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InfoSource Bulletin 2003 - Privacy Act and Access to Information Act
Commissioner of Official Languages v. Lavigne
Indexed as: Lavigne v. Canada (Commissioner of Official Languages)
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File No.: |
28188 |
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References: |
2002 SCC 53; [2002] S.C.J. No. 55 (QL) |
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Date of decision: |
June 20, 2002 |
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Before: |
McLachlin C.J., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. |
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Section(s) of ATIA / PA: |
S. 22(1)(b) Privacy Act (PA) |
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Abstract
- Investigation by Commissioner of Official Languages
Para. 22(1)(b) PA applicable
"Injury to the conduct of lawful investigations" includes possibility of injury to future investigations if there is clear and direct connection between the disclosure of specific information and the injury that is alleged
Issues
Did the Federal Court Trial Division and Federal Court of Appeal err in concluding that Mr. Lavigne was entitled to all of his personal information requested under the Privacy Act? A secondary issue is whether a requester under the Privacy Act is entitled to information other than personal information?
Facts
Mr. Lavigne made a complaint to the Commissioner of Official Languages (COL) about his workplace language requirements. The complaint was made pursuant to the Official Languages Act and the COL began a formal investigation. As part of the investigation, the COL took notes of the interviews he conducted. Mr. Lavigne subsequently made a request under the Privacy Act for those notes and the COL refused to release them by relying on para. 22(1)(b) of the Privacy Act (reasonable expectation of injury to the enforcement of a law or the conduct of lawful investigations). Both the Federal Court Trial Division ((1980), 157 F.T.R. 15), and the Court of Appeal ((2000), 261 N.R. 19) ruled that the COL could not use the exemption to refuse the disclosure of the information requested on the ground that the disclosure would be injurious to the conduct of the investigation since the investigation was over.
Decision
The appeal was dismissed and the information was ordered released but not for the reasons rendered by the Courts below.
On the secondary issue, the Court confirmed that a person who makes a request under the Privacy Act is not entitled to information other than personal information.
Reasons
Given that one of the objectives of the Privacy Act is to provide individuals with access to personal information about themselves, the courts have generally interpreted the exemptions to the right of access narrowly. However, the Court concluded that there is nothing in para. 22(1)(b) that should be interpreted as restricting the scope of the word "investigation" to investigations that are underway or are about to commence, or limiting the general meaning of the word to specific investigations. In arriving at this conclusion, the Court held that the interpretation of the Privacy Act must be done consistently with the objectives of the Official Languages Act and the Court recognized that Parliament had expressly provided that investigations by the COL shall be conducted in private and that investigators shall not disclose information that comes to their knowledge in the performance of their duties and functions
However, the non-disclosure of personal information provided in para. 22(1)(b) is authorized only where disclosure "could reasonably be expected" to be injurious to the investigations. The Court held that this meant that "there must be a clear and direct connection between the disclosure of specific information and the injury that is alleged. The sole objective of non-disclosure must not be to facilitate the work of the body in question; there must be professional experience that justifies non-disclosure." While elaborating on this point, the Court said: "Confidentiality of personal information must only be protected where justified by the facts and its purpose must be to enhance compliance with the law. A refusal to ensure confidentiality may sometimes create difficulties for the investigators, but may also promote frankness and protect the integrity of the investigation process. The Commissioner of Official Languages has an obligation to be sensitive to the difference in situations, and he must exercise his discretion accordingly." Later in the judgement, the Court said that the COL argued "that the disclosure of the personal information would have an injurious effect on future investigations without proving this to be so in the circumstances of this case. The Commissioner's decision must be based on real grounds that are connected to the specific case in issue."
Because the COL's evidence tried to prove, generally, that if investigations were not confidential this could compromise their conduct, the Court held that there was no evidence that established specific circumstances from which it could reasonably be concluded that the disclosure could be expected to be injurious. In this case, the evidence did not provide a reasonable basis for concluding that disclosure of the notes of the interview could reasonably be expected to be injurious to the COL's future investigations.
