Statement on
Openness and Privacy

Public Servants Disclosure Protection Tribunal Canada

April 2012

Introduction

The Public Servants Disclosure Protection Tribunal (the “Tribunal”) is an independent, quasi-judicial tribunal that operates in most respects like a court. The Tribunal is subject to the open court principle, holding its proceedings in public and giving public access to its records.

It is important to have open and transparent proceedings at the Tribunal since its decisions can impact the federal public administration and there is a public interest in maintaining and enhancing public confidence in the integrity of public servants and public institutions. It is also important to show that there is an effective framework for public servants who believe they may have suffered a reprisal due to the disclosure of wrongdoing.

The Open Court Principle

Courts and tribunals in Canada are bound by the common law open court principle, which is protected by the Constitution. Court and tribunal proceedings and records are open to the public and the media unless, in rare circumstances, a judge or tribunal member orders otherwise. The open court principle fosters transparency, fairness and public trust in rights-based litigation and administrative justice systems.

The Tribunal recognizes that it is important to balance the open court principle with the right to privacy. The Tribunal therefore gives the public access to its proceedings and to its records subject only to certain circumstances when measures limiting access may be found necessary to prevent serious harm or injustice.

Accordingly, members of the Tribunal are committed to facilitating public and media access to Tribunal proceedings and documents.

In Camera Hearings

In exceptional circumstances, the Tribunal can depart from the open court principle during a hearing. For example, a hearing may be held in camera (limiting access to the public or media), if the requesting party can demonstrate to the Tribunal that circumstances require it (see section 21.3 of the Public Servants Disclosure Protection Act, SC 2005, c 46).

Orders of Confidentiality

All documents filed with the Tribunal that are part of the record (such as submissions and supporting affidavits) are a matter of public record unless a legislative provision or order prohibits public access.

Upon request of a party, the Tribunal may order that certain material, such as an exhibit, be sealed in order to protect the confidentiality of personal or sensitive corporate information.

In accordance with rule 15 of the Public Servants Disclosure Protection Tribunal Rules of Procedure, SOR/2011-170, a motion may be made for an order of confidentiality regarding information in a filed document. Such a motion must be made in writing at the time the document is filed and identify the information at issue as well as the harm which would result from its public disclosure.

If the Tribunal orders that information contained in a document is to be kept confidential, the party must provide the registrar with a version of the document that is redacted to reflect the terms of the order and that is marked with the word “NON-CONFIDENTIAL” in bold-faced and capitalized letters.

If the Tribunal orders that information contained in a document, or that the entire document, is to be kept confidential, the registrar will mark the filed copy of that document with the word “CONFIDENTIAL” in bold-faced and capitalized letters.

Privacy Considerations

As part of the open court principle, all Tribunal decisions and summaries of those decisions are also made accessible to the public on the Tribunal website. The Tribunal minimizes the inclusion of private or personal information in the decision-making process to the greatest extent possible, while also respecting the open court principle.

In publishing and posting its decisions, the Tribunal follows the Heads of Federal Administrative Tribunals Forum statement, endorsed by the Council of Canadian Administrative Tribunals, as well as the principles found in the Use of Personal Information in Judgments and Recommended Protocol, approved by the Canadian Judicial Council. These documents set out principles to ensure a consistent approach to the inclusion of personal information in decisions. They also provide guidance to administrative tribunals on posting decisions on their websites.