The number of Access to Information Act request being handled by the federal government continues to grow. So does the appetite for redactions. The Toronto Star recently reviewed 28,000 requests filed between June 2013 and July 2014, and found that only 21 per cent were returned free of redactions. With such a high rate of redaction (which means a high rate of privileged or personal information in the collected disclosure) there is a significant risk of inadvertent disclosure – remember the Canada Revenue Agency debacle last year?
If there is an inadvertent disclosure, what is the remedy? Is it possible to turn back the clock? Maybe, but once a document is made public, there is often no remedy that can undo the harm already done. What is to gain in ordering the document returned if it is in the public domain?
This situation was recently addressed by the California Court of Appeal in Newark Unified School District v. Superior Court (07/31/15, No. A142963), where the court concluded that because the District sought return of the inadvertently produced documents within hours of their release, and there was no actual proof their confidentiality had been irretrievably compromised, there was no reason to conclude that effective relief could not be granted.
This logic is just as sound in the Canadian context. You can expect a public body to face an uphill battle in clawing back documents disclosed public access legislation without proof that no harm is yet done. Once the harm is done, the result may be quite different. Being diligent may be a prerequisite to any chance of success.
Recently, the Law Times mocked Department of Justice lawyers for complaining about having to put up with old smartphones – by pointing out that they still bring wheelbarrows full of paper into courtrooms. The September edition of LawPro magazine had a nice piece on how to manage your inbox more efficiently. And it referred readers to two fine print books for more information. Contrast this to the many 2015 technology predictions which forecast the end email, new ways of communicating and collaborating, and the continuing transition to video rather than textual content in our digital lives.
Are lawyers falling behind?
It seems that way. The practice of law has been a leader in some areas of technology, but is a dinosaur in others. Lawyers have embraced electronic case and precedent databases, case management and billing tools and, of course, smartphones. Most law firms have a paper-less ambition and are moving towards a digital preference for document and records management. Lawyers research, draft and obtain instructions using electronic tools. But when lawyers need to present arguments, examine witnesses or adduce documentary evidence, most work with paper. Somewhere in the legal workflow, the technology is abandoned.
One reason for this is that the courts have failed to lay the foundation for progress. With inadequate funding and a crushing list of other priorities, electronic registries, courtrooms and proceedings have been neglected. Yes, there have been pilot projects and electronic trials, and tinkering with rules to allow for electronic filing and service. But those initiatives have been reactive and ad hoc.
It takes time and effort to move to a fully digital practice. For many lawyers there is little point in making that investment if they have to print it all for the court anyway. It is time for a more foundational and proactive change in the courts – one that makes paper the exception, not the norm.
Former Supreme Court Justice Louise Arbour is not pleased. She has just discovered that her successful public service career requires her (and her family) to be subject to surveillance and reporting for 20 years. Her right to privacy (as well as the rights of her family) has been retroactively legislated away by Bill C-31, the massive 2014 omnibus budget bill. Bill C-31 included requirements that politically exposed domestic persons – PEPs – be subject to 20 years of surveillance in their personal affairs. The PEPs include past and present Supreme Court and appellate judges, ambassadors, deputy ministers, as well as their family members.
If we are going to make sure that these PEPs don’t become corrupt or influenced against Canada, is sacrificing privacy for security a fair trade?
First, experience has shown that this type of surveillance is ineffective at catching the bad guys. Second, the premise that security must be a trade-off is questionable. Dr. Ann Cavoukian, the former Privacy Commissioner of Ontario, leads the progressive thinkers on matters of privacy. Her position is that this zero-sum equation – more security means less privacy – must be rejected. Dr. Cavoukian has made that case over and over. And she has gained international support for her cause. Privacy is too important to be so casually abandoned, and she convincingly argues that all it takes is a new approach, and a commitment to make it happen. Smart people with the right mandate can indeed do much better than C-31. What we need is a few of good civil servants (there are lots of them) to be tasked with designing a way to protect both privacy and security.