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w w w . C A N A D I A N L a w y e r m a g . c o m A P R I L 2 0 1 6 45 stigma and concerns for personal security. But those who sought to remain anony- mous to protect their reputation, or their employment prospects, have had no luck. The tribunal still struggles with how it should treat requests to remain anony- mous because of fear of negative impli- cations for employment and academic prospects. It's also unsure what to do when parties want their names taken out once a decision has already been published. Should it name children at the age of majority? Should it make sensitive infor- mation in exhibits available to the public if the information deals with non-parties? Those are just some of the privacy ques- tions it will have to answer, said Grant. Lorne Sossin, dean of Osgoode Hall Law School, isn't concerned with the letter of the policies tribunals will even- tually create around these questions. "The answer to me isn't the policy you have," he said. "In fact, reasonable, smart people are going to disagree about what's appropriate for those public set- tings for all sorts of good reasons. The only answer that's unacceptable is, 'It never occurred to us; we haven't given it any thought.' There's a lot of deference to organizations that wrestle with this if they actually wrestle it." Practical obscurity Accessing information once required visiting musty courthouse basements, digging through boxes, attending court to watch proceedings, waiting in line, and paying for copies of court docu- ments, making access to courts and court files practically obscure. "Until the Inter- net came along, the concept of practical obscurity operated in favour of privacy protection and the need-to-know prin- ciple. Generally speaking, only people with a particular interest in a matter will go through the trouble to obtain informa- tion about it," said Kosseim. "Today, bar- riers to access to court and tribunals have dramatically lowered. Virtually everyone has rapid, pervasive, and persistent access to decisions literally at the tip of their fingers and from the cozy comfort of their couch — for just about any pur- pose, including the salacious curiosity of a neighbour, voyeurism, embarrassment of others, or even more insidious cases such as fraud, stalking, intimidation, and extortion and so forth." Practical obscurity died with the birth of the Internet, but in a rather interesting twist, some say the inconvenience of pre- Internet days could be the answer to the privacy quagmire courts and tribunals face today. Roslyn Levine is the executive legal officer in the Office of the Chief Justice at the Ontario Superior Court. She told attendees at the OBA conference they might be surprised that the Canadian Judicial Council believes the balance between these two competing interests is actually achieved through practical obscurity. A decision that poses pri- vacy concerns wouldn't be published, but it's still accessible to those with enough vested interest to seek it out at the court- house. "I think it's just a bit odd that the old school problem of practical obscu- rity turns out to be the new, I guess, bal- ance between privacy and transparency," Levine said. She stressed, however, that the bal- ance between transparency and privacy in the court context is skewed in favour of openness. Sealing court orders is a "serious exception" to the open courts principle, and judges are strongly encour- aged to publish their decisions, she said. "There are a number of principles that apply to judgment publication, which really are intended to support openness," but "when a judge doesn't publish a deci- sion and even when there's an order of non-publication, that doesn't mean there isn't access." To Kosseim, both courts and tribu- nals need to be "judicious" when select- ing the level of detail that should go into decisions. Their goal, she said, should be to "satisfy the important values that underlie the open courts principle with- out going beyond what's needed." UNTIL THE INTERNET CAME ALONG, THE CONCEPT OF PRACTICAL OBSCURITY OPERATED IN FAVOUR OF PRIVACY PROTECTION AND THE NEED-TO- KNOW PRINCIPLE. PATRICIA KOSSEIM, Offi ce of the Privacy Commissioner of Canada A DAILY BLOG OF CANADIAN LEGAL NEWS LEGALFEEDS.CA FEEDS LEGAL POWERED BY Untitled-1 1 2016-03-23 12:04 PM

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