I Fr edom of Information Review
5
Compelling Public Interest vs Public Curiosity
A 17-month quest for information about the estab­
lishment of the first gambling casino in the province of
Ontario, ended abruptly on 16 October 1995. ‘I uphold
the decision of the O C C ’,1 the Ontario Information and
Privacy Commission inquiry officer wrote. The O C C is the
Ontario Casino Corporation, a provincial government
agency that oversees casino gambling in the province of
Ontario in Canada. I was seeking ‘all records that will
allow me to determine how the province negotiated an
interim operating agreement with Windsor Casino Ltd’.
While the appeal was lost, and none of the approximately
560 pages of records identified in the response were
released, the case generated an invaluable discussion
about what constitutes public interest.
Much of the credit for the discussion should go to the
Freedom of Information Research Unit, at the Faculty of
Law, University of Tasmania, Australia. Rick Snell as
head of the unit, and his students, produced an excellent
brief on Australian case precedents with very short no­
tice. At the outset, I would like to express my appreciation.
A t issue
At issue in the Ontario casino request (Appeal number
P-9500083/O rder P-1026) were the Fol provisions which
balance the right to access with protections for institu­
tions and third parties. In the casino request and sub­
sequent appeal, the arguments dealt with three separate
sections of the Ontario legislation:
s.17(1) third party information,
s.18(1)(c), (d) and (e) economic and other interests,
s.19 solicitor client privilege.
Under s. 17, the Ontario legislation prevents disclosure
of third party information which would reveal trade se­
crets or financial information. Section 17 can also be
considered for information that the third party believes
was supplied in confidence where disclosure could ‘give
rise to a reasonable expectation’ of harm. Section 18 of
the Act provides that information can be withheld if dis­
closure could ‘reasonably be expected to prejudice the
economic interests of an institution or the competitive
position of an institution’. Protections under s.19, solici­
tor-client privilege, extend to records ‘subject to the
common law solicitor-client privilege’.
The Ontario Casino Corporation did not release any
records in response to my request submitted on 16 May
1994. In the end, all of the exemptions being sought by
the insitution were applied, which left the issue of com­
pelling public interest as the deciding factor.
C o m p e llin g p u b lic interest
In the letter of request, I stated that ‘I believe access to
the records requested is in the public interest’. However,
it only became apparent during the oral arguments to­
ward the end of the appeal process that the compelling
public interest argument might weigh heavily in the final
decision. The Information Commission inquiry officer,
Anita Fineberg, asked what I feel constitutes ‘compelling’
public interest. Compelling? As a reporter and producer
with a television news organisation which oversees three
T V outlets, it was plain in my mind. First, there was the
principle of government accountability in launching a
major new economic and policy initiative. Then there
were the hard numbers: the economic impact of the
province’s casino in the city of Windsor; 2200 jobs; and
F bruary1996
revenue of approximately $1.4 million dollars a day. In
addition, the casino in Windsor is the first in the province
— a benchmark for any others. My news organisation
had produced in excess of 200 news stories about the
casino and related issues over a period of 16 months,
from the time an operator was chosen on 2 December
1993, through the first anniversary of the interim casino
opening in May of 1995.
The inquiry officer explained that, at that time, the
override had not been applied and upheld in court. If it
were to be applied, compelling public interest would have
to ‘clearly outweigh’ the purpose of the exemptions. I
granted that no one was banging on the door of our TV
station in Windsor, Ontario, demanding information on
how the province negotiated an interim operating agree­
ment for the casino, and left determined to find a defini­
tion of compelling public interest and legal precedents.
The concept of compelling public interest is difficult to
define, a point which is made in the report by the 1980
Royal Commission on Freedom of Information in Ontario
(Williams Commission). The Williams Commission report
set the stage for the introduction of the province’s Fol
legislation. I argued that the framework for applying the
public interest override in s.23 can be defined by consid­
ering the following:
•
the intentions of the Williams Commission report,
•
the provisions of the Ontario legislation requiring dis­
closure,
•
the provisions which limit certain discretionary exemp­
tions, and
•
the provisions allowing for a public interest override.
