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Info Source Bulletin Number 31A - Court Case Summaries
Mike Gordon v. Minister of Health and Privacy Commissioner (Intervener)
2008 FC 258
Federal Court (Trial Division)
Date of Decision: February 27, 2008
Sections(s): ATIA: subs. 19(1)(2)
PA: sections 2, 3
Origin
Application for judicial review of the Minister of Health's decision to refuse to release under the ATIA the field "province" in the CADRIS database.
Issues
- Does the release of the field "province" in CADRIS constitute the release of personal information? More specifically, does disclosing the field "province" allow for the identification of an individual, thus rendering other information, personal information as defined in section 3 PA?
- If so, was the discretion under subs. 19(2) re para. 8(2)(m) PA, which was exercised against release, validly exercised?
Facts
Mike Gordon, reporter for the CBC, made an ATIA request at Health Canada for "a copy of the database of adverse drug reactions" (called CADRIS). CADRIS is a database of information collected by Health Canada relating to domestic suspected adverse reactions to health products, including pharmaceuticals, biologics, natural health products and radial pharmaceuticals marketed in Canada.
Information regarding such reactions is collected on a voluntary basis through reports provided by health professionals and consumers (about 38%) and on a mandatory basis from drug manufacturers (about 62%). At or about July 5th, 2006, CADRIS has about 125 data fields which contain information derived from over 180,000 suspected adverse reaction reports received since 1965. All fields had been released under the ATIA, except direct identifiers and the field of "province". "Province" refers to the province from which the report in question was received, thus, not necessarily indicating the province of residence of the individual who suffered the adverse drug reaction.
Decision
Application dismissed. In other words, the field province will not be released.
Reasons
- Does the disclosure of the field "province" requested constitute the release of personal information? More
specifically, does disclosing the field "province" allow for the identification of an individual, thus rendering other
information, personal information as defined in section 3 PA?
- "Personal information" is defined in section 3 PA as "…information about an identifiable individual that is recorded in any form…" Much turns on the interpretation of the word "about" in this definition.
- The field of "province" does not necessarily identify the province of residence of the individual who suffered an adverse drug reaction. That field discloses the location by province of the person filing the ADR report. The issue thus becomes whether the substance of the field of "province" information about an identifiable individual?
- In Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board),
Madame Justice Desjardins, for the Court, wrote:
"These two words, "about" and "concernant", shed little light on the precise nature of the information which relates to the individual, except to say that information recorded in any form is relevant if it is "about" an individual and if it permits or leads to the possible identification of the individual. There is judicial authority holding that an "identifiable" individual is considered to be someone whom it is reasonable to expect can be identified from the information in issue when combined with information from sources otherwise available..."
- Thus, information recorded in any form is information "about" a particular individual if it "permits" or "leads" to the possible identification of the individual, whether alone or when combined with information from sources "otherwise available" including sources publicly available.
- Counsel for the Privacy Commissioner, the Intervener, urged the adoption of the following test in determining when information is about an identifiable individual: "Information will be about an identifiable individual where there is a serious possibility that an individual could be identified through the use of that information, alone or in combination with other available information."
- Three affidavits were filed by Health Canada demonstrating the level of risk of identification of the individuals having suffered an ADR. The Court stated that it was satisfied that Health Canada, on the evidence before the Court, was required to refuse to disclose the content of the field of "province" under subs. 19(1) ATIA because the release of this field would significantly increase the risk of identifying the individuals who suffered from an ADR because of the possibility of data-matching the province field, the other fields already released from CADRIS and publicly available information (e.g., obituaries for given dates in a given city in a given province). The Court concluded that the "province" field, in all of the circumstances of this matter, constitutes "personal information" as defined in section 3 PA.
- If so, was the discretion under subs. 19(2) re para. 8(2)(m) PA, which was
exercised against release, validly exercised?
- The Court said that Mr. Gordon put forward no evidence contrary to that of Health Canada and in particular, no evidence how public health and safety would be enhanced if the field of province were disclosed, without at the same time impinging on privacy rights.
- The Court said, quoting Justice La Forest in the Dagg decision:
"There is no evidence that the Minister failed to examine the evidence properly. It is apparent that he considered the appellant's request for public interest waiver in the light of the objects of the legislation and came to a determination that the public interest did not "clearly outweigh" the violation of privacy that could result from disclosure. This was a conclusion that he was entitled to make. For this Court to overturn this decision would amount to a substitution of its view of the matter for his. Such a result would do considerable violence to the purpose of the legislation and would amount to an unjustified usurpation of the Minister's statutory role."
