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Info Source Bulletin Number 29

Information Commissioner of Canada v. Executive Director of the Canadian Transportation Accident Investigation and Safety Board and NAV Canada and Attorney General of Canada

Indexed as: Canada (Information Commissioner) v. Canadian Transportation Accident Investigation and Safety Board)

File No.:	T-465-01; T-650-02; T-888-02; T-889-02
Reference:	2005 FC 384
Date of decision:	March 18, 2005
Before:	Snider J.
Sections of ATIA / PA:	*Ss. 19, 20(1), 25, 42(1)(a) Access to Information Act* (ATIA); ss. 3, 8(2)(a), (b) and (m)(i) Privacy Act (PA)**
Other statutes:	S. 9(2) Radiocommunications Act; ss. 2, 7 Canadian Transportation Accident Investigation and Safety Board Act; s. 35(1) Interpretation Act; ss. 183, 184(1) Criminal Code

Abstract

Air traffic control communications can be personal information given their use in accident investigations to assess job performance
Definition of "personal information" in s. 3 PA does not include a reasonable expectation of privacy requirement
For information to be in the public domain, it must be available on an ongoing basis for use by the "public"
Reasonable exercise of discretion in refusing to release publicly available personal information
Neither para. 8(2)(a) nor para. 8(2)(b) obligates the government institution to disclose personal information to the public

Issues

Are ATC communications "personal information" as defined in s. 3 PA and thus exempt from disclosure pursuant to subs. 19(1) ATIA?
Did the TSB err in determining that disclosure of the ATC communications was not warranted by para. 19(2)(b) ATIA
Does subs. 20(1) ATIA prohibit the disclosure of the ATC communications?
Can the personal information in the ATC communications reasonably be severed from the remaining information pursuant to s. 25 ATIA?
Does subs. 9(2) of the Radiocommunications Act infringe s. 2(b) of the Charter which guarantees freedom of expression and, if so, is the infringement justified under s. 1 of the Charter?

Facts

In four applications, the Information Commissioner sought judicial review of a refusal by the Executive Director of the Canadian Transportation Accident Investigation and Safety Board ("the TSB") to disclose tapes and transcripts of conversations between air traffic controllers ("ATC") and aircraft personnel (the "ATC communications"). The applications arose as a result of four separate airplane collisions or crashes: the Clarenville Occurrence; the Penticton Occurrence; the Fredericton Occurrence; and the St. John's Occurrence. The TSB had refused disclosure in all four cases on the grounds that the ATC communications were personal information within s. 3 of the PA and thus exemptible from disclosure under subs. 19(1) of the ATIA. The TSB also concluded that disclosure under subs. 19(2) ATIA was not warranted in any of the cases

Decision

The applications were dismissed.

Reasons

Issue 1 – Are ATC communications "personal information" as defined in s. 3 PA and thus exempt from disclosure pursuant to subs. 19(1) ATIA?

The fact that the ATC communications were a record of transactions and contained factual information did not preclude them from being personal information or information about the individuals. To establish the nature of the communications, the Court looked to the purpose for which they were made and used. Here, the sole purpose for the existence of the ATC communications is to carry out an evaluation of the performance of the parties to those communications in the event that something goes wrong. Thus, the Court concluded that the ATC communications were "about" the individuals involved.

ATC communications only come to the attention of the TSB when there has been an unfortunate event. When an airplane crash or near miss occurs, significant interest by the press and the public will almost certainly follow. It is simply unrealistic to expect that pilots or, in some cases, air traffic controllers will not be identified as being connected with an accident. In addition, while the practice of air traffic controllers is not to refer to persons by name, listening to the ATC tapes would allow identification of the aircraft, the location and operating initials of the specific controller. Furthermore, the voices of the individual controller and pilot may be heard and identified. Thus, the Court was persuaded that the individuals involved in the ATC communications were identifiable, perhaps not with 100% accuracy but sufficient to meet the requirements of s. 3 PA.

