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InfoSource Bulletin 2003 - Privacy Act and Access to Information Act

Information Commissioner of Canada v. Commissioner of the Royal Canadian Mounted Police and Privacy Commissioner of Canada
Indexed as: Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police)

File No.:	28601
References:	2003 SCC 8; [2003] S.C.J. No. 7 (QL) (S.C.C.)
Date of decision:	March 6, 2003
Before:	McLachlin, C.J., Gonthier, Iacobucci,Major,Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
Section(s) of ATIA/PA:	Ss. 2(1), 19(1), 41, 42, 49 Access to Information Act (ATIA); s. 3(b), (j) Privacy Act (PA)

Abstract

Request for information about RCMP members refused under s. 19 ATIA
Standard of review
Definition of "personal information"
Meaning of "employment history" in para. 3(b) PA
Scope of para. 3(j) PA

Issues

What is the standard of review applicable to the decision of the RCMP Commissioner?

Does the information requested constitute "personal information" as defined in s. 3 of the Privacy Act?

If so, does the information fall within the exception set out in para. 3(j) of the Privacy Act?

Facts

The RCMP received a request under the ATIA for information concerning some of its members. The requester sought a "list of the communities of postings" of four named members, including the dates, copies of all public complaints filed against each of them and the name and address of the member or former member who served in a specified detachment. The RCMP initially exempted all of the information from disclosure under subs. 19(1) of the ATIA, on the grounds that the records contained "personal information" pursuant to s. 3 of the Privacy Act (PA). A complaint was filed and, in the course of the Information Commissioner's investigation, the RCMP decided to release information concerning the current postings and positions of the four serving RCMP members and the last posting and position of the retired RCMP member. However, the RCMP maintained its position that the remaining information was "personal information" exempt from disclosure.

The Information Commissioner found that the information relating to the previous RCMP postings of the four officers, as well as certain other job-related information contained in the relevant records did not constitute "personal information". He thus recommended that the RCMP disclose (1) the list of historical postings of the RCMP members, their status and date; (2) the list of ranks, and the date the members achieved those ranks; (3) their years of service and (4) their anniversary date of service. The RCMP refused. The Information Commissioner thereupon applied for judicial review of the RCMP's decision.

The Trial Division of the Federal Court ((1999), 179 F.T.R. 75) held that the general nature of para. 3(j) PA was not retrospective. The Court was of the view that little would be left of the protection afforded to "employment history" under para. 3(b) were para. 3(j) to be given a retrospective bearing. Cullen J. therefore concluded that subparas. 3(j)(i) to (iii) applied only to the current positions of the RCMP officers or to the position last held by the retired officer; the remaining information fell witnin para. 3(b)⁶. Cullen J. also found that the RCMP failed to consider subpara. 8(2)(m)(i) PA.

The Federal Court of Appeal ([2000] 3 F.C. 70) held that neither the purpose nor the wording of para. 3(j) or subpara. 3(j)(i) require an interpretation that would restrict their application to current positions. Therefore, para. 3(j) authorizes the release of information about an individual's position, whether current or past. However, the Court emphasized that a request for a named individual's position, especially in respect of his past positions, cannot constitute a fishing expedition; such a request had to be specific as to time, scope and place. The Court therefore concluded that the request at issue, when assessed in its totality and in relation to its primary focus, was for specific individuals' employment histories, and not information about a current or a specific past position. Thus, the Court dismissed the Information Commissioner's appeal.

Decision

The appeal is allowed.

Reasons

Issue 1-Standard of review-Correctness applicable to the determination of whether the information falls within the definition
The standard of review is to be determined applying the functional and pragmatic approach which involves the consideration of four factors. (1) Presence or absence of a privative clause or statutory right of appeal: the absence of a privative clause in the ATIA, in conjunction with the explicit provisions conferring on the Federal Court the power to review refusals (ss. 41 and 42), and the importance ascribed by the ATIA to independent review (subs. 2(1)), are indicative of Parliament's intention that the court have broad review powers. (2) Expertise of the tribunal in relation to that of the reviewing judge: the RCMP Commissioner has no expertise in the interpretation of the ATIA and the PA, which further invites broad powers of review. (3) Purpose of the legislation: a less deferential standard of review advances the objectives stated in subs. 2(1) of the ATIA, i.e. that decisions on the disclosure of government information be reviewed independently of government and that exceptions to the right of access be limited and specific. (4) Nature of the issue: the nature of the issue-the interpretation of para. 3(j)-is a question of law that does not turn on any finding of fact.

