By Esther S.J. Oh 

John Howard Society of Canada v Canada (Public Safety) is a federal court decision published October 25, 2022, in which the court found that handwriting cannot universally be treated as personal information under subsection 19(1) of the Access to Information Act (the “ATIA”) and as such, handwriting cannot be entirely redacted as a matter of course in anonymized Access to Information and Privacy (“ATIP”) requests. Instead, the court found that handwritten information must be reviewed the same as typewritten information, with the same principles applied. This case would be of interest to registered charities and not-for-profits that have filed ATIP requests or are the subject of an ATIP request. 

The plaintiff in the case, the John Howard Society (the “Society”), is a registered charity that operates throughout Canada with the objective of providing just and humane responses to crime and its causes through prevention, intervention and re-integration. The Society requested access under the ATIA to information regarding inmate grievances from Bath Institution that involved allegations that Correctional Officers (“CO”) were not wearing masks as required by public health mandates during the COVID-19 pandemic (the “ATIP Request”). In responding to the ATIP Request, Corrections Service Canada (“CSC”) redacted all handwritten portions of the grievances. Out of the 12 identified grievances in the ATIP Request, only two were typed, and the remainder were handwritten since the inmates’ access to computers is limited. The CSC’s approach resulted in the entirety of the handwritten grievances being redacted.

At issue in the case was whether all handwriting is personal information under section 3 of the federal Privacy Act, and therefore should be entirely redacted for ATIP requests pursuant to the ATIA. The CSC took the position that the handwritten portions were personal information that could identify the individuals involved, and redacted them completely, based on the reasoning this was necessary in order to comply with section 19 of the ATIA. 

In her decision, Madam Justice McVeigh found that handwriting cannot be “blanket redacted”, although “there may be aspects of the handwritten information” that fall under section 3 of the Privacy Act. In this regard, the court stated that the evidence did not establish a serious possibility that release of the handwritten grievances will allow identification of inmates who wrote the grievances and there were no grounds to exempt the handwritten grievances from disclosure under s 19(1) of the ATIA. The court ordered that before release of the handwritten complaints, CSC must review them and ensure appropriate redactions are made.

​Read the November 2022 Charity & NFP Law Update