To make clear the necessity of privacy as a context for respect, love, friendship and trust is to bring out also why a threat to privacy seems to threaten our very integrity as persons. …
Charles Fried, “Privacy,” (1968) 77:3 Yale Law Journal 475–493
Article 1: Human dignity is inviolable. It must be respected and protected.
Whereas respect for the dignity of human beings, equality of women and men, and recognition of their rights and freedoms constitute the foundation of justice, liberty and peace;
4. Every person has a right to the safeguard of his dignity, honour and reputation.
Courts have vigorously defended the open court principle against those seeking to prevent public access to documents, testimony and the identity of parties. However, in other legal contexts the courts have also recognized the right to privacy. In a column I wrote in 2013 about the development of new common law protections for privacy and the possible impact on the open court principle, I posed the following question:
If the common law can evolve to address technological change, is the open court principle also open to such change?
The debate about the appropriate balance between the open access principle and privacy will continue. This is fundamentally a debate around access to justice from two different perspectives: the litigants’ and society’s. Does publicly identifying participants in the administrative justice system limit their access to justice? Does allowing anonymity in administrative justice proceedings result in a closed and opaque system for the public? Much more discussion needs to occur, as well as more evidence-based analysis, before we can answer these questions.
The Supreme Court recently revisited the balance between the open court principle and privacy in Sherman Estate v. Donovan, 2021 SCC 25. Although the change in approach is perhaps subtle, there is some indication that the open court principle has been weakened slightly (and that privacy rights have been expanded). It is too soon to tell what the impact might be but at least some of the recent court decisions have recognized that the ground has shifted as a result of the SCC decision. In this column I will set out the Supreme Court’s new refined approach to the open court principle and set out some of the potential impacts on administrative decision-makers.
The presumption in favour of open courts remains a strong one, according to the Supreme Court. However, there can be “exceptional circumstances” where competing interests justify a restriction on the open court principle. In such cases, the person seeking the restriction must first demonstrate that openness is a serious risk to a “competing interest of public importance”. Then the requestor must show that the restriction is necessary to prevent the risk and that the benefits of the restriction outweigh its negative effects. This statement by the court is described as a restatement of the principles set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 by Justice McVeigh in Fraser v. Canada (Public Safety and Emergency Preparedness), 2021 FC 821.
It is in the approach to privacy interests that the court opens the door for closed hearings a little wider. The disclosure of highly sensitive personal information in open court proceedings can result in “an affront to the affected person’s dignity”. This affront to dignity is, according to the court, narrower than privacy generally and more than just a source of discomfort to an individual. Dignity, the court says, “transcends the interests of the individual and … is a matter that concerns the society at large”. This “affront to their dignity” is something that “society as a whole has a stake in protecting”.
The court held that this public interest in dignity will only be seriously at risk when the personal information strikes at the “core identity” of the person (or the “biographical core” of the individual): “information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings.”
The court stated that it is not enough to simply invoke an important public interest (in this case an affront to dignity); a party requesting confidentiality must also show a serious risk to that interest, based on the facts in each case.
This, in my view, is the critical part of the analysis – what exactly is the serious risk in disclosing the information? The court states that to preserve the integrity of the open court principle, the protection of a person’s dignity should be seriously at risk only in limited cases: “Nothing here displaces the principle that covertness in court proceedings must be exceptional”.
The court reiterates earlier statements from other decisions about embarrassment or distress not being sufficient to justify confidentiality. However, the court stated that there was value in leaving individuals free to restrict when, how and to what extent highly sensitive information about them is communicated to others in the public sphere, “because choosing how we present ourselves in public preserves our moral autonomy and dignity as individuals”. However, this is not simply protecting their privacy for its own sake “but privacy where it coincides with the public character of the dignity interests of these individuals”.
So how does a violation of privacy go beyond embarrassment or discomfort and become elevated to an attack on dignity interests? In its discussion of this question, the court has broadened the scope of privacy protection in court and other open proceedings:
Violations of privacy that cause a loss of control over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspects of oneself to others in a selective manner. Dignity, used in this context, is a social concept that involves presenting core aspects of oneself to others in a considered and controlled manner. Dignity is eroded where individuals lose control over this core identity‑giving information about themselves, because a highly sensitive aspect of who they are that they did not consciously decide to share is now available to others and may shape how they are seen in public. … [sources omitted]
The court notes that where dignity is impaired, the impact on the individual is not theoretical but could lead to real consequences, including psychological distress. The protection of the dignity interest of individuals is analogous to the physical safety interest of individuals:
The administration of justice suffers when the operation of courts threatens physical well‑being because a responsible court system is attuned to the physical harm it inflicts on individuals and works to avoid such effects. Similarly, in my view, a responsible court must be attuned and responsive to the harm it causes to other core elements of individual well‑being, including individual dignity. This parallel helps to understand dignity as a more limited dimension of privacy relevant as an important public interest in the open court context.
The court states that although the open court principle results in intrusions on personal privacy “in virtually all cases”, dignity is more rarely in play. The court stated that the privacy interest of dignity will only be at serious risk “where the sensitivity of the information strikes at the subject’s more intimate self”.
The court then tries to delineate what kind of information can be sealed to protect dignity:
- when the information reveals something sensitive about them as an individual, not generic information that reveals little if anything about who they are as a person.
