J. Date: 2001/06/13 Docket: S.H. No. 155707 [Cite as: Keating v. Nova Scotia (Attorney General), 2001 NSSC 85] Province of Nova Scotia Freedom of Information and Protection of Privacy Act Subsection 41(1) IN THE SUPREME COURT OF NOVA SCOTIA and 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 HEARD BEFORE: The Honourable Justice David W. Gruchy PLACE HEARD: Halifax, Nova Scotia DATE HEARD: January 29 30, 2001 DECISION: June 13, 2001 COUNSEL: W. Dale Dunlop and Ken Mahoney a/c for Mr. Keating Edward A. Gores for the Attorney General Anne S. Derrick, Q.C. for the third party (name not to be known) GRUCHY, J.: [1] This is an appeal by Lee Keating (Keating) pursuant to the provisions of the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c.5 (the Act). The appeal is taken from a decision of Robert Doherty, Freedom of Information and Protection of Privacy Coordinator of the Department of Justice, dated October 16, 1998, whereby the appellant was denied access to information requested. FACTUAL OVERVIEW [2] In 1994 and earlier there had been in Nova Scotia public allegations that physical, sexual, and other abuse had occurred in certain provincially operated institutions for youth correction and protection. As result of these public complaints in December, 1994, the Justice Minister of Nova Scotia, Bill Gillis, announced an investigation into these allegations. He appointed former Chief Justice of New Brunswick, the Honourable Stuart Stratton, Q.C. to investigate the matters. In June, 1995, Mr. Stratton reported that at least 89 former residents of the three institutions might have been abused. Among the institutions investigated by Mr. Stratton was the Shelburne Youth Centre (formerly the Nova Scotia School for Boys) at which Keating had been employed for many years. [3] In the conduct of the investigation, Mr. Stratton arranged to have statements taken from former residents of the institutions. He employed Facts-Probe Incorporated, operated by Harry Murphy and Mr. Murphy's son Duane, to obtain these statements. On Mr. Stratton's instructions the investigators made undertakings of confidentiality to former residents of the various institutions who gave the statements. [4] At the conclusion of Mr. Stratton's investigation he filed his final report. key recommendation of that report was that an alternative dispute resolution (ADR) process be established whereby former residents claiming to have been abused could be compensated for that abuse. [5] Mr. Harry Murphy described in paras. 5, 6, 7, and of his affidavit the assurances given to former residents as follows: 5. Throughout the Stratton Investigation, Duane and assured victims that the investigation was confidential process and that their statements would not be circulated elsewhere without their permission. Some individuals inquired as to whether they would be compelled to testify as result of giving statement to Justice Stratton. They were consistently assured that they would not. 6. Issues and assurances related to confidentiality were normally dealt with as preliminary matter prior to any interviews. No written guarantee of confidentiality was provided, nor was any written form of release used or obtained during the Stratton Investigation. 7. During the Stratton investigation, from December 1994 to June 1995, reported only to Justice Stratton. All Statements obtained from victims were provided only to Justice Stratton, although some were later provided to the Provincial Department of Justice following submission of Justice Stratton's report and after victims signed release form, sample of which is attached to my Affidavit as Exhibit "A". 8. The Stratton Report was released on June 30, 1995. copy of that Report is attached to my Affidavit as Exhibit "B". Justice Stratton explained his rationale and approach to preserving confidentiality of victims in his report. Beginning at page (iii) of the introduction he states: "The proposed investigation, in addition to being time and cost effective, was to have another significant positive feature. It would be carried out in private. Victims would not have to testify in public forum as several had already been required to do in the criminal trials of some of the perpetrators of the abuse. Rather, the victims of abuse would be able to tell their stories in private and without being made into public spectacles. The process was designed to avoid making these individuals victims all over again. The terms of reference stressed the importance of avoiding the revictimization of the victims by the process and expressly provided that the investigation was not to take place in public forum. Moreover the identities of victims were to be protected as far as possible." 9. Later in the concluding comments of his Report, at page 99, Justice Stratton states: "Many of the complainants who came forward did so only because of the assurances of confidentiality that was given to them. They told us in clear terms that they would not have spoken to us otherwise. This commitment to confidentiality must be honoured." [6] The Province of Nova Scotia accepted Mr. Stratton's recommendation and in July of 1995, the Province through the Justice Minister announced an ADR process. Although initially one lawyer was to be retained to represent all claimants, the program was amended to allow other counsel to be retained by claimants. Negotiations were conducted between the Province and various counsel and on April 20, 1996, Memorandum of Understanding (MOU) was completed, effective June 17, 1996. This MOU established guidelines and the method of "adjudicating" claims. There was no provision in the MOU whereby persons against whom allegations of abuse had been made would be afforded standing; Mr. Stratton had not addressed that subject. The MOU established guidelines for compensation and for the provision of counselling services. The Department of Justice in its submission to me described the ADR process as "... summary process driven by the applicants/complainants." [7] (The MOU and the various submissions and affidavits filed herein by or on behalf of the Province referred to the former residents of the institutions who complained of physical and/or sexual abuse as either "victims" or "Survivors". Because of the pejorative and prejudicial implications of those words will refer to them as "claimants".) [8] In the event the Province did not accept claim method of review was established. The review process did not include an opportunity for persons against whom allegations had been made to respond. [9] The Province has submitted that throughout the Stratton inquiry, the ADR process and all investigations thereafter or arising therefrom assurances of confidentiality were extended to all informants. [10] Subsequent to the release of the Stratton report in June 1995, the Department of Justice retained Facts-Probe Inc. to conduct further interviews to obtain information for employee discipline, possible criminal prosecution and ultimately to process insurance claims. In addition, in the spring of 1996, further interviews were conducted for use in the ADR process. The statements taken by Facts-Probe Inc. were made available to applicants and their counsel. Approximately seven or eight hundred persons were interviewed by Facts-Probe Inc. Releases were to be signed by all persons interviewed which releases contained consent for use of the statement for the purposes specifically set forth therein. [11] On or about December 13, 1996, Facts-Probe Inc., through Mr. Harry Murphy, withdrew its services from the Department of Justice as result of concern about possible conflict between the obligation undertaken pursuant to instructions of Mr. Stratton and those of the Department of Justice. Such conflict arose as result of the undertakings of confidentiality originally extended as compared to the amended undertakings extended by the Department of Justice. [12] In November of 1996, the ADR process was suspended. The Province apparently recognized the enormity of the task it had undertaken in this process. Amy Parker, lawyer of the Department of Justice of the Province of Nova Scotia who was assigned to the "Compensation for Institutional Abuse Program" filed an affidavit in this proceeding and in para.10 spoke of the temporary suspension of the program as follows: 10. On November 1, 1996 the Compensation process was temporarily suspended to allow the Province an opportunity to review and modify the compensation process. By letter dated December 6, 1996, attached to this my Affidavit as Exhibit "C", Jay Abbass, then Minister of Justice, assured victims and their counsel that the Province would remain committed to providing confidential compensation process upon its resumption, subject to modifications to allow the Province to fulfill its other related responsibilities, including employee discipline and child protection. [emphasis added] [13] will examine more fully the effect of the amendments of the process below. In many respects as of December 6, 1996, the ADR process may be considered have commenced anew. As of that date all applicants were required to sign new form of release. will detail below the development of the form of release then required. [14] As result of the number of complainants who came forward under the ADR process the Department of Justice (according to the Province's submission) transferred the bulk of the investigative work to its internal investigation Unit (IIU) for the processing of claims. do not have before me the terms of reference of IIU, but in 1998 those terms were expanded to include the investigation of alleged fraudulent claims. [15] It is not clear on the evidence before me when the Royal Canadian Mounted Police first became involved in the current investigations of institutional abuse. Inspector Atkins testified that the police force had been involved in 1992 in the investigation of one Patrick MacDougall for sexual offences. (Parenthetically, note that Keating had reported Patrick MacDougall initially which led to that prosecution.) Inspector Atkins testified that the Royal Canadian Mounted Police had urged the Province not to proceed with the compensation program until thorough criminal investigation had been completed. Inspector Atkins' opinion was that offering compensation would potentially hinder criminal investigation. concluded from Inspector Atkins' testimony that was precisely what did occur. [16] In December of 1995, the Royal Canadian Mounted Police formed Task Force (Operation "HOPE") whose mandate was to conduct investigations into abuse alleged to have occurred within the various Nova Scotia youth centres. IIU and Operation "HOPE" then established liaison with one another whereby information was exchanged. [17] The ambit of the Operation "HOPE" investigation was restricted to the allegations of abuse. Operation "HOPE" cooperated with various departments of the Province which have an interest in the investigation of institutional abuse, including the Department of Justice and the Department of Community Services. Fraudulent claims arising from the ADR process are investigated by the Criminal Crime Section of the Royal Canadian Mounted Police and according to Inspector Atkins it was anticipated that approximately 150 compensation program fraud complaints will be given by the Province to the Royal Canadian Mounted Police. [18] The degree to which the various roles of the R.C.M.P., the Department of Justice, the Department of Community Service and the ADR Program became meshed and interchangeable is clearly set forth in paras. 