In November 1995, the Vancouver Sun newspaper reported a story concerning a refugee determination hearing that took place at the Vancouver office of the Immigration Refugee Board of Canada (IRB).
The story, purportedly from an inside source at the IRB, reported that during a hearing, a female Board Member (political patronage appointee who decides refugee claims) requested a male Sikh refugee claimant disrobe in the hearing room to display the marks of torture to a Refugee Hearing Officer. The marks of torture were allegedly near the claimants genitalia. The Refugee Hearing Officer declined to comply with the Board Member's request.
When the story broke, management of the IRB, compelled by the political appointee's complaint, attempted to find the leak,. The IRB hired Vancouver lawyer, Catherine Bruce, to conduct an investigation and informed employees that the investigation was simply a "fact-finding mission" and that information provided during interviews would remain confidential.
Recognizing that the investigation was a witch hunt intended to find and discipline (fire) the alleged source, the Canada Employment Immigration Union (CEIU) provided employees with the CEIU guidelines for dealing with administrative investigations. When the report prepared by Catherine Bruce was submitted to senior management but kept secret from the employees, CEIU and two of its members submitted Access to Information Act requests for the report and Privacy Act requests for the lawyer's notes.
The IRB refused to provide either, leading to complaints to both the Office of the Information Commissioner and the Office of the Privacy Commissioner. Both ruled the IRB was required under the respective Acts to provide the information.
The IRB still refused leading to a Federal Court challenge. The Federal Court subsequently ruled that neither the management of the IRB nor the lawyer they hired had any right to make promises of confidentiality in contravention to the Acts. The Federal Court also rejected the IRB's argument that release of the report would impede future investigations.
The Privacy Commissioner launched this application with the consent of an individual seeking access to his personal information contained in interview notes. An investigator, hired by the Board to conduct an internal review of several leaks to the media, had interviewed a number of employees and promised them confidentiality.
The Board refused to provide the information to the individual, citing s. 22(1)(b) of the Privacy Act. The Board argued that providing access would impede its ability to conduct similar investigations in the future.
In his reasons for judgement released on December 24, 1997, Mr Justice Richard concluded that the Board "did not have reasonable grounds to withold disclosure of the records sought in this case". He held that the Board's claim of injury was speculative and there was "no evidence of probable harm to any investigation that has been undertaken or is about to be undertaken". He concluded that "one cannot refuse to disclose information under s. 22(1)(b) on the basis that the disclosure will have a chilling effect on possible future investigations".
He ordered the Board to give the individual the personal information at issue.
The IRB complied with the Court's ruling and provided the information to the requesters however the IRB never circulated the report or its findings to the employees at large. So the union did!
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