The Court rejected the Information Commissioner's argument that there was no reasonable expectation of privacy in the ATC communications. First, the definition of "personal information" in s. 3 PA does not include the requirement that the parties hold a reasonable expectation of privacy. The question of whether someone holds a reasonable expectation of privacy may well enter into a subsequent analysis of whether, in spite of information being personal, it should be disclosed pursuant to subs. 19(2) ATIA. Even if it were a requirement, the Court held that there would be a reasonable expectation of privacy here. The parties to the ATC communications would not expect strangers to have access to the ATC communications in the manner sought by the Information Commissioner. Both the controllers and the pilots would know and expect that any mishap would be investigated, that the ATC communications would be carefully examined as part of that investigation and that the results of an investigation could make reference to (or even include) the ATC communications. However, this is a far cry from an admission that there is no expectation of confidentiality.

The ATC communications do not lose their character as personal communications merely because there is a legal obligation for the conversations to be recorded or for the tapes to be provided to the TSB if requested. The controllers have every right to expect that the use by the TSB of the ATC communications will be restricted to the purposes for which they were obtained. The information was not obtained by the TSB for the purposes of distributing it to the public at large; the TSB is not a publishing house for ATC communications. Even if the Court accepted that third parties may lawfully listen to the ATC conversations (an assumption with which the Court had considerable difficulty), further use or disclosure of the ATC communications would be contrary to subs. 9(2) Radiocommunications Act. This reinforces the expectation that the conversations will be kept confidential.

Thus, the Court was satisfied that the TSB was correct in concluding that the ATC communications were personal information within the meaning of s. 3 PA.

Issue 2 – Did the TSB err in determining that disclosure of the ATC communications was not warranted by para. 19(2)(b) ATIA?

To ascertain whether para. 19(2)(b) would operate to authorize the TSB to release the information, the Court must determine whether the ATC communications were "publicly available".

Even if the ATC communications in this case had been intercepted, a one-time listening by one or more individuals does not bring the information into the public domain. For information to be in the public domain, it must be available on an ongoing basis for use by the "public". Information that is listened to once is not, without evidence of further and ongoing availability, in the public domain or publicly available.

Next, the Court noted the use of the present tense in subs. 19(2) ATIA. That is, the provision allows the head of a government institution to disclose the information if it "is" publicly available. The ATC communications, even if they were "publicly available" at the time they were made, were not now available for review or in the public domain. This was true of all of the ATC communications except those related to the Clarenville Occurrence.

With respect to the Clarenville Occurrence, the ATC audio recording and transcript were disclosed twice by the TSB upon receipt of ATIA requests. The request that was the subject of the application before the Court was the third request for the ATC communications. As a result of the two disclosures (which were to journalists), dissemination of the information in the tapes and transcripts had been widespread. While, at the time of the Court hearing, neither journalist had played the entire contents of the tape or printed the complete transcripts, it was possible that they still retained copies and could release them at any time. It was difficult, therefore, to conclude that the Clarenville ATC communications were not publicly available. Thus, the TSB had authority to release the ATC communications upon request.

The Court then considered whether the TSB was required to exercise the authority to release the ATC communications. The Court noted the decision of Richard J. in Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), [1997] 1 F.C. 164 (T.D.) at paras. 43-44 wherein he had held that paras. 19(2)(a) and (b) were directive and not discretionary. The Court stated that, while Justice Richard's comments were sensible and, at first blush, appeared applicable to the instant case, to apply them in the instant case would not be a just result in the situation before the court. The earlier releases of the Clarenville ATC communications were made without any consideration of whether they contained personal information or whether they should be disclosed. Indeed, the subsequent analysis and conclusion by the TSB of these questions was that this information was personal information that should not be released. This was a situation in which the TSB could reasonably exercise the discretion given it by inclusion of the word "may" in subs. 19(2) and refuse to disclose the tapes and transcripts again. While it might well be that the refusal to disclose would be of no practical effect if the journalists themselves decided to release the tapes and transcripts, the court was not prepared in the circumstances to order the TSB to do so.

