Attaran v. Canada (National Defence), 2011 FC 664

June 2014

Summary: Severance of records must be done to ensure a high degree of certainty that personal information will not be disclosed. In this case, photographs of the faces of individuals could not be redacted (by using a black line through the eyes, or otherwise) to ensure that the individuals could not be identified; therefore, the government institution was right to black out the entire face.

Facts: Professor Attaran made an access to information request to the Department of National Defence (“DND”) seeking information concerning detainees who had been transferred by the Canadian Forces to the Afgan Ministry of Defence. DND withheld some of the requested information, including photographs of the faces of the detainees — in particular, three detainees whose medical records suggested they suffered facial injuries while being captured. Professor Attaran had made a similar request to the Correctional Service of Canada (“CSC”) who provided him with photographs with the faces partially blacked out. Professor Attaran complained to the Information Commissioner, who concurred with DND’s decision not to release the photographs. He then applied to the Federal Court.

Result: The Federal Court upheld DND’s decision to refuse to release the photographs.

Decision: All parties agreed that the photographs constituted “personal information” under the Privacy Act. The main issues were whether the photographs could be released in a redacted form and whether they should be released because the public interest in disclosure outweighed any privacy rights.

In terms of redacting, the Federal Court disagreed with Professor Attaran’s argument that redaction should be tested against the probability of disclosure. The Court concluded that redaction is an exercise that requires “a high degree of certainty”, “no room for error or risk of disclosure of one’s identity”, and that “extreme caution” is justified — particularly in the circumstances in this case, where identifying the detainees would place their families at risk of reprisals within Afganistan. Redaction is not a balancing exercise between the interests of privacy and disclosure.

The Court criticized CSC for releasing the redacted photographs of certain detainees, stating that the modest black line through the eyes of the persons depicted left “many distinct and recognizable facial features in place.” Those attempts to redact photographs showed that redacting a photograph is not as simple as it seems.

Finally, Professor Attaran argued that the public interest in disclosure outweighed the privacy interests in that case and therefore the information should be disclosed under s. 8(2)(m) of the Privacy Act. The Court concluded that there was a real risk that the disclosure of the identity of these detainees could put them or their families in harm’s way because of a suspicion of collaboration. Further, there was no public interest in disclosure because DND released medical reports that described the extent of the injuries that could have been seen on their faces. The photographs themselves would not have been useful in the assessment of the conduct of Canadian Forces or officials. Further, the photographs did not depict a pattern of “systemic and depraved abuse of prisoners.” In this context, the privacy interests of the individuals who were photographed outweighed the public interest in disclosure.