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InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

Information Commissioner of Canada v. Minister of Citizenship and Immigration and Philip Pirie and the Privacy Commissioner of Canada
Indexed as: Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration)

File No.:	A-326-01
Reference:	[2002] F.C.J. No. 950 (QL) (F.C.A.)
Date of decision:	June 21, 2002
Before:	Décary, Noèl and Evans JJ.A.
Section(s) of ATIA / PA:	S. 19(1) Access to Information Act (ATIA); ss. 3(e), (g),(h), (i), (j), 12(2) Privacy Act (PA)

Abstract

Administrative review of workplace environment conducted by consultant
Respondent requesting access to interview notes
Names of persons interviewed personal information to both interviewees and respondent
Whose interest should prevail
Weighing of private interests and public interest in disclosure and non‑disclosure
Fairness and right to correction

Issues

Whether the names of individuals interviewed in the course of an administrative review, who expressed views or opinions about another individual, and portions of their interviews which would identify them, is "personal information" of those individuals or of the individual who was the subject-matter of the opinions?

Where "personal information" can be personal to more than one individual, which interest should prevail?

Facts

Allegations of discriminatory behaviour and harassment at CIC's Case Processing Centre (CPC) in Vegreville, Alberta, prompted CIC to request an independent consultant to conduct an administrative review of the corporate culture in the CPC. Interviews were conducted on a voluntary basis. Employees who participated were advised that the interviews would be confidential; managers who participated were not so advised. The notes from the interviews were to be maintained by the consultant and were not to be passed to CIC.

Mr. Pirie, then Director of the CPC at Vegreville, was provided by CIC with a copy of the consultant's report and, on the same day, was relieved of his duties.

Mr. Pirie subsequently sought access, under the ATIA, to the notes from the interviews conducted by the consultant. As a result of that request, the notes came into the possession of CIC. CIC denied access to the notes in part. Mr. Pirie complained to the Information Commissioner and further disclosure was made. In the end, the names of the persons interviewed, information regarding their position, and the views or opinions about Mr. Pirie when their disclosure would indirectly disclose the identity of the person who expressed them, were exempted from disclosure pursuant to s. 19 ATIA. This exemption applies to information covered by the definition of "personal information" in s. 3 of the Privacy Act (PA).³

The lower Court ([2001] 3 F.C. 384) held that para. 3(i) of the PA warranted the non-disclosure of the names and opinions of the interviewees. However, it held that para. 3(j) applied to the names and opinions of those interviewees who had responsibility to prevent harassment in the workplace. As a result, it ordered the disclosure of "the identities of all managers with responsibility to prevent harassment in the workplace or to administer a harassment policy who were interviewed together with any of their recorded opinions or views which have not already been disclosed to Mr. Pirie".

This is an appeal from that decision.

Decision

The appeal was allowed. The Minister of Citizenship and Immigration was ordered to disclose to Mr. Pirie the records or parts thereof that do not qualify for exemption under subs. 19(1) of the ATIA.

Reasons

Preliminary findings of the Court
Prior to addressing the first issue, the Court made the following preliminary observations. (1) Considerations about what Mr. Pirie intended to do with the information and the reasons that prompted his request for access were found irrelevant where the issue, as here, turns on an individual's right of access to information. (2) The severance of the names of the interviewees and any information that could identify them renders meaningless the right conferred on an individual under subs. 12(2) PA "to request correction of [his] personal information". (3) The promise of confidentiality made by CIC to some of the interviewees cannot override the obligation imposed by the ATIA to release the information, nor be opposed to Mr. Pirie should he be entitled to disclosure. (4) The chilling effect disclosure might have on possible future investigations has been consistently denied as a ground for refusing disclosure.

Issue 1-Definition of "personal information"
Given the expansive meaning attributed to "personal information" in Dagg v. Canada (Minister of Finance) ([1997] 2 S.C.R. 403), it is clear that the same information can be "personal" to more than one individual. La Forest J.'s statement in Dagg to the effect that if a government record is captured by the opening words of s. 3, "it does not matter that it does not fall within any of the specific examples" enumerated therein, cannot be interpreted as meaning that it does not matter that a government record is expressly or impliedly excluded by one of the specific examples. Parliament cannot be intended to have included in the general words what it has excluded in the examples given.

The Court first looked at para. 3(e) which makes it clear that personal opinions of an individual (an interviewee) are his "personal information" except when they are about another individual (Mr. Pirie) in which case para. 3(g) provides that they become the latter's personal information. The Court then concluded that an opinion presumes an opinion-holder. It follows that the name and identity of interviewees are as much the personal information of Mr. Pirie, pursuant to para. 3(g), as is the substance of the opinions or views expressed. Paragraph 3(h) resolves any doubt as to whether para. 3(e) includes the identity of the holder of the opinions or views in the words "personal opinions or views of the individual". Only when the views concern a proposal for a grant, an award or a prize is the identity of the holder excluded under para. 3(h). Had Parliament intended this "clarification" to apply to the whole of para. 3(e), it would have said so in the same way that it did in para. 3(h). Its absence confirms that the very notion of opinions and views of an individual contemplates the source of that opinion or view

The Court then examined the second branch of para. 3(i). According to the Court, it applies where the disclosure of the name itself would reveal information about the individual, but it does not apply to contextual information (as opposed to the name) that could reveal the identity of the interviewees. Where the name does not appear, the information does not fall under para. 3(i). While the Court entertained some doubt that the words "information about the individual" have the broad meaning that La Forest J. gave them in Dagg, in obiter (para. 85 of the Dagg decision), it nevertheless held that the name itself of an interviewee is personal information of the latter under para. 3(i) although this finding had no impact on its ultimate conclusion.

In the end, the Court found that the names of the interviewees were the personal information of both Mr. Pirie pursuant to para. 3(g) and of the interviewees themselves pursuant to para. 3(i). In order to decide if Mr. Pirie could have access to this information, the Court decided to determine who had the greater interest in the information: Mr. Pirie or the interviewees?

Issue 2-Balancing competing interests
The scheme of the PA requires that one interest must prevail over the other since a government institutions cannot, with respect to the same information, both disclose it with the consent of an individual and refuse to disclose it because of the lack of consent of another individual. The question of whose interest must prevail requires a balancing exercise that takes into account the private interests of the interviewees and Mr. Pirie as well as the public interest in disclosure and non-disclosure.

According to the Court, the interviewees' private interest in not revealing the fact that they participated in the inquiry and keeping their conversations with the investigator confidential is minimal. The fact that they participated in the inquiry has, in itself, little significance and, to the extent they can justify the views they expressed, they should not fear the consequences of the disclosure, although there may be some.

The Court rejected the argument that the chilling effect the disclosure might have on future investigations, coupled with the fact that promises of confidentiality made by CIC to some of the interviewees will not be given effect, justified the public interest in non-disclosure.

The Court found that the private interest of Mr. Pirie was significant. Implicit, if not explicit in the report and in the action taken by CIC as a result of its publication, is the fact that he bears some responsibility for the problems which were found to exist at the Centre. He must be given the opportunity to know what was said, and by whom, against him, if only to exercise his right under subs. 12(2) PA to clear his name in CIC's archives.

The public interest in the disclosure is to ensure fairness in the conduct of administrative inquiries. Whatever the rules of procedural propriety applicable in a given case, fairness will generally require that witnesses not be given a blank cheque and that persons against whom unfavourable views are expressed be given the opportunity to be informed of such views to challenge their accuracy and to correct them if need be.

The Court concluded that both the private interest of Mr. Pirie and the public interest mandated the disclosure of the name of the interviewees.