I also argued that it is essential to seek case prece­
dents in other jurisdictions, most notably Australia, in the
absence of precedents in Ontario. Australia has a similar
form of parliamentary government with similar traditions
in law, and, most significantly, the Williams Commission
used Australia, in part, as a model for its recommenda­
tions on Fol legislation in Ontario.
In chapter nine of the Williams Commission report,
‘Public Government For Private People; The Report of
the Commission on Freedom of Information and Individ­
ual Privacy’ 1980, accountability and public participation
are two of the key rationales which are cited as grounds
for implementing freedom of information legislation in
Ontario. The chapter is entitled ‘The Need For Reform’.
At the outset, the Commission quoted Sir Lyman Duff
who, as a Chief Justice of the Supreme Court of Canada,
said:
There can be no controversy that [parliamentary] institutions
derive their efficacy from the free public discussion of affairs,
from criticism and answer and counter-criticism, from attack
upon policy and administration and defence and counter-attack,
from the freest and fullest analysis and examination from every
point of view of political proposals.
The need for accountability and public participation in
a democracy, I argued, constitutes grounds for compel­
ling public interest which clearly outweigh discretionary
exemptions. I also argued that the fact the institution did
not disclose any records as s. 10(2) requires, was another
reason why there is compelling public interest. My posi­
tion: the only way that there can be ‘free public discus­
sion’ of the government’s approach to a major economic
and policy initiative, such as the establishment of the first
6
casino, is through scrutiny of the process by which the
terms of operation were negotiated.
At the suggestion of the Freedom of Information Unit,
I outlined several questions in the final written arguments
which I hoped would be answered through the request.
Was the government sensitive to concerns about the
possible disruption of a 24-hour casino operation for
nearby residential and commercial property owners?
W as a provision allowing for 24-hour gambling granted
as a means of satisfying the interests of the commercial
operators? W as a proposal for riverboat gambling part of
the original deal or did it evolve subsequent to the nego­
tiations on the interim operating agreement? Was it part
of the original plan to maintain the interim casino location
as a satellite to the permanent casino (now under con­
struction)? How was the formula for dividing up profits
devised? W hy did the city not get a cut of the profits? Was
there any consideration to giving the city a share? W hat
were the Government’s expectations in pursuing a ca­
sino project? Have those expectations been met or ex­
ceeded? W hat kind of difficulties did the province have
in balancing its own interests against those of the com­
mercial operator?
The Williams Commission report does not specifically
define the concept of compelling public interest. But it
cites as examples, protection of the environment, con­
sumer protection, and public health and safety, as areas
where there may be public interest. I suggested that the
Information Commission could consider three others:
social impact, economic impact, and policy implications.
In the original request I stated that I am a journalist
and it was my intention to disseminate the information for
the public benefit. The law does not confer any special
rights on journalists, nor do I claim any. However, I
believe that the way in which the information will be used
is an important factor which should be considered in
weighing public interest.
Canadian precedent
As a case precedent, I drew on a decision by the Infor­
mation and Privacy Commissioner in the province of
British Columbia BC O rder No. 22-1994, September 1,
1994. It noted that the purpose for which the information
is being sought can be considered in determining
whether there is public interest in disclosure. In the case,
a labour organisation was seeking access to records and
arguing public interest. The BC order reads in part:
My first remark is that the public interest argument would be
stronger if it was a matter of information being given to the public
about accidents that happen to the public in retail food opera­
tions rather than unionized employees, as in the present case.
A union’s articulation or self-conception of the public interest
may not rise to a high enough threshold to invoke section 25
[the public interest override]. It seems more difficult, for exam­
ple, for a union acting on behalf of its own members, as in the
current case, to build a successful public interest claim than a
newspaper.
The public interest override was not applied in this
case. However, I argued that the fact the order noted ‘the
public interest argument would be stronger if it was a
matter of information being given to the public’ recog­
nises the fact that a request being made with the ex­
pressed intent of disseminating the information for the
public benefit should be a factor which weighs in favour
of the override being applied.