In light of those factors, the Court finds that the decision of the RCMP Commissioner ought to be reviewed on a standard of correctness.

Issue 2-The records sought contained "personal information"
By defining "personal information" as "information about an identifiable individual that is recorded in any form including [...]", Parliament defined this concept broadly. Therefore, there was no doubt that the information sought contained "personal information" within the meaning of s. 3 of the PA.

Generally, once it is determined that the information requested falls within the opening words of the definition of "personal information", it is not necessary to determine whether it is also encompassed by one of the specific non-exhaustive examples set out in paras. 3(a) to (i). However, since the dispute at bar concerned the relationship between "employment history" (para. 3(b)) and the exception to the definition of "personal information" in para. 3(j), the Court proceeded to determine the meaning of "employment history".

There is no reason to limit the scope of the expression "employment history" to particular aspects of employment or to modify its usual meaning. Parliament referred broadly to "employment history". There is no evidence of an intent to limit its meaning. Furthermore, the use of the words "relating to" in para. 3(b) suggests that it has a broad scope. In the absence of clear legislative intent to the contrary, the ordinary meaning of the legislative provision must prevail. The ordinary meaning of "employment history" includes not only the list of positions previously held, places of employment, tasks performed, but also any personal evaluations an employee might have received during his career. The meaning is consistent with the objective of the Privacy Act which is the protection of information relating to an individual identity. Parliament set out s. 3 of the PA in very broad language and it is not for the Court to limit the scope of that section. In the case at bar, there is no doubt that the requested information relates to "employment history" within the meaning of para. 3(b).

Issue 3-Exclusion from the definition of "personal information"
Rulings in courts below
The SCC rejected Cullen J.'s finding that paras. 3(j)(i) to (iii) were not retrospective.

First, the very wording of para. 3(j) shows that the provision extends to past postings ("was an officer or employee"). In addition, the use of the expression "including" in the introductory portion of para. 3(j) is a clear expression of Parliament's intention that the introductory phrase keep its wide and general meaning by providing only non-exhaustive examples. The purpose of para. 3(j) is to ensure that the state and its agents are held accountable to the general public. Thus, the fact that a public servant has been promoted or has retired should not affect the extent to which she or he is held accountable for past conduct. Finally, the use of the word "position" in the singular in para. 3(j) should be read as applicable to multiple positions. Information that was available at the time the individual held a certain position or exercised certain functions remains available subsequent to that individual's promotion or retirement.

The Court of Appeal's approach that a request for access should not constitute a "fishing expedition" about all the positions held by an individual fails to recognize that it is the nature of the information that is relevant-not the purpose or nature of the request. The right of access in subs. 4(1) ATIA is not qualified. The Act does not confer on heads of government institutions the power to take into account the identity of the requester nor the purpose of his/her request.

An interpretation of para. 3(j) that includes past positions without regard to the formulation of the request does not empty the definition of "employment history". First, para. 3(b) has a wider scope than para. 3(j), as it applies to every identifiable individual and not just individuals who are or were officers or employees of a government institution. Second, only information that relates to the position or functions of the federal employee or falling within one of the examples given will be excluded from the definition of "personal information". Thus, a considerable amount of information that qualifies as "employment history" remains inaccessible, such as the evaluations and performance reviews of a federal employee.

Applicable test for para. 3(j) PA
The Court explained the test set out by it in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403. First, it specified that Dagg does not stand for the proposition that objective or factual information that relates to the position or functions of the employee is to be provided to the public while subjective or evaluative information is to be protected under the PA. Given that "personal information" is defined as information "about an identifiable individual" and given that para. 3(j) is an exception to the manner in which "personal information" is treated, para. 3(j) must contemplate information about an individual. Attempting to distinguish between "information about the person" and "information about the position or functions" is therefore artificial and unhelpful. Rather, the majority in Dagg was of the view that the information at issue therein was to be disclosed because it regarded it as "information 'that relates to' the position or functions of the individual, and thus falls under the opening words of s. 3(j)" (Dagg, para. 8).

The Court held that (1) the list of historical postings of the RCMP members, their status and date; (2) the list of ranks, and the date the members achieved those ranks; (3) their years of service and (4) their anniversary date of service were all elements that related to the general characteristics associated with the position or functions of an RCMP member and, as such, fell within para. 3(j). Put another way, these aspects of employment shed light on the general attributes of the position and functions of an RCMP member. The information did not reveal anything about the members' competence or divulge any personal opinion given outside the course of employment.