11-33 of the affidavit of Inspector Atkins: 11. The investigation unit of the Department of Justice assigned to conduct the administrative investigations for employee discipline was formed in July 1995 under the direction of Mr. Robert Barss, and is known as the Internal Investigation Unit (IIU). The IIU, until August 1, 1998, also conducted investigations to validate compensation claims, after which time separate unit was formed known as the Validation Investigation Unit (VIU). The compensation program is under the direction of Mr. Michael Dempster. 12. The investigation material accumulated by both the IIU and the VIU is contained within single repository within the Department of Justice. The majority of information in that repository is electronically stored in Canadian Law Enforcement Information Management System (CLEIMS) data base situate in the IIU offices on the 9th floor, Bank of Montreal Building, 5151 George Street, in Halifax. Information not stored in the CLEIMS data base is in hard copy (paper) or on videotape. 13. Staff Sergeant James Brown, member of the RCMP, created the Operation "HOPE" task force in December 1995, and has since its inception been the primary investigator. As primary investigator, Staff Sergeant Brown maintains operational control over all aspects of the investigation by assigning investigative tasks to other investigators and reviewing the results of all investigative steps undertaken, thereby remaining cognizant of all information pertinent to the investigation. 14. have been advised by Staff Sergeant Brown, and do verily believe, that approximately 70% of the victims of abuse who have applied to the compensation program have also made criminal complaints of abuse to Operation "HOPE". small number of alleged victims of abuse have made compensation claims to the compensation program, but have not made criminal complaints to Operation "HOPE". smaller number of alleged victims have not made compensation claims to the compensation program, but have made criminal complaints to Operation "HOPE". This information is based on the fact that during the past two years Operation "HOPE" has frequently exchanged with the IIU lists of complainants and victims and other information relevant to their respective investigations. 15. have been advised by Staff Sergeant Brown, and do verily believe, that based on the exchanged lists of complaints and victims, the vast majority of persons who have made compensation claims, and whose complaints are the basis for the government employee discipline investigations, are the same as those persons who have made criminal complaints of abuse to Operation "HOPE". 16. have also been advised by Staff Sergeant Brown, and do verily believe, that the vast majority of those persons against whom allegations of institutional abuse have been made in compensation claims are the same as those persons against whom allegations of institutional abuse have been made in criminal complaints. 17. On May 12, 2000, was advised by Staff Sergeant Brown, and do verily believe, that since December 1995, in the course of its criminal investigations, Operation "HOPE" has interviewed, and taken video-taped statements from, more than 874 persons claiming they were subjected to some form of institutional abuse while resident at one or more of the Nova Scotia Youth Detention Centres and/or residential Schools. Most of those interviewed have alleged they were abused while they were resident at Shelburne Youth Centre, formerly known as the Nova Scotia School for Boys, which is one of the five Nova Scotia Youth Detention Centres and/or residential Schools. 18. have also been advised by Staff Sergeant Brown, and do verily believe, that allegations of abuse have been made against approximately 652 named and unnamed persons. 19. am aware that if complainant from whom Operation "HOPE" obtained video-taped statement also signed "Consent to Release" form, Operation "HOPE" provided copy of the video-taped statement to the IIU when requested to do so. On July 14, 1999, Staff Sergeant Brown advised me, and do verily believe, that since December 1995, Operation "HOPE" has provided approximately 453 video-taped statements to the IIU, and provided approximately 33 video-taped statements to the VIU. 20. Ms. Krista Bayart is an employee of the Nova Scotia Department of Justice and assigned to the compensation program as document research officer, providing research assistance to the IIU and the VIU, and has been so employed since September 1997. 21. Ms. Bayart reports to the Director of the compensation program, Mr. Michael Dempster, and the duties she performs include researching the CLEIMS data base as well as original provincial government and institutional documents, and writing memoranda and briefs in relation to information located. 22. have been advised by Ms. Bayart, and do verily believe, that during the course of the IIU and VIU investigations, approximately 757 persons who have submitted compensation claims have been interviewed by the IIU and the VIU investigators, and have provided video-taped statements, or, as in at least one instance, an audio-taped statement. 23. When requested to do so by Staff Sergeant Brown, the IIU and the VIU provided Operation "HOPE" with copy of video-taped statements taken by the IIU or the VIU. On May 12, 2000, Staff Sergeant Brown advised me, and do verily believe, that since December 1995, approximately 447 video-taped statements have been provided to Operation "HOPE" by the IIU and the VIU. 24. am aware that Operation "HOPE" investigators regularly review the content of the video-taped statements obtained from the IIU and compare their content with the video-taped statements given by the same person to Operation "HOPE" investigators. 25. have become aware from numerous conversations with Operation "HOPE" investigators over the course of my involvement with Operation "HOPE", that based on investigators' comparisons of the content of the IIU and Operation "HOPE" video-taped statements, that the type and frequency of the abuse complained of, and the identity of the persons allegedly responsible for that abuse, were identical in many cases, and similar, but not identical in other cases. 26 On March 16, 1998, upon the information of Constable Ross Pritchard, member of the RCMP and an investigator with "Operation HOPE", Mr. Justice J.P. Kennedy issued General Warrant pursuant to section 487.01 of the Criminal Code authorizing peace officer to enter the offices of the IIU, situate on the 9th floor, Bank of Montreal Building, 5151 George Street, Halifax Regional Municipality, on four separate and pre-authorized occasions over 12-month period to make an electronic copy of the data contained in the IIU computer system (CLEIMS). 27. Constable Daniel MacDonald, member of the RCMP and an investigator with Operation "HOPE", with the assistance of other peace officers, executed the General Warrant on three of the four authorized occasions; on April 3, 1998; on July 10, 1998; and on March 12, 1999. Due to the RCMP's extensive involvement in the investigation of the Swissair 111 crash on September 2, 1998, no execution was conducted on October 16, 1998. 28. On or about May 10, 1999, Constable MacDonald advised me, and verily believe, that on the first execution of the General Warrant on April 3, 1998, total of 356,591 image files were electronically copied and seized from the IIU's CLEIMS data base; on July 10, 1998 an additional 46,482 image files were electronically copied and seized; and on March 12, 1999, an additional 58,324 images were electronically copied and seized. 29. have been advised by Constable MacDonald, and do verily believe, that an image file, as copied and seized, is the equivalent of one-page paper document. 30. Based on the exchanged lists of criminal complainants and compensation claimants, on the exchanged video-taped statements between Operation "HOPE" and the IIU and the VIU, and on the CLEIMS data base images copied and seized from the IIU data base, have concluded that the similarities between the Operation "HOPE" investigations and the IIU and VIU investigations in terms of who the complainants/compensation applicants are, who the alleged abusers are, and the nature and frequency of the institutional abuse allegedly complained about indicates the IIU and VIU investigations are virtually indistinguishable from the Operation "HOPE" investigations, although the purposes for the investigations are different. 31. have been advised by Staff Sergeant Brown, and do verily believe, that Mr. Earle Leroy Keating, also known as Lee Keating, is former employee of the Nova Scotia School for Boys and of the Shelburne Youth Centre, and has been named as one of the 652 persons against whom allegations of institutional abuse have been made. 32. have been further advised by Staff Sergeant Brown, and do verily believe, that total of 35 criminal allegations have been made against Mr. Keating, and as of May 12, 2000, nine (9) of those allegations are still under active criminal investigation by Operation "HOPE". 