Freedom of Information R vi w
Australian case law
However, I believe the strength of the argument for
considering compelling public interest was in the sum­
mary of Australian case law prepared by the Freedom of
Information Research Unit, under Rick Snell, Lecturer in
Administrative Law and national editor of the F ol Review,
and students Helen Sheridan and Susan Clennett, with
contributions from Lisa-Jayne French, Mel Harris, Fluer
Grey and Abdul Hassan.
A key point: in the absence of a definition of compel­
ling public interest, application of the override must take
into account the circumstance of individual requests in
the context of the underlying principles for Fol. The brief
noted that the Victorian Fol legislation in Australia con­
tains a public interest override which is almost identical
to that in Ontario, along with exemption provisions which
relate to trade secrets and commercial information, and
information that could dam age the interest of the state.
While there is no precise definition of the concept of
public interest, the summary of case law outlined a
number of ‘guidelines’ used in the application of the
override.
In the introductory paragraphs, the brief summarised
the review, saying ‘The Victorian cases have established
that a section like s.50(4) (or Ontario’s s.23) is concerned
with balancing all relevant considerations, it is not about
defining the public interest at a particular point in time’. It
continued, ‘Consequently, relevant considerations, and
therefore the public interest are dynamic, and change
over time to reflect the new circumstances of each situ­
ation’.
Among the factors suggested by the brief to be con­
sidered:
•
general public interest,
•
whether the document would disclose reasons for the
decision,
•
whether the information is already public,
•
whether the information could contribute to the admini­
stration of justice.
Factors which should not be considered:
•
seniority of the persons involved,
•
the fact disclosure would embarrass/cause loss of
confidence in government.
In addition, as a result of the review of Australian case
law, four general categories of public interest were iden­
tified:
•
public debate and the public’s right to be informed,
•
democratic/freedom of speech grounds,
•
accountability grounds,
•
impropriety/allegations concerning improper conduct.
At the time that the final arguments in the Casino
request were being made, the newly elected premier of
the Province of Ontario had suggested that a referendum
would be held on the issue of casino gambling. In speak­
ing to the category of public debate under Australian law,
the brief cited Re Binnie and Ors and Department of
Industry, Technology and Resources and A nor (1986) 1
VAR 345. It noted that ‘the Tribunal recognised an impor­
tant ground of public interest, namely the desirability that
the public have sufficient knowledge to properly consider
and debate the issues’. In Binnie, chemical testing on
animals at a proposed testing centre was the issue. The
Fol Research Unit brief indicated the Tribunal found that
it was in the public interest ‘that the public debate be an
informed discussion rather than merely an intense one’.
Fr edom of Information Revi w
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Freedom of Information Revi w
Given the fact that there was a suggestion of a referen­
dum with regard to casinos in Ontario, it was argued in
the brief that ‘there is an overwhelming public interest to
ensure that the public have access to this type of infor­
mation and are sufficiently informed to properly partici­
pate in the democratic process’.
Another Tribunal decision, Re Thwaites and Depart­
m ent o f Prem ier and Cabinet (AAT of Victoria, Rosen PM,
23 March 1994; (1994) 51 F ol Review 31), was cited as
an example where third party information was being
sought. The brief pointed out that three documents were
ordered released in order to assist the public to under­
stand the basis on which a government contract was
awarded:
The Tribunal held that the debate did not reflect a mere ‘political
controversy’ but a ‘serious interest and concern in relation to the
basis on which the contract was awarded’. While the Tribunal
acknowledged that some of the material had been communi­
cated in confidence, it stated that ‘commercial entities must
expect that in certain circumstances, material provided to gov­
ernment will be released by virtue of the Act’.
With regard to democratic grounds, the Fol Research
Unit paper argued that ‘the recognition of the importance
of participation by the citizen in the affairs of the Govern­
ment and the associated right to participate in the affairs
of government can now be said to be part of the public
interest recognised by the High Court’.
