Ruling denies RNC information from citizens’ files

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The Newfoundland Supreme Court has ruled the province’s Office of the Citizens’ Representative doesn’t have to disclose information from certain complaint files to the RNC, as was previously ordered by the provincial court.

The information being sought by the RNC included the names, addresses, dates of birth and telephone numbers of persons who made complaints to the Office of the Citizens’ Representative which were allegedly investigated by then-citizens’ representative Fraser March.

According to court documents, the RNC was investigating March for possible offences of fraud and breach of trust by a public officer. The offences were believed to have occurred in the course of March’s employment as citizens’ representative and as a result of his investigation of complaints.

On July 6, 2010, provincial court Chief Judge Mark Pike issued a production order directing current citizens’ representative Barry Fleming to produce the information from the complaint files requested. Fleming made an application to Pike seeking an exemption from producing the confidential information demanded by the production order. Fleming argued the information sought was privileged or otherwise protected from disclosure by the Citizens’ Representative Act and/or was protected from disclosure by common law privilege. Pike dismissed the application in a written judgment Nov. 4, 2011.

“While I have no difficulty in coming to the conclusion that the relevant provisions of the Citizens’ Representative Act in Newfoundland and Labrador do create a privilege which would protect documents and information gathered by the Office of the Citizens’ Representative from disclosure in certain circumstances, this does not necessarily lead to the conclusion that an exemption ought to be granted here,” Pike wrote. “The interest of the public would suffer greater harm where the police are restricted in their ability to investigate (alleged) fraud by the guardian of the office upon the people who fund its operations and rely on its confidences.”

Fleming then applied to the Supreme Court of Newfoundland and Labrador for an order quashing Pike’s ruling thus granting the exemption. Newfoundland Supreme Court Justice Robert Hall heard the application.

In his ruling, Hall said that contrary to the conclusions of Pike, “I am satisfied that the legislative privilege as established by the Citizens’ Representative Act is absolute. There are no situations such as in the case at bar, i.e. the prosecution of a criminal offence, the obtaining of necessary information to do so will outweigh confidentiality considerations established by the Citizens’ Representative Act.

“The Chief Judge of the Provincial Court, having concluded that provisions against disclosure granted to the Citizens’ Representative under the Citizens’ Representative Act is not absolute constitutes an error in law on the face of the record. … The Chief Judge of the Provincial Court failed to properly address why statutory prohibition against disclosure thereof did not apply.”

Organizations: Office of the Citizens, Supreme Court

Geographic location: Newfoundland and Labrador

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