Further, in response to the Information Commissioner's suggestion that the ATC communications in the Penticton Occurrence had been before the B.C. Supreme Court in Sabourin Estate v. Watterodt Estate, 2004 BCSC 243 in considering issues of liability relating to the incident, as evidenced by the appearance of excerpts from the transcripts in the judgment, the Court held that it would be regrettable if otherwise private information subject to non-disclosure obligations became "publicly available" and subject to mandatory disclosure merely because it had been referenced in a civil law suit.

With respect to disclosure under para. 19(2)(c), the Court first rejected the Information Commissioner's argument that either para. 8(2)(a) or (b) PA obligated the TSB to disclose the information since, as argued by the Commissioner, the TSB may disclose the information during the course of its investigation or in its report on any occurrence. The Commissioner pointed to earlier practices supporting this. The Court rejected the contention that a statutory provision giving a government institution authority to disclose information for the purposes of its enabling legislation obligates the institution to release the information to the public at large. The words of paras. 8(2)(a) and (b) carefully and specifically define the boundaries of any disclosure. Use of the ATC communications by the TSB and, if necessary, reference to them in the TSB reports was disclosure for the purpose for which they were obtained by the TSB in the first place; further disclosure would not be for such purposes. The Court also rejected the argument that an apparent past policy to disclose the ATC communications meant that such a disclosure was for a consistent use.

Finally, with respect to disclosure under subpara. 8(2)(m)(i), the Court concluded that the TSB was correct in determining that the ATC communications came within the description of materials that were subject to withholding. With respect to the TSB's exercise of discretion not to disclose, the Court noted that La Forest J. in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 109, had characterized the statutory language as setting out a very broad discretion. However, this did not mean that the decision was free from judicial oversight. The Court should only intervene where (a) the discretion was not exercised in good faith; (b) the discretion was not exercised in accordance with the principles of natural justice; (c) reliance was placed upon considerations irrelevant or extraneous to the statutory purpose. The Information Commissioner challenged the decision on the third ground. The Court found that the TSB took into account a wide range of factors, none of which could be said to be irrelevant or extraneous to the statutory purpose. For example, the TSB was aware of and considered the availability of the information to persons listening with scanners. The TSB was aware of and considered the practices in other jurisdictions. The TSB took into account that it could, if the need arose, disclose all of the ATC communications in the context of an investigation. In effect, the Information Commissioner was asking the Court to re-weigh the evidence before the TSB. The court declined to do so, seeing no need to intervene in the decision of the TSB to refuse to exercise his discretion under para. 19(2)(c) ATIA.

Issue 3 – Does subs. 20(1) ATIA prohibit the disclosure of the ATC communications

The Court declined to answer this question, given that it found that the TSB was correct in its determination that the ATC communications were personal information and that there was no error in the exercise of discretion under subs. 19(2).

Issue 4 – Can the personal information in the ATC communications reasonably be severed from the remaining information pursuant to s. 25 ATIA?

As the Court found that the ATC communications were personal information, there was nothing that could be severed and no need to address this issue.

Issue 5 – Does subs. 9(2) of the Radiocommunications Act infringe s. 2(b) of the Charter which guarantees freedom of expression and, if so, is the infringement justified under s. 1 of the Charter?

The Supreme Court of Canada has cautioned that Charter issues should not be decided where it is not necessary to do so, and has stressed that Charter issues are to be decided on a proper evidentiary record. The present judicial reviews were based solely on an attack on the refusal of the TSB to disclose the ATC communications, which decision did not require the TSB to apply the statutory provision in question. Further, by rendering unconstitutional subs. 9(2) Radiocommunications Act, the Court expressed concern that it could unintentionally affect related provisions in the Interpretation Act and the Criminal Code. The Court did not have an adequate record before it on which to deal with these broader issues. The Court was of the view that the constitutionality of subs. 9(2) Radiocommunications Act should only be assessed by it when the issue is directly and completely before it

Comments

The decision is under appeal.