The limits of open justice

The limits of open justice
On the face of it, the Romanian-operated web site looks innocuous. But at a recent gathering of administrative lawyers at the Ontario Bar Association, the general counsel for Canada’s privacy commissioner devoted time to talk about her office’s concerns with the site.

Globe24h positions itself as a law library, and contains in its database decisions from Canadian courts and tribunals as well as case law from other countries. It collects the cases from court and tribunal web sites or repositories like the Canadian Legal Information Institute, but unlike web sites like CanLII, Globe24h allows these rulings to be indexed by search engines like Google, which means searches for name would turn up decisions in which that person is mentioned.

Patricia Kosseim, senior general counsel at the Office of the Privacy Commissioner of Canada, said her office found out individuals who wanted their information taken down from Globe24h had to pay a fee.
One of the complainants to the Office of the Privacy Commissioner was a parent of a woman described as a sex worker in a case. The woman was a witness, not a party, said Kosseim, who spoke at an OBA Institute administrative law session in February.

“While making court decisions widely available online in the spirit of open courts is certainly a laudable objective, this investigation into Globe24h uncovered new privacy risks that were not even imaginable when the open courts principle [was] first formulated,” said Kosseim. She urged courts and tribunals to adopt technological safeguards to protect online decisions from potential abuse.

It’s common, of course, for administrative tribunals to publish their reasons for decision on the Internet, and Kosseim said this practice is sometimes justified as “a logical extension” of their statutory powers to control their own procedures, hold public hearings, and share decisions with parties.

While court documents could generally contain information about people’s private lives, Kosseim said “the reality is that decisions of administrative and quasi-judicial bodies often contain many sensitive details that are not as prevalent in high appellate court levels.” Tribunal rulings contain details of socio-economic difficulties, disputes with bosses, home addresses, salaries, and physical and mental-health status, she said.

But is transparency in administrative law irreconcilable with privacy in the digital age? And what’s the extent of the obligation tribunals have to protect the privacy of individuals who come to resolve disputes in a public quasi-judicial body?

Yola Grant, associate chairwoman of the Human Rights Tribunal of Ontario, said these aren’t just theoretical questions. “It’s a practical concern,” she said at the OBA panel. The tribunal must grapple with issues of stigma, emotional harm, and reputational damage, as well as economic ramifications for parties.
“If we’re not careful with our decision, we actually can have a bearing on their employability.”

How tribunals differ
One of the reasons CanLII isn’t indexed in Google searches is to make court and tribunal decisions accessible to the public while also protecting information that’s sensitive, says Paul Daly, an administrative law professor at the University of Montreal.

The open justice principle has been a cornerstone of the common law for more than a century, and administrative tribunals can take the common law and mould it to their own practice. But tribunals are “not obliged to follow the same rules as courts,” Daly tells Canadian Lawyer. “Court procedures are not the gold standard for administrative tribunals, so they can depart from them. But they can only depart from them when it’s necessary for them to achieve their statutory objective.”

Federal tribunals also carry different obligations to protect privacy, according to Kosseim. “While courts are not subject to the federal Privacy Act, federal administrative tribunals generally are. Section 8 of the act prohibits federal institutions from disclosing personal information under their control without the consent of the individual to whom it relates unless a relevant exemption applies,” she said.

Among Social Justice Tribunals Ontario, a collective of eight adjudicative tribunals in the province, the Human Rights Tribunal alone contends with case-by-case assessments of privacy issues. The Social Benefits Tribunal, for example, holds closed hearings by statute, and all parties remain anonymous in decisions published by the Landlord and Tenant Board. None of the member tribunals name children and, where necessary, family members of children.

Two years ago, the Human Rights Tribunal of Ontario came up with guidelines on matters that merit redaction of parties’ names and it is now in the process of revisiting those guidelines, according to Grant. At this point, the HRTO publishes all of its decisions on CanLII, whether they are mundane or complex in nature, and names of parties are redacted in “very few” of them. The tribunal has to decide whether a particular privacy concern merits “anonymization” using the Statutory Powers Procedure Act as reference.

In the past, the HRTO has granted anonymity to parties where the threat of, or actual, suicide was allegedly linked to the harassment complained of. It has also agreed not to reveal the transgender identity of parties because of existing stigma and concerns for personal security. But those who sought to remain anonymous to protect their reputation, or their employment prospects, have had no luck.

The tribunal still struggles with how it should treat requests to remain anonymous because of fear of negative implications for employment and academic prospects. It’s also unsure what to do when parties want their names taken out once a decision has already been published. Should it name children at the age of majority? Should it make sensitive information in exhibits available to the public if the information deals with non-parties? Those are just some of the privacy questions it will have to answer, said Grant.

Lorne Sossin, dean of Osgoode Hall Law School, isn’t concerned with the letter of the policies tribunals will eventually create around these questions. “The answer to me isn’t the policy you have,” he said. “In fact, reasonable, smart people are going to disagree about what’s appropriate for those public settings for all sorts of good reasons. The only answer that’s unacceptable is, ‘It never occurred to us; we haven’t given it any thought.’ There’s a lot of deference to organizations that wrestle with this if they actually wrestle it.”

Practical obscurity

Accessing information once required visiting musty courthouse basements, digging through boxes, attending court to watch proceedings, waiting in line, and paying for copies of court documents, making access to courts and court files practically obscure. “Until the Internet came along, the concept of practical obscurity operated in favour of privacy protection and the need-to-know principle. Generally speaking, only people with a particular interest in a matter will go through the trouble to obtain information about it,” said Kosseim. “Today, barriers to access to court and tribunals have dramatically lowered. Virtually everyone has rapid, pervasive, and persistent access to decisions literally at the tip of their fingers and from the cozy comfort of their couch — for just about any purpose, including the salacious curiosity of a neighbour, voyeurism, embarrassment of others, or even more insidious cases such as fraud, stalking, intimidation, and extortion and so forth.”

Practical obscurity died with the birth of the Internet, but in a rather interesting twist, some say the inconvenience of pre-Internet days could be the answer to the privacy quagmire courts and tribunals face today.

Roslyn Levine is the executive legal officer in the Office of the Chief Justice at the Ontario Superior Court.

She told attendees at the OBA conference they might be surprised that the Canadian Judicial Council believes the balance between these two competing interests is actually achieved through practical obscurity. A decision that poses privacy concerns wouldn’t be published, but it’s still accessible to those with enough vested interest to seek it out at the courthouse. “I think it’s just a bit odd that the old school problem of practical obscurity turns out to be the new, I guess, balance between privacy and transparency,” Levine said.

She stressed, however, that the balance between transparency and privacy in the court context is skewed in favour of openness. Sealing court orders is a “serious exception” to the open courts principle, and judges are strongly encouraged to publish their decisions, she said. “There are a number of principles that apply to judgment publication, which really are intended to support openness,” but “when a judge doesn’t publish a decision and even when there’s an order of non-publication, that doesn’t mean there isn’t access.”

To Kosseim, both courts and tribunals need to be “judicious” when selecting the level of detail that should go into decisions. Their goal, she said, should be to “satisfy the important values that underlie the open courts principle without going beyond what’s needed.”

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