In support of the statement, several precedents were
cited including Australian Capital Television Pty Ltd v The
Commonwealth (1992) 177 CLR 106. The High Court
decision in Australian Capital Television set out the need
for informed debate, hence disclosure of information
about how decisions were made.
The decision reads in part:
Communication in the exercise of the freedom is by no means
a one way traffic, all the representatives have a responsibility
not only to ascertain the views of the electorate but also to
explain and account for their decisions and actions in Govern­
ment and to inform people so that they make informed judge­
ments on relevant matters.
And the brief went on to note that the High Court said
there is ‘the need for freedom of communication to allow
citizens to criticise government decisions and actions,
seek to bring about change and influence the elected
representatives’.
Another key issue in the Ontario casino request was
accountability. The brief cited several case examples
where Australian tribunals found that there was public
interest in releasing information on government decision
making. In Re Robinson and University o f Melbourne
(1991) 5 VAR 231 a journalist obtained documents relat­
ing to funds donated to the university ((1992) 40 Fol
Review 44). The Fol Research Unit pointed out that
s.50(4) was used successfully to override the exemp­
tions protecting information about a trade secret, busi­
ness, commercial or financial undertaking which could
expose the agency to a disadvantage.
Meantime, in a separate case, the provisions which
protect financial transactions prevailed. In Re Mildenhall
and Department o f Treasury and A nor A C T 16 Sept 1994;
(1995) 56 F ol R e vie w 24 (Grand Prix case), the Tribunal
found that the ability of governments to participate in
business activities would be extremely limited if they
were not able to offer and honour confidentiality. And the
brief indicated that the Tribunal looked to other methods
of accountability, for example the powers of the State
Auditor General and the general scrutiny of parliament.
F bruary1996
In its brief, the Fol Research Unit also included a
discussion of public interest as it relates to concerns
about impropriety or allegations concerning improper
conduct saying that ‘many of the decisions relating to the
public interest test contained in s.50(4) suggest that in
allowing information to be disclosed under this provision
there will be a higher likelihood of disclosure if there is
some form of controversy involved, or suggestion of
impropriety’. The category was identified as a result of
the review of Australian case law, and it was not in any
way an issue in the Ontario casino request.
C o n clu s io n
In the final decision, inquiry officer Anita Fineberg noted
that the cases summarised in the brief were ‘very useful’
in considering the application of the public interest over­
ride. She wrote that ‘there are certain issues which
arouse the public’s curiosity’. However, she noted that ‘to
a large degree, the records do not specifically respond
to the questions [of how the government balanced differ­
ent interests] in that they do not indicate the “why” and
“how” behind the queries’. She continued: ‘even if I were
to find that such a public interest exits, I am not satisfied
that it is compelling so as to outweigh the purpose of the
exemptions’.
At the conclusion, order P-1026, dated 16 October
1995, concluded that there is a compelling public interest
in the ability of the O C C to negotiate the best possible
deal for the province in the development of the perma­
nent casino and any future casino projects. Although
disappointed, both for myself and those who worked so
hard at the Fol Research Unit, I hope this case will help
others arguing compelling public interest and make it
clear that there is more than public curiosity.
As an end note, I would like to point out the value of
the internet as a tool in making contacts and seeking
information about freedom of information legislation. The
initial contact and subsequent correspondence which led
to Fol Research Unit getting involved and developing a
brief, was via internet e-mail. The Ontario Information
And Privacy Commission has recently made the legisla­
tion and some of its orders available electronically on the
World Wide W eb at http://www.ipc.on.ca.
Many thanks again to Rick Snell and the students at
the Fol Research Unit at the University of Tasmania Law
School.
Ian C aldw II
IanCaldwellisareporter, CFPL-TV, London, Ontario, Canada.
icaldwel@icis. on.ca
Reference
1. Order P-1026, Appeal P-9500083, Ontario Casino Corpo­
ration, Information and Privacy Commission/Ontario,
16 October 1995.