party, costs against Mr. Keough. [20] The two appeals arising out of the three applications to the Trial Division are dismissed with costs to the respondent, should it wish to pursue these. _______________________ L.D. Barry, J.A. I concur: _____________________ M.A. Cameron, J.A. I concur: _____________________ M.F. Harrington, J.A.