33. am aware, that since October 1999, large quantities of historical provincial government records pertaining to the operation and administration of the Nova Scotia School for Boys and of the Shelburne Youth Centre and other Nova Scotia Youth Detention Centres and/or residential Schools have been located, and are, as at May 12, 2000, still being reviewed by Operation "HOPE" investigators and staff. As result of this review, it is possible that the number of allegations made against Mr. Keating and still under active investigation may change. [19] By December 3, 1996, Operation "HOPE", IIU and Facts-Probe Inc. were all investigating allegations of abuse and on the instructions of the Department of Justice the use to which claimants' statements could be put was expanded to include investigation of claims for compensation, the Province's claims against insurance companies, the Province's claims against "perpetrators", the discipline of employees, criminal investigations and for reports of child abuse to the Department of Community Services. In addition, of course, all information supplied to the government was subject to the provisions of the Act. [20] Throughout the entire ADR process there was much publicity and media attention. THE APPELLANT [21] Keating is retired Chief Supervisor of the Nova Scotia School for Boys at Shelburne, Nova Scotia. He had been in the employ of that institution in various capacities for 30 years. He retired in 1989 and in affidavits and material filed with me, together with his oral testimony, he claims to have been proud of his work in that institution, believing he had helped "... many, many young individuals to get back on the path that led them to more productive and happier lives." With the publication of the Stratton Report of purported widespread sexual and physical abuse Keating understandably claims to have been devastated. He understood that in the process undertaken by Mr. Stratton and in the subsequent ADR process he was named as and accused of being an abuser. The allegations attracted much media attention and the fact that many past and present employees of the institutions had been accused as perpetrators of abuse was public knowledge. This was especially so for the Sherlburne institution. [22] Keating had been aware of the allegations and was aware of the Stratton Inquiry and the findings of that Inquiry. Indeed, he was given certain "can-say statements" by the original investigators which outlined certain allegations by individuals made against him. Keating opined that while he agreed that any people who had been abused should be compensated he took great issue with the findings as to the extent of the abuse. He agreed with an ADR process but the process implemented and/or administered, he said, "became nightmare for (him) and other former dedicated employees of the school for boys." [23] He continued in his affidavit submitted to me and which he confirmed in his oral testimony: had anticipated that in deciding who was entitled to compensation that fundamental principles of justice, such as fairness, truth and objectivity, would be the cornerstone of the program. While the claimants were being spared the publicity of public trial and, more importantly cross-examination by experienced defence counsel as to the validity of their claims, did not anticipate that virtually no effort would be made to ascertain whether or not the allegations being levelled were true. During the course of the compensation process, have been shown by investigators employed by the government number of so-called "can say" statements from former residents at the school, making allegations against me. In each and every instance, these allegations are completely and totally false. so advised the investigators. further advised them that in many instances could provide them with positive evidence to rebut the allegations. This really is where my nightmare began. This then is the back ground to my application. know that allegations have been levelled against me. know the names of some of the individuals who have made some of the allegations because have been shown can say statements. do not know if there are other allegations or statements which have not been shown. Most importantly, do not know if persons have been compensated on the basis of the allegations made against me false allegations. do not know if the government has accepted the word of the claimants over mine and in effect branded me an abuser without my having chance to participate in the process. simply want to obtain information about myself in my role as former employee of the Province of Nova Scotia. am not seeking information about third parties. am not attempting to hinder any criminal investigation which may be underway. simply want to know the truth. [24] This appeal is taken pursuant to s-ss. (1) and (2) of s.41 of the Act, which subsections read as follows: Appeal to Supreme Court 41 (1) Within thirty days after receiving decision of the head of public body pursuant to Section 40, an applicant or 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. Notice of appeal to third party (2) The head of public body who has refused request for access to record or part of record shall, immediately on receipt of notice of appeal by an applicant, give written notice of the appeal to any third party that the head of the public body (a) has notified pursuant to this Act; or (b) would have notified pursuant to this Act if the head of the public body had intended to give access to the record or part of the record. [25] The Attorney General of Nova Scotia has responded to this application and has resisted disclosure as requested by the appellant. Certain unnamed third parties, through counsel, have also resisted disclosure as requested. [26] On September 10, 1998, Keating had made application for information pursuant to the Act. He described the information sought as follows: INFORMATION PERTAINING TO ME IN THE N.S. GOVERNMENT"S PROGRAM OF "COMPENSATION TO VICTIMS OF INSTITUTIONAL ABUSE" (a) BACKGROUND INFORMATION ON THE PROGRAM INCLUDING CABINET DOCUMENTS (b) NUMBER AND NATURE OF ALLEGATIONS AGAINST ME, AND BY WHOM (c) SPECIFICS OF TIMES OF ALL ALLEGATIONS AGAINST ME (d) NUMBER AND DOLLAR AMOUNTS OF PAY OUTS MADE FOR ALLEGATIONS AGAINST ME (e) WHETHER ANY ALLEGATIONS AGAINST ME HAVE BEEN DISMISSED AS FRAUDULENT (f) WHETHER ANY ALLEGATIONS AGAINST ME ARE OUTSTANDING. [27] That application was refused on October 16, 1998 by Robert Doherty, the Freedom of Information and Protection of Privacy Act Coordinator and Keating then appealed to Mr. Darce Fardy, review officer, appointed pursuant to the Act. In that appeal Keating wrote 13-page letter in which he outlined his background, some of his work and employment history and set forth the reasons for his request for information. have referred to some of the information contained in that letter above. [28] Mr. Fardy by report dated March 11, 1999, reviewed Keating's request and submission. While he disagreed with certain of Keating's legal assumptions he analyzed the Province's response to the request. Mr. Fardy recommended: Recommendations: that the Department (of Justice) provide the Applicant, if he hasn't already received them, with "can says" regarding all of the accusations made against him. (The Applicant says he has received four "can says" but has evidence that there are other accusations made against him.). The summary should include the dates and times when the abuse is said to have occurred. that the Department provide the Applicant with list of any allegations that have proven to be false. that the Department provide the Applicant with the total value of compensation paid to those who accused him. that the Department provide this information in an expeditious fashion. [29] On April 29, 1999, Mr. Doherty, the "FOIPOP Coordinator" reaffirmed his original position and refused the disclosure sought. He held out the possibility that at some future time the refusal might be reviewed. [30] have been assured by counsel for the Attorney General that the "FOIPOP Coordinator", Mr. Robert Doherty, had been delegated the "powers granted to and duties vested in (the Minister) pursuant to s.44 of the Act. The delegation of the duty of the head of public body (in this case the Minister of Justice) to Mr. Doherty, presumably as "FOIPOP Coordinator", created an anomalous situation. Keating's first request for information was received by Mr. Doherty and was adjudicated upon in his delegated authority as head of the public body pursuant to s.7. Upon Mr. Doherty's refusal, Keating's right of appeal was to Review Officer, who in this case was Mr. Fardy of the Nova Scotia Utilities and Review Board. The Review Officer then pursuant to s.39, recommended to the head of the public body (Mr. Doherty by virtue of his delegated position) who, pursuant to s.40 of the Act is empowered to "make decision to follow the recommendation of the review officer or any other decision that the head of the public body considers appropriate." In effect, Mr. Doherty in his delegated positions is authorized to overrule any recommendation which might have the effect of overruling his initial decision. [31] Following the decision by the Coordinator, Keating then commenced this appeal. By submission dated May 1, 2000, Keating's counsel, Mr. W. Dale Dunlop, amended the request for information so that the following specific requests have been made: 1) the number and nature of allegations made against Mr. Keating and by whom those allegations were made; 2) the specific times and dates of all the allegations made against Mr. Keating; 3) the evidence collected in relation to investigations undertaken as result of the allegations; 4) any documents created or used in the adjudicative process and the reasoning and deliberations of the review officers involved in the program with respect to claims against Mr. Keating; 5) information on any action taken as result of the review officers recommendations; 6) the number and dollar amount of payouts made with respect to allegations against Mr. Keating; 7) whether any of the allegations leveled were dismissed as fraudulent or unproven; 8) whether any allegations remain. [32] interpret these requests to be an amplification of the generality of Keating's request of September 10, 1998. [33] The Province attempted to comply with s-s. (2) of s.41 of the Act whereby notice to third parties is required, but have been informed by the Attorney General, and accept, that although attempts were made to inform the third parties (claimants) of this appeal, the present whereabouts of many of them is now unknown. am satisfied that there has been acceptable compliance with that subsection. [34] My powers in this appeal are set forth in s.42 of the Act, s-s. (1) of which reads: Powers of 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. [35] The Attorney General submitted that as this appeal is to be determined de novo the standard of review is one of correctness and has cited the decision of Tidman, J., in Jobb v. Nova Scotia (Department of Justice) (1999), 174 N.S.R. (2d) 380 (N.S.S.C.). held during the hearing of this matter (over the objection of the Province), that as the matter is to be heard de novo the reasoning of the Supreme Court of Canada in R. v. Dennis (1960), 1960 CanLII 34 (SCC), 125 C.C.C. 321 (S.C.C.) applies: ... the distinction between "an appeal by holding trial de novo" and an appeal to the provincial Court of Appeal is that although the object of both is to determine whether the decision appealed from was right or wrong, in the latter case the question is whether it was right or wrong having regard to the evidence upon which it was based, whereas in the