Info Source Bulletin Number 30

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

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

File Nos.:	A-165-05, A-304-05
Reference:	2006 FCA 157
Date of decision:	May 1, 2006
Before:	Richards C.J., Desjardins and Evans JJ.A.
Sections of ATIA / PA:	Richards C.J., Desjardins and Evans JJ.A.
Other statutes:	Civil Air Navigation Services Commercialization Act, S.C. 1996, c. 20, s. 2; Canadian Transportation Accident Investigation and Safety Board Act, S.C. 1989, c. 3, ss. 2, 7, 28, 29(1)(a), 29(6); Radiocommunication Regulations, SOR/96-484, s. 6

Abstract

• Recordings and transcripts of air traffic control communications between air crew and air traffic controllers not "personal information" within meaning of s. 19(1) ATIA and s. 3 PA
• Air traffic control communications not falling within s. 20(1)(b) ATIA exemption

Issues

(1)   Are the ATC communications "personal information" so as to be exempt from disclosure under subs. 19(1) ATIA?

(2)   In the alternative, whether the disclosure of ATC communications is prohibited under para. 20(1)(b) ATIA?

Facts

This is an appeal from the decision of the Federal Court ([2006] 1 F.C.R. 605, 2005 FC 384, Snider J.) which dismissed applications for judicial review brought by the Information Commissioner pursuant to para. 42(1)(a) ATIA. The applications for judicial review relate to four refusals by the Canadian Transportation Accident Investigation and Safety Board (the Board) to disclose the recordings and transcripts of air traffic control communications (ATC communications) recorded by Nav Canada and under the control of the Board on the ground that they were exempt in their entirety under s.19 ATIA. The records at issue contain communications relating to four air occurrences.

Snider J. held that the ATC communications were "about" an individual. While recognizing that the content of the ATC communications was limited to the safety and navigation of the aircraft, the general operation of the aircraft and the exchange of messages on behalf of the public, Snider J. found that the purpose of the ATC communications was "to assess the manner in which the air traffic controllers and the aircraft personnel chose to perform the tasks assigned to them". Snider J. further held that the communications were about an "identifiable" individual since listening to the ATC tapes would allow identification of the aircraft, the location and operating initials of the specific controller. In addition, the voices of the individuals involved could be heard and identified. She determined that the information should not be disclosed because it was not "publicly available", that paras. 8(2)(a) and (b) of the PA were not applicable, and that the Board had properly exercised its discretion under subpara. 8(2)(m)(i) PA when it refused to disclose the records sought.

Decision

The appeal was allowed.

Reasons

Issue 1

The FCA held that the ATC communications did not constitute "personal information" within the meaning of the opening words of the definition of personal information in s. 3 PA.^[8]

In coming to that conclusion, the Court held that "personal information" must be understood as equivalent to information falling within an individual's right to privacy. While a privacy-based interpretation of the definition of "personal information" does not provide a definite resolution to questions concerning the precise scope of "personal information", the Court was of the view that such an interpretation of the definition of "personal information" captured the essence of the definition and was sufficient to dispose of the appeal at bar. The Court thus examined the concept of "privacy", stating that it "connotes concepts of intimacy, identity, dignity and integrity of the individual".

The FCA agreed with Snider J. that the content of the communications was limited to the safety and navigation of aircraft, the general operation of the aircraft and the exchange of messages on behalf of the public. The ATC communications contain information about the status of the aircraft, weather conditions, matters associated with air traffic controls and the utterances of the pilots and controllers. However, the FCA held that this information was not "about" an individual since that information did "not match the concept of 'privacy' and the values that concept is meant to protect". While the information may have the effect of leading to the identification of a person or may assist in determining how he or she has performed his/her task in a given situation, it did not qualify as "personal information". It was information of a professional and non-personal nature, transmitted by an individual in job-related circumstances. Moreover, the possibility that the information may be used, in certain circumstances, as a basis for an evaluation of their authors' performance, could not transform the communications into "personal information" when the information contained therein has no personal content.

Issue 2

For para. 20(1)(b) ATIA to apply, the information must

• be financial, commercial, scientific or technical;
• be confidential
• be supplied to a government institution by a third party, and
• have been treated consistently in a confidential manner by the third party.

Information collected during an air flight is not "commercial" as that word is commonly understood. Neither is it correct to characterize the entire record collected during an air navigation flight as being "technical" information when only a specific part might be.

With respect to the second requirement, the Court held that Nav Canada failed to provide sufficient actual direct evidence of the confidential nature of the information at issue. First, Nav Canada's evidence fails to elaborate, in relation to the information actually contained within the records at issue, as to how or why the information is objectively confidential. The fact that information may have been kept confidential in the past is at most only a factor to be considered in determining whether the information is confidential for the purposes of para. 20(1)(b). Second, the confidentiality provisions of the collective agreements between Nav Canada and the unions are not determinative of the status of the information for the purposes of the ATIA: private parties cannot contract out of the ATIA through such agreements. At most, such agreements may be taken into account to support other objective evidence of confidentiality. Third, Nav Canada has provided no supporting explanation as to how and why the maintenance of confidentiality serves the public interest. A bald assertion in this regard is insufficient.

Since the first two requirements of para. 20)1(b) have not been met, the Court was of the view that it did not need to consider the other two requirements.

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