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Info Source Bulletin Number 31A - Court Case Summaries
Dagg v. Canada (Minister of Finance)
[1997] 2 S.C.R. 403
Supreme Court of Canada
Date of Decision: June 26, 1997
Sections(s): ATIA: sections 2, 19(2)
PA: sections 2, 3(i),(j), 8(2)(m)
Origin
Appeal from the Federal Court of Appeal decision
Issues
- Does the information in the government workplace logs constitute "personal information' within the meaning of section 3 of the Privacy Act?
- Did the Minister fail to exercise his discretion properly in refusing to disclose the requested information pursuant to para. 19(2)(c) ATIA and subpara. 8(2)(m)(i) PA?
- Does the ATIA have pre-eminence over the PA?
- What is the purpose of para. 3(j) PA and subpara. 3(j)(iii) PA?
Facts
Mr. Dagg filed a request with the Department of Finance for copies of logs with the names, identification numbers and signatures of employees entering and leaving the workplace on weekends. These logs were kept by security personnel for safety and security reasons but not for the purpose of verifying overtime claims. The appellant intended to present this information to the union anticipating that the union would find it helpful in the collective bargaining process and that the union would as a consequence be disposed to retain his services.
The Department of Finance disclosed the relevant logs but deleted the employees' names, identification numbers and signatures on the ground that this information constituted personal information and was thus exempted from disclosure.
Mr. Dagg unsuccessfully sought a review by the Minister of this decision and filed a complaint with the Information Commissioner, arguing that the deleted information should be disclosed by virtue of exceptions related to personal information in the Privacy Act.
Decision
The Supreme Court of Canada allowed the appeal of the lower court decision.
Reasons
- Does the information in the government workplace logs constitute "personal information' within the meaning
of section 3 of the Privacy Act?
The number of hours spent at the workplace is information that is "related to" the position or function of the individual in that it permits a general assessment to be made of the amount of work required for a particular employee's position or function. For the same reason, the requested information is related to "the responsibilities of the position held by the individual" and falls under the specific exception in subpara. 3(j)(iii) PA. The information provides a general indication of the extent of the responsibilities inherent in the position. There is neither a subjective aspect nor an element of evaluation contained in a record of an individual's presence at the workplace beyond normal working hours. Rather, that record disclosed information generic to the position itself. - Did the Minister fail to exercise his discretion properly in refusing to disclose the requested information
pursuant to para. 19(2)(c) ATIA and subpara. 8(2)(m)(i) PA?
- Subsection 19(2) ATIA provides that the head of a government institution may disclose personal information in certain circumstances. Generally speaking, the use of the word "may", especially when it is used in contradistinction to the word "shall",indicates that an administrative decision maker has the discretion, and not the duty, to exercise a statutory power. In the present case, any ambiguity regarding use of the word "may" is removed by the language of subpara. 8(2)(m)(i) PA. That provision, which is incorporated into para. 19(2)(c) ATIA, states that personal information may be disclosed where, in the opinion of the head of the institution, the public interest in disclosure clearly outweighs the invasion of privacy that could result. It is difficult to imagine statutory language that would set out a broader discretion discretion. Courts have repeatedly held that the use of such language indicates a discretionary power. And in a series of decisions, the Federal Court has specifically found that the power to disclose personal information in the public interest under subpara. 8(2)(m)(i) PA is discretionary.
- Although the head of a government institution, under subs. 19(2) ATIA has discretion to disclose personal information in certain circumstances, such a decision is not immune from judicial oversight merely because it is discretionary. Abuse of discretion may be alleged but where the discretion has been exercised in good faith, and, where required, in accordance with principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
- The Minister properly examined the evidence and carefully weighed the competing policy interests. He was entitled to make the conclusion that the public interest did not outweigh the privacy interest. For this Court to overturn this decision would not only amount to a substitution of its view of the matter for his view but also do considerable violence to the purpose of the legislation. The Minister's failure to give extensive, detailed reasons for his decision did not work any unfairness on Mr. Dagg.
- The head of a government institution, under section 48 ATIA, has the burden of establishing that he or she is "authorized to refuse" to disclose a requested record. The Minister satisfied this burden when he showed that the information in the sign-in logs constituted "personal information". Once that fact is established, the Minister's decision to refuse to disclose under s. 8(2)(m)(i) PA may only be reviewed on the basis that it constituted an abuse of discretion.
- The Minister did not have a "burden" to show that his decision was correct because that decision is not reviewable by the court on the correctness standard. The Minister weighed the conflict interests at stake. The fact that he stated that the appellant failed to demonstrate that the public interest should override the privacy rights of the employees named in the sign-in logs was therefore irrelevant.
- Does the ATIA have pre-eminence over the PA?
Justice Cory agreed with Justice La Forest's position that "Both statutes regulate the disclosure of personal information to third parties. Section 4(1) ATIA states that the right to government information is "subject to this Act". Subs. 19(1) ATIA prohibits the disclosure of a record that contains personal information "personal information" as defined in section 3 PA. Section 8 PA contains a parallel prohibition, forbidding the non-consensual release of personal information except in certain specified circumstances. Personal information is thus specifically exempted from the general rule of disclosure. Both statutes recognize that, in so far as it is encompassed by the definition "personal information" in section 3 PA, privacy is paramount over access…The ATIA expressly incorporates the definition of personal information from the PA. Consequently, the underlying purposes of both statutes must be given equal effect…In summary, it is clear that the ATIA and PA have equal status, and that courts must have regard to the purposes of both statutes in considering whether a government record constitutes "personal information". - What is the purpose of para. 3(j) PA and subpara. 3(j)(iii) PA?
- Justice Cory agreed with Justice La Forest's statement that the purpose of para. 3(j) and subpara. 3(j)(iii) PA is: "…to exempt only information attaching to positions and not that which relates to specific individuals. Information relating to the position is thus not "personal information", even though it may incidentally reveal something about named persons. Conversely, information relating primarily to individuals themselves or to the manner in which they choose to perform the tasks assigned to them is "personal information"."
- Justice Cory agreed with Justice La Forest that information relating to the position will consist of the kind of information disclosed in a job description, such as "the terms and conditions" associated with a particular position, including…qualifications, duties, responsibilities, hours of work and salary range".