former the issue is to be determined without any reference, except for purposes of cross-examination, to the evidence called in the Court appealed from and upon fresh determination based upon evidence called anew and perhaps accompanied by entirely new evidence. [36] Duhaime's Law Dictionary defines the term "de novo" as follows: "de novo" Latin: new. This term is used to refer to trial which starts over, which wipes the slate clean and begins all over again, as if any previous partial or complete hearing had not occurred. [37] The Dictionary of Canadian Law, Dukelow Nuse defines de novo as follows: "de novo". [L] Fresh; new; "de novo hearing": rehearing; "trial de novo": form of appeal in which the case is retried. [38] Accordingly, decided in hearing this matter would proceed by considering all information that was before the coordinator at the time of his final decision and such further evidence produced to me whether by affidavit or by oral testimony. considered the request for information as amended by Keating and his counsel as if presented de novo. [39] For the purposes of this appeal, therefore, have before me the following: (1) Notice of Appeal dated April 29, 1999, to which is attached (a) application for access to record dated September 10, 1998; (b) letter to Darce Fardy dated December 21, 1998; (c) the report and recommendation of Darce Fardy dated March 11, 1999; (d) the decision appealed from, in the form of letter dated April 12, 1999, from Mr. Doherty; (2) Memorandum of Argument from appellant's solicitor, Dale Dunlop, dated May 1, 2000, by which the amendments to the original request for information was confirmed; (3) Affidavit of Chief Inspector Ian E. Atkins of the Royal Canadian Mounted Police; (4) Affidavit of Harry Murphy of Facts-Probe Incorporated to which was appended the following exhibits: (a) sample release form used by Honourable Justice Stuart Stratton, Q.C.; (b) copy of the "Stratton Report"; (c) copy of contract between Facts-Probe Inc. and the Department of Justice; (d) correspondence, described as introductory letter from the Department of Justice dated August 31, 1995; (e) correspondence from the Department of Justice dated December 3, 1996, mandating consent to certain uses to which disclosed information may be used; (5) Notice of Appeal by Lee Keating from the decision of the head of the public body, which notice is dated April 29, 1999 and to which is attached: (a) original application for access dated September 10, 1998; (b) appellant's brief to the review officer dated December 21, 1998; (c) decision of Robert Doherty dated April 12, 1999, refusing access as requested; (6) Affidavit of Amy Parker solicitor of the Department of Justice to which is appended the following exhibits: (a) memorandum of understanding regarding compensation for survivors of institutional abuse; (b) letter from the Department of Justice dated July 18, 1996 to "counsel for survivors of institutional abuse; (c) letter from the Minister of Justice, Jay Abbass, dated December 6, 1996 to "all compensation lawyers"; (7) Affidavit of Michael Dempster, former program director of the "Compensation for Institutional Abuse Program" to which is appended the following exhibits: (a) November 1997 guidelines for the Compensation for Institutional Abuse Program; (8) Affidavit of Francine McIntyre, clinical therapist; (9) Letter dated May 30, 2000, from the solicitor for the Department of Justice, Edward Gores, to Honourable Justice Margaret Stewart enclosing: (a) Nova Scotia information directory published on the Province's website and (b) Robert Doherty's letter of October 16, 1998, to the appellant, being the first response of the head of the public body to the appellant; (10) Affidavit of Elizabeth Mullaly, solicitor employed by the Province of Nova Scotia in the Compensation for Institutional Abuse Program to which is appended various exhibits demonstrating the documentation methods used by the program. [40] have also received the following submissions: (1) appellant's memorandum of argument addressed to the Honourable Justice Margaret Stewart, dated May 1, 2000, consisting of 20 pages; (2) prehearing submission of the Attorney General of Nova Scotia dated May 29, 2000, consisting of 49 pages together with book of authorities; (3) applicant's reply to Attorney General's submission dated July 7, 2000, consisting of nine pages; (4) further applicant's reply to Attorney General's submissions on law enforcement dated July 12, 2000, consisting of nine pages; (5) third party's response to appellant's supplementary submissions dated September 15, 2000, consisting of two pages; (6) post-hearing submissions of the Attorney General of Nova Scotia dated February 21, 2001, consisting of 67 pages and appendices; (7) appellant's post-hearing submission dated March 7, 2001, consisting of eight pages; (8) brief on behalf of unnamed third parties; (9) reply of the Attorney General. [41] In addition, held two days of hearing in chambers when the following witnesses testified: the appellant, Earle Leroy Keating, Inspector Ian Atkins, Elizabeth Mullaly. [42] large box of material has been delivered to me by the Province, but have not examined that material, in camera or otherwise. The affidavit of Elizabeth Mullaly, who had been directly involved in the record keeping of the Compensation for Institutional Abuse Program, satisfied me that need not examine the materials in advance of the hearing unless and until certain other determinations had been made. [43] For the purposes of this appeal I have considered all of the above material including Robert P. Doherty's decision of April 12, 1999 which latter item I have considered to be the decision appealed from in the context of a de novo process. In addition, certain of the contents of the affidavits are expressions of opinions which in my view in the circumstances are inadmissible. need not detail the latter observation. UNDERTAKINGS AND RELEASES [44] In the consideration of the various aspects of the Act it is essential to develop an understanding of the extent of any undertakings with respect to the confidentiality of the information sought and obtained. At the risk of some repetition, the following is chronological summary of certain events which consider important in the development of an understanding of the undertaking. (1) December 1994. The Stratton investigation was commenced and Facts-Probe Incorporated was engaged to undertake confidential interviews with alleged "victims and employees". (2) June 30, 1995. The Honourable Stuart Stratton, Q.C. completed his investigation and filed his report. Claimants had not been required to testify in public and the "victims of abuse" had been given an opportunity to "... tell their stories in private and without being made into public spectacles." Mr. Stratton, however, did say: The Minister of Justice acknowledged, however, that the fact that an investigation was to be done would not necessarily preclude an eventual public inquiry. Mr. Stratton in his investigation took steps to protect the identities of the victims as far as possible. He reported that he had attempted to take such measures to protect the privacy of the victims as were consistent with public scrutiny of the events and actions that were the subject of the investigation. However, at no time during the Stratton investigation was there any opportunity for claimants to face their alleged abusers, nor were the alleged abusers given the opportunity to face their accusers. In Mr. Stratton's conclusions he said at p.99: Many of the complainants who came forward and gave us statements did so only because of the assurance of confidentiality that was given to them. They told us in clear terms that they would not have spoken to us otherwise. This commitment to confidentiality must be honoured. At no time during the investigation did Mr. Stratton or Facts-Probe Inc. require that complainants sign releases. (3) July, 1995. The Department of Justice's internal investigation unit (IIU) was formed "... to conduct the administrative investigations for employee discipline." Until August 1, 1998, that unit also conducted investigations to validate compensation claims when that function was taken over by the Validation Investigation Unit (VIU). Both units are of the Department of Justice. (4) August 1, 1995. Facts-Probe Inc. was mandated by the Department of Justice to "contact all people who came forward to (the Stratton Inquiry) to identify if any of them are willing to give statement to the R.C.M.P., or to give statement to the Province of Nova Scotia to assist it in investigations of current employees, or to give statement to allow an investigation of alleged abusers under s.63 of the Children and Family Services Act to determine whether the alleged abuser poses risk to children. (5) September 1, 1995. The Province entered into an agreement with Facts-Probe Inc. "... to conduct investigations as are required by the Minister of Justice or his designate, always under his direction, and to his satisfaction." (6) December 1995. Operation "HOPE" was established by the Royal Canadian Mounted Police for the purpose of conducting criminal investigations into allegations of child abuse. Operation "HOPE" supplied copies of statements given by claimants to IIU, provided the claimant executed form of release. That release reads as follows: of consent to and authorize the Royal Canadian Mounted Police investigators from Operation "HOPE" to release my video taped interview and notes relating to the interview to the Province of Nova Scotia for the purpose of compensation and/or internal investigation. (7) May 15, 1996. memorandum of understanding was completed and executed between the Province of Nova Scotia and counsel for "survivors". This memorandum, inter alia, provided: 6. Statements given by Survivor and reduced to writing or recorded on videotape or audiotape with view to validating the Survivor's claim for compensation shall be used only for purposes of this process and shall not be released to the public without the prior written consent of the Survivor. The memorandum required the execution of release by claimants prior to obtaining compensation. (8) The memorandum of understanding prescribed the form of release which did not specify the use to which statement could be put. (9) July 18, 1996. The Department of Justice requested claimants' counsel to keep confidential all information on institutional records which relate to people other than their specific clients. This undertaking "... would allow us to send counsel page from the medical log which has notations relating to counsel's client without the time-consuming necessity of blanking out all other information ..." (10) December 6, 1996. The then Minister of Justice acknowledged