Order F2008-031: Summary
DATE: September 16, 2009
PUBLIC BODY: Alberta Insurance Council
FOIP REQUEST: The applicant, an insurance agent, requested access to his personal information in files relating to two complaints. The Alberta Insurance Council (AIC), the regulatory body for insurance agents, disclosed some of the requested information, but withheld some information under various exceptions. The applicant requested a review of AIC's decision by the Information and Privacy Commissioner. The Adjudicator decided to notify the Mutual Fund Dealers Association of Canada (MFDA), Partners in Planning Financial Services Ltd. and individuals who provided information to AIC when AIC investigated the complaints.
ISSUES: AIC argued that records were excluded from the scope of the Act because they related to a prosecution that had not been completed. AIC also claimed exceptions to disclosure for advice from officials and records subject to solicitor-client privilege. Both AIC and MFDA claimed that disclosure would be harmful to law enforcement and especially to the sharing of information by law enforcement agencies. The applicant claimed that personal information of third parties should be disclosed because it was relevant to a fair determination of his rights.
DECISION AND REASONS:
- The Adjudicator rejected AIC's argument that the records were excluded from the scope of the Act because the records related to a prosecution that was not completed (section 4(1)(k)). The exclusion did not apply because the proceedings in question did not constitute a "prosecution," defined as a prosecution of an offence under an enactment of Alberta or Canada, in which the offence carries true penal consequences. According to the Supreme Court of Canada, a "true penal consequence" is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than to the maintenance of internal discipline within a limited sphere of activity (R. v. Wigglesworth,  2 S.C.R. 541).
- The Adjudicator determined that AIC's investigations of the applicant, which were referred to the Life Insurance Council, constituted "law enforcement" under the FOIP Act because the investigations and available penalties were authorized by the Insurance Act or the regulations and ministerial orders made under it.
- The Adjudicator also determined that MFDA is recognized under Alberta's Securities Act as the national self-regulatory organization for the mutual fund industry. The activities of the MFDA constitute "law enforcement" under the FOIP Act because MFDA's investigations and the penalties that may be imposed derive their authority from the Securities Act.
- The Adjudicator rejected AIC's argument that disclosure would harm an ongoing or unsolved law enforcement investigation (section 20(1)(f)), since AIC's investigation was not "currently taking place or in progress" (see Order F2004-023). The Adjudicator then considered MFDA's claim that its separate investigation of the applicant was ongoing. The Adjudicator noted that section 20(1)(f) is not restricted to ongoing investigations by the public body to which the access request is made. He further noted that AIC had specifically submitted that it had MFDA's law enforcement investigation in mind when it withheld information. Nevertheless, the Adjudicator found that no evidence of specific harm had been given, so section 20(1)(f) did not apply.
- The Adjudicator found that AIC's submissions regarding the confidentiality and integrity of investigative processes did not satisfy the test for harm to investigative techniques and procedures under section 20(1)(c) (see Orders F2004-022 and F2004-032), especially with regard to continued effectiveness (Orders and F2007-005). The Adjudicator also found that MFDA's claims that the sharing of information between law enforcement agencies would be hindered were too speculative to meet the harm test (see Orders F2003-004 and 99-023).
- The Adjudicator found that AIC's claim of solicitor-client privilege (section 27(1)(a)) did not apply to records which did not evidently entail the giving and seeking of legal advice. AIC could not rely on this exception for general information, such as information about availability for court dates and some information in activity logs.
- The Adjudicator decided that AIC did not properly apply the exception for advice from officials (section 24(1)(a) and (b)) because the information did not meet the test set out in Orders 96-006 and F2004-026). MFDA had provided information that might have been used for decision-making, but the information did not suggest a course of action.
- The Adjudicator considered whether it would be an unreasonable invasion of the personal privacy of third parties to disclose their personal information. He decided that the presumption of unreasonable invasion of privacy applied to records created and used for law enforcement purposes (section 17(4)(b)). The Adjudicator found that the refusal or inability of third parties to consent to disclosure of their personal information weighed against disclosure.
- The Adjudicator gave considerable weight to the applicant's claim that the personal information of third parties was relevant to a fair determination of his rights (section 17(5)(c)). This weighed in favour of disclosure.
- The Adjudicator accorded little weight to the possibility that the information had been supplied in confidence (section 17(5)(f)). Where the personal information consisted of a name together with the fact that an individual was discharging a work-related responsibility, this weighed in favour of disclosure. The Adjudicator made an exception to this general principle where the personal information related to a report by a co-worker about the applicant (other than a compliance officer whose job it was to report on adherence to MFDA rules and bylaws).
The Alberta Insurance Council was ordered to give the applicant access to additional records.
SECTOR: Government - Other