Following more than nine years of litigation, an Alberta judge has formally upheld the journalistic status of the ATA News.
On Jan. 9 Justice Ouellette of the Court of Queen’s Bench ruled in favour of the Association and quashed the decision of an adjudicator with Alberta’s Office of the Information and Privacy Commissioner. In his decision, Justice Ouellette stated that the decision of the adjudicator was “unreasonable, unintelligible at times and not transparent and definitely not defensible.”
The original adjudicator’s decision related to an Aug. 30, 2005, article in the ATA News that reported the names of individuals who had elected to opt out of active ATA membership and who were no longer subject to the Code of Professional Conduct. Some of the former members named filed a complaint with the Office of the Information and Privacy Commissioner claiming that their privacy protections under the Personal Information Protection Act (PIPA) had been breached.
The privacy commissioner’s initial order stated that, although the Teaching Profession Act authorizes the Association to establish a newspaper and publish articles, the ATA is not a newspaper and the article was not published for journalistic purposes. This argument allowed the adjudicator to find that the journalist exemptions that exist in PIPA do not apply to the Association, and, thus, the disclosure of the names violated PIPA.
In overturning the adjudicator’s decision, Ouellette stated that it was not reasonable for the adjudicator to find that the Association could establish a newspaper and publish articles but also state that the Association lacked the capacity to publish articles strictly for journalistic purposes.
He also stated that the adjudicator erred in finding that, because the ATA does not solely operate for purely journalistic purposes, it does not have the ability to publish articles.
Left unchallenged, the order would have made the effective operation of the ATA News as a newspaper impossible, and so the Association took the order to the Court of Queen’s Bench for judicial review. Ouellette’s decision reinforces the journalistic capacity of the ATA News.
Long, winding road
It has not been a straight path to getting this decision from the Court of Queen’s Bench. The review of the decision was first heard by Queen’s Bench Justice Marshall in October 2006.
Justice Marshall based his decision on the matter solely on the Association’s arguments that the privacy commissioner’s office had failed to meet its timelines for making a decision, while ignoring the arguments on journalistic status. During the next several years, the matter of timelines wound its way through the appeal courts to the Supreme Court, which heard the matter on Feb. 16, 2011. In December 2011, the Supreme Court issued a decision upholding the commissioner on timelines and ordering that the remaining unresolved issues (notably, the Association’s arguments about journalistic status) be heard again before the Court of Queen’s Bench.
Justice Ouellette’s 2015 decision should, however, finally put the matter to rest. Ouellette deemed that the matter would not be referred back to the privacy commissioner because of the lengthy passage of time and because another finding of the Supreme Court found that PIPA in its entirety was unconstitutional. Neither the privacy commissioner nor Alberta Justice can appeal a ruling of this type. ❚