that from November 1, 1996, the Department had suspended the ADR process in order to allow the Province time to address several issues of concern. He announced that the process would continue but changed certain time limitations within the process. He also indicated that statement protocol was to be developed among the R.C.M.P., the IIU and Facts-Probe Inc. He said: All three organizations will share information, and investigations will be coordinated to the fullest extent possible recognizing the independence of police investigations. Statements provided for the purpose of compensation will be used for investigative purposes (whether criminal or disciplinary), and for the Child Abuse Registry, in keeping with government's obligations. remain committed to providing claimants with confidential and respectful process. recognize that some may not wish their statements to be used in this wider forum; however think it strikes an appropriate balance between the interest of survivors and those of all Nova Scotians in seeing perpetrators brought to justice. (Once again, there was no opportunity for present and past employees to respond to allegations made against them.) On or before August, 1996, the form of release required of all claimants was as follows: Release Form I, of in the Province of hereby consent to the release of my name and any information given by me in the course of the Stratton investigation, or in the course of follow-up to this investigation, of abuse in provincial institutions to: Check one, two or all three: 1. The Province of Nova Scotia 2. The Royal Canadian Mounted Police, or other appropriate police force. 3. To determine whether the allegations of abuse can be investigated by relevant Children's Aid Society or the Province for the purpose of entering the abuser's name in the Child Abuse Register. DATED this day of A.D., 199 Witness Signature (11) December 3, 1996. Apparently in response to problem raised on November 25, 1996, the Deputy Minister of Justice wrote to Facts-Probe Inc. concerning the use of statements which Facts-Probe Inc. obtained from persons seeking compensation. The Deputy Minister specified that statements obtained after November 25, 1996, should incorporate the following statement: understand the statement am about to give may be used for (a) my claim against the Province for compensation, and any action by the Province to recover from insurance companies or perpetrators; (b) discipline of present employees of the Province; (c) police investigation of offences disclosed in the statement; and (d) report of child abuse to the Department of Community Services, and any investigation undertaken by that Department or child protection agency. Facts-Probe Inc. was instructed that it should not take statement from person who does not agree with the foregoing because once the information is in the hands of the Department of Justice there is an obligation to act upon it. (12) December 6, 1996. The Minister of Justice wrote to "all compensation lawyers" concerning the ADR process. have referred to the contents of that letter when addressing the subject of the affidavit of Amy Parker. (13) November, 1997. The Province established "Guidelines for the Compensation for Institutional Abuse Program of the Province of Nova Scotia." These guidelines provided that statements were mandatory and that claimants might be requested to give further statements. It required that all statements be truthful and as of October 1, 1997, all statements were to be taken by the IIU only. It did provide, however, that statements given to the R.C.M.P. or Facts-Probe Inc. prior to that date, will continue to be accepted for the purposes of filing demand. Article 5.6 of the Guidelines stated: 5.6 Statement may be used by the Province, without notice to the Claimant, for purposes relating to the alleged Physical and/or Sexual Abuse including, but not limited to: a. discipline proceedings relating to present Employees of the Province; b. any investigation or prosecution of an offence; c. report of child abuse to the Department or Community Services, and any investigation undertaken by the Department or child protection agency; d. civil litigation on behalf of or against the Province or child protection agency; or e. the identification of potential witnesses for the investigation and validation of claims. The Guidelines continued: 5.7 The Province undertakes to treat all Claimant information it holds or receives in respect of Claimant's Demand for compensation in accordance with its obligations under the Freedom of Information and Protection of Privacy Act. While the Guidelines contemplated the investigation of claims, no provision was made for response by employees or former employees against whom allegations were made. The Guidelines again specified form of release to be executed by claimants which included the following: 8. understand and agree that at any time, now or in the future, the Statement(s) and other material have submitted in support of my claim may be subject to investigation regarding the accuracy of the Statements and material. 9. understand the Statement(s) and other material have submitted in support of my claim may be used without notice to me for purpose of assessment of my claim and for other purposes relating to alleged abuse, including but not limited to: a. discipline proceedings relating to present employees of the Province; b. any investigation or prosecution of an offence; c. report of child abuse to the Department of Community Services, and any investigation undertaken by that Department or child protection agency; d. civil litigation on behalf of or against the Province or child protection agency; or e. the identification of potential witnesses for the investigation and validation of claims. (14) August 1, 1998. The Validation Investigation Unit (VIU) assumed the obligation of conducting investigations to validate compensation claims from the IIU. Of course, both are of the Department of Justice. GROUNDS FOR REFUSAL [45] The grounds for the refusal by the Minister of Justice are set forth in the Minister's pretrial memorandum and post-trial brief. In the latter the Minister has identified the issues in this appeal as follows: (a) person the subject of criminal investigation ought not to have access to information which might harm law enforcement; (b) person the subject of criminal investigation ought not to have access to information where such disclosure might harm the effectiveness of investigative techniques or procedures currently used or likely to be used; (c) person the subject of criminal investigation ought not to have access to information which could reasonably be expected to reveal the identity of confidential source of law enforcement information; (d) person the subject of criminal investigation ought not to have access to information which could reasonably be expected to reveal in any way the exercise of prosecutorial discretion; (e) person the subject of criminal investigation ought not to have access to information which is in law enforcement record and which, if disclosed, could reasonably be expected to expose the author of the record (or person who has been quoted or paraphrased in the record) to civil liability; (f) public body is entitled to refuse to disclose information where the disclosure could reasonably be expected to harm the financial or economic interests of public body or the Government of Nova Scotia, particularly information about negotiations carried on by or for public body or the Government of Nova Scotia; (g) person should not have access to personal information where the disclosure would be an unreasonable invasion of third party's personal privacy; (h) Disclosure of personal information compiled and part of an investigation into possible violation of law is presumed to be an unreasonable invasion of the third party's personal privacy. [46] The Minister then identified the various sections of the Act relied upon for the refusal to disclosure as follows: Sections 20(1), (2), (3)(b) and 20(4); 15(1)(a), (c), (d) and (f); 15(2)(b) and 17(1)(e). For the sake of completeness those subsections are now set forth in full: Personal information 20 (1) The head of public body shall refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of third party's personal privacy. Determination of unreasonable invasion of privacy (2) In determining pursuant to subsection (1) or (3) whether disclosure of personal information constitutes an unreasonable invasion of third party's personal privacy, the head of public body shall consider all the relevant circumstances, including whether (a) the disclosure is desirable for the purpose of subjecting the activities of the Government of Nova Scotia or public body to public scrutiny; (b) the disclosure is likely to promote public health and safety or to promote the protection of the environment; (c) the personal information is relevant to fair determination of the applicant's rights; (d) the disclosure will assist in researching the claims disputes or grievances of aboriginal people; (e) the third party will be exposed unfairly to financial or other harm; (f) the personal information has been supplied in confidence; (g) the personal information is likely to be inaccurate or unreliable; and (h) the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant. Presumed unreasonable invasion of privacy (3) disclosure of personal information is presumed to be an unreasonable invasion of third party's personal privacy if (b) the personal information was compiled and is identifiable as part of an investigation into possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation; Presumed not unreasonable invasion of privacy (4) disclosure of personal information is not an unreasonable invasion of third party's personal privacy if (a) the third party has, in writing, consented to or requested the disclosure; (b) there are compelling circumstances affecting anyone's health or safety; (c) an enactment authorizes the disclosure; (d) the disclosure is for research or statistical purpose and is in accordance with Section 29 or 30; (e) the information is about the third party's position, functions or remuneration as an officer, employee or member of public body or as member of minister's staff; (f) the disclosure reveals financial and other similar details of contract to supply goods or services to public body; (g) the information is about expenses incurred by the third party while travelling at the expense of public body; (h) the disclosure reveals details of licence, permit or other similar discretionary benefit granted to the third party by public body, not including personal information supplied in support of the request for the benefit; or (i) the disclosure reveals details of discretionary