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Info Source Bulletin Number 27

Joan Van Den Bergh v. National Research Council

Indexed as: Van Den Bergh v. Canada (National Research Council)

File No.:	T-121-02
References:	2003 FC 1116; [2003] F.C.J. No. 1407 (QL)
Date of decision:	September 29, 2003
Before:	O'Reilly J.
Sections of ATIA / PA:	*Ss. 3(j) and (l), 8(2)(m)(i) Privacy Ac* (PA); s. 19(1), (2)(a) and (c) Access to Information Act (ATIA)**

Abstract

Names of recipients of performance bonuses falling within the broad definition of "personal information" in the Privacy Act
However, para. 3(l) Privacy Act excluding from definition names of recipients of discretionary performance bonuses as, in this case, there was not necessarily a link between individual performance ratings and attribution of bonus
The mere assertion of a lack of public interest in subpara. 8(2)(m)(i) of the Privacy Act falls far short of justification by appropriate reasons

Issues

Can the names of persons who receive performance bonuses be disclosed on the basis of an exception in the Privacy Act?
Can the head of the National Research Council (NRC) disclose the names under the Access to Information Act?

Facts

In 1999, NRC began awarding performance bonuses to its hardest-working and most talented employees. The applicant, a Senior Labour Relations Officer with the Research Council Employees' Association (the union representing administrative, secretarial, and technical staff at NRC) requested in 2000 that NRC provide the names of all employees who had been awarded performance bonuses that year. The president of NRC refused on the grounds that the information requested was personal information protected under the Privacy Act.

The applicant complained to the Information Commissioner on the basis that the information sought fell under the exception in para. 3(l) of the Privacy Act and was thus releasable. NRC released the names of individuals who had received performance bonuses for being part of a team or group, but withheld those awarded on the basis of individual efforts because this would disclose their personal performance ratings.

The applicant sought judicial review of NRC's refusal to release the other names. The Information Commissioner agreed with the position taken by the respondent.

Decision

The application was allowed.

Reasons

Issue 1

The Access to Information Act allows individuals access to government records, but prohibits disclosure of "personal information" (subs. 19(1)), defined generally in the Privacy Act as "information about an identifiable individual that is recorded in any form" (s. 3). Clearly, information about a person's job performance is personal information and, as such, is generally confidential.

However, the information sought here is not very specific. Further, the general criteria developed by NRC for granting performance bonuses were altered or supplemented by individual branches. Various performance levels were used, and in some cases individuals were eligible without achieving any particular performance rating so long as they satisfied other criteria instead. Branch managers established and published the guidelines that applied to their respective employees. Accordingly, if NRC were to identify the persons who achieved bonuses, one could merely deduce that, in certain branches, the named individuals had achieved performance ratings at the upper end of the spectrum and, in others, that they must have made some kind of special contribution to their workplace. Nevertheless, the general information that the applicant requested from NRC comes within the broad definition of "personal information" in the Privacy Act.

However, the Privacy Act declares that information relating to "any discretionary benefit of a financial nature...including the name of the individual and the exact nature of the benefit" is not "personal information"(para. 3(l)). Clearly, the employees who received bonuses from NRC obtained a financial benefit. The only question is whether that benefit was "discretionary."

Here, the entire bonus program was discretionary. NRC had no obligation to establish it. Senior managers evaluated their employees' contributions to the workplace and assigned performance ratings accordingly. Where other factors played a role, senior managers had to weigh them. In turn, they determined the amount given to each recipient. Everything about the program was discretionary.

Paragraph 3(j) does not preclude the disclosure of the information here. The Supreme Court of Canada has held that personal information about public employees that is not specifically mentioned in para. 3(j), including performance appraisals, cannot be disclosed: see Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8. Similarly, because para. 3(j) refers specifically to the "salary range" of a public employee, the parallel exception for discretionary financial benefits in para. 3(l) does not permit disclosure of a person's specific salary or daily fee: see Rubin v. Canada (Clerk of the Privy Council) (1993), 62 F.T.R. 287 (F.C.T.D.). Still, neither of these cases suggests that the information the applicant seeks cannot be disclosed. According to the RCMP case, the personal performance evaluations of public employees should remain confidential, even though other details about their employment can be disclosed. However, NRC would not be revealing the performance evaluations simply by naming those who received bonuses.

Further, there is no tension here between para. 3(j) and para. 3(l) as there was in Rubin, supra. There, one provision specifically permitted disclosure of a public employee's salary range, while the other dealt generally with financial benefits. The Court simply concluded that the specific provision should prevail over the general one. Here, the applicant asks NRC to disclose the names of employees who received a bonus—not their salary, nor even the amount of the bonus. There is no tension between the two exceptions at issue here, and no basis for concluding that para. 3(l) cannot apply to public employees.

Therefore, the information sought by the applicant is not "personal information" according to the Privacy Act for the purposes of s. 19 of the Access to Information Act.

Issue 2

(This question was not necessary to the disposition of the case, but was nevertheless addressed because it was argued before the Trial Judge.)

The head of NRC had a discretion whether to release the names, and his decision is entitled to deference: Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.

Under the ATIA, the head of a government institution May disclose personal information if the "individual to whom it relates consents" (para. 19(2)(a)). When NRC announced its program, it informed employees that the "names of performance bonus recipients may be made public by NRC, but other information will be kept private." In due course, bonus recipients were asked if they consented to having their names made public. Many said yes. The NRC president decided that the consents were not clear. However, the Trial Judge found that the consent forms used by each of the branches (they differed from branch to branch) were clear enough to constitute consent for the purpose of para. 19(2)(a), particularly when NRC had already informed its employees that the names might be made public.

The head of a government institution may also disclose personal information where "the public interest in disclosure clearly outweighs any invasion of privacy that could result" (ATIA, para. 19(2)(c); Privacy Act, subpara. 8(2)(m)(i)). According to the Information Commissioner, NRC duly weighed the public interest and the privacy of its employees and concluded that the public interest override was not justified in this case. However, the mere assertion of the result falls far short of justification by appropriate means: Bland v. National Capital Commission, [1991] 3 F.C. 325 (T.D.) at 341 per Muldoon J. Given that the information sought by the applicant here was of a general nature and the purpose for which she was seeking it was to undertake a legitimate analysis of the expenditure of public funds, a serious weighing of the public and private interests at stake might well have justified disclosure.

Comments

This decision was not appealed.