- intimate or personal details about an individual (the “biographical core”)
The court, unfortunately for those facing requests for confidentiality orders, felt there was no need to provide a catalogue of the range of sensitive personal information that could give rise to a serious risk to a person’s dignity. However, the court provided the following examples:
- stigmatized medical conditions
- stigmatized work
- sexual orientation
- subjection to sexual assault or harassment
- detailed information about family structure and work history (in some circumstances)
The court set the questions that decision makers need to answer in each request for restricting access as follows:
- does the information reveal something intimate and personal about the individual, their lifestyle or their experiences?
- where the information is sufficiently sensitive to strike at an individual’s biographical core, is a serious risk to the interest made out “in the full factual context of the case”?
The court emphasized that this last question is a fact-specific determination but provided some general observations:
A. Courts should be sensitive to the ease of dissemination of information through information technology.
B. It is appropriate to consider the extent to which information is already in the public domain. The fact that private information is available somewhere in the public sphere does not mean that there could not be further harm to the privacy interest by additional dissemination.
C. The seriousness of the risk is also affected by the probability of the dissemination suggested by the applicant actually occurring. This probability analysis is not a mathematical analysis but is to be determined based on the “totality of the circumstances” and balanced alongside other relevant factors.
D. Individual sensitivities alone are generally insufficient to justify a restriction on court openness where they do not rise above those inconveniences and discomforts that are inherent to court openness.
In Fraser, the issue was the release of information about two inmates, requested by the families of their victims. Justice McVeigh used the concept of dignity in denying access to these records to the families of victims:
Although these Inmates’ crimes are repugnant beyond reproach or human decency, this legislation equally applies to all inmates. I have to see the intensely intimate details of the requests by the Applicants as potentially striking at individual dignity, and thereby rebutting the presumption of the OCP [open court principle]. Not only are copies of medical records and psychological assessments asked for, but every detail of their lives since their incarceration. …
Justice McVeigh did not agree with the families that the affront to dignity must specifically be something that society as a whole has a stake in protecting. She stated that the Supreme Court has recognized a concept of “dignity” (as opposed to simple privacy) which must be protected, and that society as a whole has a stake in protecting that dignity.
The decision in Fraser is also a good example of the scope of dissemination of information as a potential factor in sealing documents. Part of the argument of the families for full disclosure of all the documents relating to the inmates was that details of those documents were discussed at the open parole hearing. In dismissing the families’ request the judge did not comment on the scope of dissemination issue but it could easily have been part of her analysis. In the same way in tribunal settings, an adjudicator might seal a psychiatrist’s report but allow testimony about that report in a public hearing.
In the recent decision of the BC Court of Appeal in A Lawyer v. The Law Society of British Columbia, 2021 BCCA 284, the court noted that there was support in the common law for the consideration of risk to reputation in granting a sealing and anonymization order but that the Supreme Court’s decision in Sherman Estate had modified the law “and made the test more stringent”. At issue in A Lawyer was the reputational harm to the lawyer, the firm, and the firm’s employees. The court stated that because of the Sherman Estate decision “it is a live question” whether reputation is enough to constitute an important public interest. The Court of Appeal rightly characterized the new test as whether the information sought to be sealed is sufficiently sensitive and “bears on their dignity” in such a way as to displace the strong presumption in favour of the openness of court.
The Court of Appeal found that the information was sensitive personal information that would strike at the core of the persons seeking to be anonymized. In this case the information included serious allegations of dishonesty that were still under investigation by the law society. The release of the information would affect the livelihood of the applicants and other employees at the firm, particularly given that the firm’s success was dependent on referrals and reputations. Of particular importance to the court was that the lawyer and the firm were still under investigation and the allegations were simply allegations at this point. The court also noted that the sealing order could be revisited later in the proceedings (presumably when the law society made actual findings).
The decisions that have followed Sherman Estate are not surprising in their outcomes. Sensitive medical and counselling information (Fraser) and unsubstantiated allegations that go to the core of a professional reputation (A Lawyer) is information that has routinely been sealed or resulted in anonymization of decisions. What tribunals and courts will have to sort out is what other kinds of information strike at the “biographical core” of an individual.
As tribunals sort this out, there are a few things to keep in mind:
- The test for confidentiality has been restated and the language from the Sierra Club test should be replaced by the Sherman Estate test in tribunal decisions
- Tribunals must articulate the dignity interest at play to justify the information being sealed
- The scope of the dissemination is an important consideration, especially in light of the publication of information on the internet
- The “serious risk” assessment is a fact-based exercise and tribunals need to consider what evidence will be required to meet the test of a serious risk. Will testimony of the person requesting confidentiality be required? In certain cases, will expert evidence be required?
Sherman Estate is also a reminder to decision writers about the importance of limiting personal information contained in a decision to evidence that is relevant. In R.F. v. J.W., 2021 ONCA 528, the Ontario Court of Appeal was critical of a trial judge’s reasons for a number of reasons, including the setting out of many embarrassing details about the parties, as well as revealing medical and other confidential information about their children. Relying on Sherman Estate, the court stated: “And the inclusion of confidential information that is unnecessary to the determination of the case should be avoided”.
The focus of the analysis required when balancing the serious public interest in the dignity of individuals against the important public interest of open proceedings has been shifted by the Supreme Court. What that means for the future of confidentiality requests at the tribunal level still needs to be determined. Writing 18 years ago, former Chief Justice Beverley McLachlin highlighted the challenges decision-makers face: “If we are serious about peoples’ private lives, we must preserve a modicum of privacy. Equally, if we are serious about our justice system, we must have open courts. The question is how to reconcile these dual imperatives in a fair and principled way”. Although Sherman Estate does focus the question, it still leaves challenges to tribunal adjudicators in answering it.