benefit of financial nature granted to the third party by public body, not including personal information that is supplied in support of the request for the benefit or is referred to in clause (c) of subsection (3). Law enforcement 15 (1) The head of public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (a) harm law enforcement; (c) harm the effectiveness of investigative techniques or procedures currently used, or likely to be used, in law enforcement; (d) reveal the identity of confidential source of law-enforcement information; (f) reveal any information relating to or used in the exercise of prosecutorial discretion; Further grounds (2) The head of public body may refuse to disclose information to an applicant if the information (a) is in law-enforcement record and the disclosure would be an offence pursuant to an enactment; (b) is in law-enforcement record and the disclosure could reasonably be expected to expose to civil liability the author of the record or person who has been quoted or paraphrased in the record; or Financial or economic interests 17 (1) The head of public body may refuse to disclose to an applicant information the disclosure of which could reasonably be expected to harm the financial or economic interests of public body or the Government of Nova Scotia or the ability of the Government to manage the economy and, without restricting the generality of the foregoing, may refuse to disclose the following information: (e) information about negotiations carried on by or for public body or the Government of Nova Scotia. [47] In addition to s.17(1)(e), the Minister has essentially set forth two general grounds for the refusal to disclose: interference with law enforcement and invasion of personal privacy. [48] will deal firstly with the matter of invasion of personal privacy, secondly with the matter of law enforcement considerations and finally, the question of financial or economic interests. [49] Justice Cromwell of the Nova Scotia Court of Appeal outlined the approach he followed in the circumstances of Dickie v. Nova Scotia (Minister of Health) (1999), 1999 CanLII 7239 (NS CA), 176 N.S.R. (2d) 333 (C.A.), paras. [5] and [6]: [5] The application of the Act in this case involves three step analysis. Under the Act, personal information (a defined term) is not to be disclosed if its disclosure would be an unreasonable invasion of third party's personal privacy. The first step in the analysis is, therefore, to determine whether the disputed material is personal information within the meaning of the Act. Disclosure of personal information relating to employment history is presumed to be an unreasonable invasion of personal privacy. (s.20(3)(d)). The second step, therefore, is to determine whether this presumption applies to the disputed material. The presumption, however, is only that. It may be rebutted if, taking into account all of the relevant circumstances, including the matters specified in s. 20(2), it is concluded that the disclosure is not an unreasonable invasion of third party's personal privacy. The third step is to make that determination. [6] While there are some subsidiary matters to be addressed, the main issues on the appeal relate to these three steps of the analysis. would state the issues as follows: 1. Do the disputed documents contain "personal information" within the meaning of the Act? 2. If so, is it personal information related to employment history so that its disclosure is presumed to be an unreasonable invasion of personal privacy? 3. Does the balancing of all the relevant circumstances favour disclosure? [50] Justice Moir took similar approach in Re Cyril House ((N.S.S.C.) April 20, 2000, (unreported) (S.H. No. 160555). He analyzed the approach which he followed in that case as follows: propose to consider this appeal in the following way: 1. Is the requested information "personal information" within s.3(1)(i)? If not, that is the end. Otherwise must go on. 2. Are any of the conditions of s.20(4) satisfied? If so, that is the end. Otherwise ... 3. Is the personal information presumed to be an unreasonable invasion of privacy pursuant to s.20(3)? 4. In light of any s.20(3) presumption, and in light of the burden upon the appellant established by s.45(2), does the balancing of all relevant circumstances, including those listed in s.20(2), lead to the conclusion that disclosure would constitute an unreasonable invasion of privacy or not? [51] Both these approaches are restricted in their purview to the matter of "personal information". [52] As have said, the evidence of Elizabeth Mullaly, by affidavit and orally, persuaded me that any meaningful production of documents will require more analysis of documents by the Department. am not now reviewing specific documents. [53] Inspector Atkins said that 35 allegations were made against Keating and at the time of hearing this appeal nine of those allegations were still outstanding and required further R.C.M.P. investigation. These allegations undoubtedly were of personal nature from the points of view of the complainants (third parties) and of Keating. [54] For the specific purposes of my analysis of the facts in this case, as they relate to personal information, will adopt the approach of Justice Moir in Cyril House. 1. The information supplied by various complainants, whether orally, in writing, videotaped or reduced to writing concerning Keating were "personal information" within the meaning of s.3(i) of the Act; they undoubtedly included recorded information about the complainants and Keating. Allegations of abuse by complainants do not fall neatly within the various numbered sub-paragraphs of s-s. (i), but do conclude that such allegations are included in the general description, "... recorded information about an identifiable individual ..." 2. disclosure of personal information, however, is not necessarily an unreasonable invasion of third party's personal privacy. As Moir, J. concluded, if any of the conditions of s.20(4) are satisfied, "... that is the end" of the consideration and the material is to be disclosed. My analysis of the various releases required of claimants, assuming they were appropriately completed, leads me to the conclusion that the claimants have consented to disclosure or to process which would inevitably and unavoidably lead to disclosure to Keating. If the information leads to criminal proceedings against him, Keating would have had to have disclosure. If the information leads to proceeding to enter his name on the Child Abuse Register, Keating would have to have disclosure. If the information leads to employee discipline (and the claimant would have had no reason to realize that Keating had retired) Keating would have had to have disclosure. If the information leads to civil action against perpetrator of abuse or against an insurer of the Province, or to the identification of witnesses, Keating would have had to have disclosure. The Attorney General has cited many cases which considered the matter of personal privacy. None, however, was case dealing with releases of the kind executed by the claimants herein and, accordingly, while helpful, do not provide specific guidance. Justice Wright of this Court addressed the question of the confidentiality of the information sought herein in relation to an application for production pursuant to Civil Procedure Rules 20.06 and 26.06 in case dealing with an action by the Province for insurance indemnification for awards made to claimants in the ADR process. That case is Nova Scotia (Attorney General) v. Royal Sun Alliance Insurance Co. of Canada et al. (2000), 190 N.S.R. (2d) 208 (N.S.S.C.). Justice Wright said at p.212: [17] Dealing first with the individual complainants, it is to be noted that number of them have since signed what is commonly known as the second or third forms of release through the ADR Compensation Program which specifically authorized the Province to use their statements and other supporting material for purposes of recovery proceedings against the insurers. There is further number of individual claimants who have signed the form of release attached as exhibit to the Harry Murphy Affidavit. This is essentially consent form by virtue of which individual complainants authorized the release of their names and any information given in the course of the Stratton investigation, or in the course of follow-up to the investigation, to any one or more of the Province of Nova Scotia, the RCMP or other police force, or the Children's Aid Society for the purpose of entering an abuser's name in the Child Abuse Register. Given that waiver, there can not be said to have been reasonable expectation of privacy or confidentiality of such information from the Province's liability insurers, especially where the Province announced prior to Mr. Stratton's appointment that in the event that liability was determined, compensation to residents would be paid. [18] That leaves pool of individual complainants, the size of which is unknown to the court but which is probably relatively small, who gave statements to Mr. Stratton or his investigators but who did not sign any such form of release or consent. It is really only this group of individual complainants in respect of which the claim for confidentiality of communication can be asserted. [22] turn now to the claim for privilege over the interviews and/or statements given by several employees of the five subject residential schools in the course of the Stratton investigation. Although the confidentiality Order does not extend to these individuals, conclude that the claim for privilege does not satisfy the four Wigmore criteria. These individuals, who spoke to the Stratton investigation team on voluntary basis, must be taken to have known that any assurances of confidentiality could not be absolute where the request through their union president for immunity from criminal prosecution or disciplinary action could not be granted. Mr. Stratton simply had no authority to grant any such immunity and said so. At all events, the interest of the defendants at stake in this litigation in making full answer and defence to the claims that are brought against them outweighs any interest that might be at stake in the maintenance of the relationship between the Stratton investigation and the employees who were interviewed. Documents pertaining to discussions with employees of the five residential schools must therefore be produced by the plaintiff for purposes of this litigation. [23] Having thus disposed of the claims for privilege in respect of the individual complainants and employees of the five residential schools under investigation, come full circle to the blanket assertion of privilege which extends to the remainder of the contents of the eight sealed cartons of material. As noted earlier, these contain records of interviews of past and present department officials and superintendents of the five residential schools, as well as files obtained from police and from the Ministers of Justice and Community Services. [24] No authority has been cited to me to demonstrate that the law recognizes blanket privilege claim over spectrum of documents. Indeed, it was said by Justice Dickson in R. v. Solosky, 1979 CanLII (SCC), [1980] S.C.R. 821; 30 N.R. 380, that privilege can only be claimed document by document, with each document being required to meet the criteria for the privilege. Obviously, that analysis cannot be done in the present application where the documents remain sealed in boxes which are in the possession of the Province. [25] The argument is made by the defendants that since the blanket claim for privilege over these documents must fail, and so find, the entirety of the contents of these boxes must now be produced by the plaintiff without any prior review of them by plaintiff's counsel. Plaintiff's counsel have submitted, on the other hand, that in the event that disclosure is ordered, they ought to be afforded an opportunity to undertake review of the documentation to determine whether such issues as relevance, solicitor-client privilege or Cabinet privilege might warrant non-disclosure. respectfully agree with Justice Wright's reasoning and conclusions. therefore conclude that s.20(4)(a) applies and subject to certain conditions expressed below, disclosure of allegations of abuse made against Keating is not an unreasonable invasion of claimants' privacy. 3. Notwithstanding my conclusion that the claimants may have consented to disclosure, will proceed to consideration of s.20 of the Act. Section 20(2): Would disclosure of the information "... be an unreasonable invasion of third party's personal privacy..."? In the formulation of my answer to this general question am to consider all relevant circumstances as have been put before me. Section 20(2)(a): Is disclosure desirable for the purpose of subjecting the activities of the Government of Nova Scotia or public body to public scrutiny? The public body, in this context, is the Department of Justice and the ADR process. Keating, however, has only requested information with respect to himself. He has alleged that public funds may have been spent on false and unproven accusations against him and that he (and inferentially the public), is entitled to scrutinize the allegations made against him and the process by which expenditures were made as result of those allegations. agree with his general position, but disclosure, in my view, should not specify amounts paid to individual claimants; nor can it identify amounts paid for particular acts. accept the evidence of Elizabeth Mullaly that the records of the process will not permit such specific accountability. Section 20(2)(b): Will the disclosure of personal information sought be "... relevant to fair determination of the applicant's rights?" In my view, in order to determine his rights, Keating has right to know what persons have accused him of abusive behaviour and the specifics of those complaints. distinguish between R.C.M.P. held information and that of the Department of Justice and the ADR process. Section 20(2)(e): do not understand how third party "... will be exposed unfairly to financial or other harm." The Attorney General has submitted that third parties may be subject to possible defamation actions. That may be correct; but the question is whether such exposure would be unfair. Truth (justification) is always defence in defamation action and in certain circumstances, so is the defence of qualified privilege. Accordingly, am unable to see any element of unfairness in the possible exposure of third parties to defamation action. Section 20(2)(f): Has the personal information been supplied in confidence? The affidavit evidence submitted by the Attorney General, together with the oral testimony of the Attorney General's witnesses show that promises of confidentiality were extended to third parties at various times since the inception of the process. Mr. Stratton through Facts-Probe Inc., undoubtedly extended promises of confidentiality. Those promises and undertakings must be respected but as have noted above, they were all clearly subject to the provisions of the Act. In addition and obviously, Keating has not requested the information supplied to Mr. Stratton. Those undertakings, however, were as have set forth above subject to the possibility of an eventual public inquiry. [55] After the Stratton inquiry report, the purposes for statements given by complainants changed dramatically. The purpose of the Internal Investigation Unit, as early as July, 1995, was for "investigations for employee discipline". That purpose surely contemplated confrontation of employees accused of abuse. Notwithstanding oral undertakings given to complainants, that was the recorded purpose for further statements taken from complainants. While that purpose might not necessarily have included public aspect, it most certainly contemplated that an alleged abuser (Keating) would be made aware of the complaints and would be afforded the opportunity to respond. [56] The matter of determination of whether information was "received in confidence" was examined closely in Order No. 331-1999; Vancouver Police Board, [1999] B.C.I.P.C.D. No. 44. 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.16(1)(b) cases: 1. What is the nature of the information? Would reasonable person regard it as confidential? Would it ordinarily be kept confidential by the supplier or recipient? 2. Was the record prepared for 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 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? In my view, in view of the releases signed and the express purposes for the various releases, it is clear that the record or information obtained could not have been expected to remain confidential. Accordingly, the answer to Question No. posed above would be in the negative. Similarly, while various witnesses said that they promised confidentiality orally, such promises fly squarely in the face of the wording of the various releases. Therefore, the answer to Question posed above must be that there was an express agreement in writing as to the potentially public uses which could be made of the information. [57] The purpose for the taking of statements, by August 1995, included an investigation of alleged abusers under s.63 of the Children and Family Services Act That is the Child Abuse Register section of that Act. Subsections (3) and (4) of s.63 read as follows: Application for finding of abuse (3) The Minister or an agency may apply to the court, upon notice to the person whose name is intended to be entered in the Child Abuse Register, for finding that, on the balance of probabilities, the person has abused child. In camera hearing (4) hearing pursuant to subsection (3) shall be held in camera except the court may permit any person to be present if the court considers it appropriate. 1990, c.5, s.63. [58] Accordingly, any action taken pursuant to this section of the Children and Family Services Act would require notice to an alleged abuser (Keating) and an opportunity for that person to respond. [59] It was also made clear by the various Ministers of Justice throughout this process that statements given by claimants might be used for the purposes of conducting criminal investigations. will deal more precisely with the matter of criminal investigations below, but in my view it is clear that statement given for the purpose of commencing or furthering criminal investigation will in all probability if prosecution ensues, ultimately be transmitted to an accused person and will be subject to scrutiny in criminal trial. [60] The MOU of May 15, 1996, undertook that statements by "survivor" were to be used only for the purpose of the process outlined in the MOU and were not to be released to the public without the prior written consent of the "survivor". The MOU, however, required the execution of release. By August, 1996, the prescribed form of release contemplated consent to the release of information to the R.C.M.P. (leading to public process as have set forth above) or for the purpose of entering the abuser's name in the child Abuse Register (the process as have set forth above). By 1996 the purposes of the statements were extended to include any action by the Province to recover from an insurance company or perpetrators actions potentially requiring disclosure. [61] The form of the release established by the Province's guidelines with respect to the use of statements was as have set forth above. That form of release reflected the purposes set forth in the Guidelines. therefore conclude that the personal information supplied by the various claimants accompanied by forms of releases by which claimants consented to any of the purposes leading to public process were not supplied in confidence as contemplated by s-s.(f). Section 20(2)(g): Keating says the information concerning his alleged abuses is "inaccurate or unreliable". The Attorney General has submitted for that reason the information ought not to be disclosed. If the information sought by Keating was intended to be put forward by him as reliable, the Attorney General's position would be acceptable. Keating, however, has asked for access to the information so that he would have right to correct it. That is precisely one of the purposes of the Act as set forth in s.2(a)(ii) which reads: The purpose of this Act is (a) to ensure that public bodies are fully accountable to the public by (ii) giving individuals right of access to, and right to correction of, personal information about themselves, ... Section 20(2)(h): As Mr. Keating has requested personal information about himself, any damage he may suffer to his personal reputation resulting from disclosure is irrelevant. Disclosure of accurate and truthful complaints made against Keating will not unfairly damage his reputation; nor will it unfairly damage the reputation of any truthful complainant. Section 20(3)(b): Was the personal information compiled and identifiable as part of an investigation into possible violation of law? Keating has not requested information from the R.C.M.P. Operation "HOPE" obtained statements and information from various claimants. That information retained solely by the R.C.M.P. is not the subject of this application. Information released by Operation "HOPE" of the R.C.M.P. was "for the purpose of compensation and/or internal investigation" by the Province of Nova Scotia. It was not compiled by the Justice Department as part of an investigation into possible violation of criminal law, but was, rather, compiled by the Province for its own purposes. The Province has cited Re Langley Township Bylaw Enforcement Records (2000) B.C. (Order 00-01) as authority to the effect that the application for information sought should be refused. With respect, this decision is not an authoritative, but perhaps more importantly, that application was for disclosure of information compiled for the specific purpose of law enforcement, but the application herein is for information sought for the purposes of the Province even though it may initially have been obtained by the R.C.M.P. for law enforcement purposes. That is, the initial purpose for the information at the time it was obtained by the R.C.M.P. was clearly for potential criminal prosecution and as such, would be protected. Nonetheless, when the R.C.M.P. obtained the necessary release from claimant and then provided information to the Province find that law enforcement protection was lost. Similarly, in Order P-395; Ministry of Culture and Communications, [1993] O.I.P.C. No. 5, the records sought were being used for criminal investigations and premature disclosure could have interfered with those investigations. But the application herein is for information and not necessarily records and, considering the length of time since the allegations were made do not consider this application to be premature. As well, distinguish between the present application for information as opposed to one for specific documents. also note that there is before me no evidence of imminence of criminal proceedings. Rather, Inspector Atkins made it abundantly clear that although the possibility of criminal proceedings has not been ruled out there is clearly no imminence of criminal proceedings. In Ministry of the Attorney General (Ont.); Order P-1603, [1998] O.I.P.C. No. 188, (a) the application was for specific files; (b) no releases were signed by the claimants and (c) there was no "diminished expectation of privacy" as is present herein as is evidenced by the releases signed. conclude for the various reasons have set forth above that information supplied by R.C.M.P. and authorized by claimants by the use of the form of release set forth above does not fall within the category of s.20(3)(b). Section 20(4): For the reasons have set forth above have concluded that the third parties (claimants) have consented to disclosure, as contemplated by s-s. (a). Section 15(1)(a) and (c): For the reasons set forth in my consideration of s.23(b), the disclosure of the information sought will not harm law enforcement and I am not convinced it will harm investigative techniques or procedures. Section 15(d): The disclosure sought herein will not reveal the identity of confidential source. The claimants, by virtue of the releases signed, have contemplated an eventual revelation. Section 15(1)(f): have not been persuaded that the information sought will interfere with prosecutorial discretion. Section 15(2)(b): The information sought herein is not part of law enforcement record and, as have said, do not understand how the information might expose any author to civil liability. Section 17(1)(e): The Province has not shown that this disclosure sought "... could reasonably be expected to harm the financial or economic interests ... of the Government of Nova Scotia." BURDEN OF PROOF Section 45 of the Freedom of Information and Protection of Privacy Act reads: Burden of proof on head of public body 45 (1) At review or appeal into decision to refuse an applicant access to all or part of record, the burden is on the head of 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 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. Burden of proof where third party (3) At review or appeal into decision to give an applicant access to all or part of record containing information that relates to third party, (a) In the case of personal information, 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; and (b) In any other case, the burden is on the third party to prove that the applicant has no right of access to the record or part. 1993, c.5, s.45 (1) The head of the public body has failed to prove that Keating has no right of access to records or parts of records which identify him as an abuser. (2) Keating has proved to my satisfaction that disclosure of the information sought, notwithstanding that it may be personal information about a third party, would not be an unreasonable invasion of the third party's personal privacy. (3) am satisfied that the third parties have failed to prove that Keating has no right of access to certain of the records or parts of the records as will identify below. CONCLUSIONS [62] refer again to Keating's request for information, as amended by his counsel. That is, he has requested "information pertaining to me in the N.S. Government's program of 'Compensation to Victims of Institutional Abuse'". emphasize that he has not requested specific documents, but rather, information; that request was for the following enumerated items: 1) the number and nature of allegations made against Mr. Keating and by whom those allegations were made; Elizabeth Mullaly set forth in her affidavit the type of information which may be available. She said, in para.5: 5. This complainant-focused database can be used to generate report on an individual employee. Using the employee code, the report that is produced will list the name of the complainant, the type of abuse alleged and the complainant's committal dates. There is column entitled 'NOA' which stands for "Notice of Allegation". If an "S" appears under that column, it indicates that Notice of Allegation was served on the employee in question. Where there is an "I", it indicates that the employee was interviewed with respect to the allegation. In the Appellant's case this information differs from the transcripts of interviews in the Program's files. The information available by this process should be disclosed to Keating. That is, Keating is to be given information of the number and nature of allegations made against him. He is to be given the names of those claimants who have made those allegations, provided they have signed the completed release forms as were specified above. 2) the specific times and dates of all the allegations made against Mr. Keating This information pertaining to those claimants who signed release as above is to be released to Keating. That is, Keating is to be informed of the times and date of the allegations referred to in (2). 3) the evidence collected in relation to investigations undertaken as a result of the allegations; This information pertaining to claimants who have signed the release is to be released to Keating. 4) any documents created or used in the adjudicative process and the reasoning and deliberations of the review officers involved in the program with respect to claims against Mr. Keating; These documents are not of factual nature. They would appear likely to be merely expressions of opinions and conclusions and as such, they should not be released. 5) information on any action taken as result of the review officers' recommendations; Review officers' recommendations were merely opinions and should not be released. 6) the number and dollar amount of payouts made with respect to allegations against Mr. Keating; Ms. Mullaly said in her affidavit: 9. Using the information from FoxPro, which lists the complainants who made allegations against an individual, it is possible to manually produce report that will include the names of the claimants and the category and monetary award, if any, made within the Program. But then Ms. Mullaly continued: 10. The vast majority of claims are made against more than one employee and, consequently, the award, if any was made, was global in nature. The assessment process made no attempt to allocate any part of the award to or between individual employees. As result, there is no database that can produce record showing the amount of compensation tied to the allegations made against specific employee. Accordingly, when payouts or settlements were made in global manner involving Keating and others then no disclosure is required, where settlement or payout was made for actions attributed to Keating only, that he is entitled to that information. 7) whether any of the allegations leveled were dismissed ... or unproven; This information concerning all claimants who have signed releases is to be supplied to Keating. 8) whether any allegations remain. This request is not sufficiently clear and need not be addressed. [63] In complying with this decision the Department of Justice is to take care not to identify by name any other alleged perpetrators of abuse. [64] Finally, this is an application for information and not for specific documents. If the parties encounter unforeseen difficulties in coming to form or order, will be prepared to hear them. [65] am prepared to receive written submissions from the parties with respect to the costs of this application as to entitlement and quantum.
The applicant was aware that allegations of abuse had been made against him in an alternative dispute resolution process undertaken by the Province with respect to his former employment. He applied under the Freedom of Information and Protection of Privacy Act for certain information concerning these allegations. The FOIPOP Privacy Coordinator denied access and the applicant appealed. Appeal allowed; in all cases where the claimants had signed release forms the applicant is to be supplied with information as to the number and nature of allegations made against him and the names of the complainants; the specific dates and times of all allegations made against him; the evidence collected in relation to the investigations undertaken as a result of the allegations; the number and dollar amount of payouts made for actions attributable only to the applicant; and information as to whether any of the allegations leveled were dismissed or unproven. The appeal should proceed as an appeal de novo. The applicant was not seeking information from R.C.M.P. files and the release of information which the police had passed on to the Department of Justice would not harm law enforcement as the information was compiled by the Province for its own purposes. The complainants had been required to execute releases whereby the information supplied could be used for various specified purposes, all of which potentially involved public disclosure or disclosure to the applicant. Law enforcement protection was lost when a release was obtained from the complainants and the information was passed to the Province. There was no unreasonable invasion of the claimants' privacy. The applicant was entitled to know what he had been accused of and should have the right to correct the record.