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Info Source Bulletin Number 31A - Court Case Summaries
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
2006 FCA 157
Federal Court of Appeal
Date of Decision: May 1, 2006
Sections(s): ATIA: sections 5, 19(1), 20(1)(b) and 24
PA: sections 2, 3
Origin
Appeal from the Federal Court (Trial Division) ruling that dismissed four applications for judicial review filed by the Information Commissioner
Issues
- Do the ATC communications contain "personal information" which are exempt under subs. 19(1) ATIA?
- If not, are the ATC communications exempt under subs. 20(1) ATIA?
Facts
The records at issue contain communications relating to four air occurrences which were subject to distinct investigations and public reports by the Safety Board. In each case, the requesters seek access to recordings and/or transcripts of ATC air traffic control communications recorded by NAV CANADA and now under the control of the Safety Board.
The Federal Court (TD) concluded that the requested information was "personal information" within the meaning of section 19 ATIA and section 3 PA. The FCTD 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, the Court concluded 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".
The FCTD also held that the communications were about an "identifiable" individual since listening 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. The FCTD determined that the information should not be disclosed because it was not "publicly available", that paragraphs 8(2)(a) and (b) 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 requested.
Decision
The Federal Court of Appeal overturned the FCTD decision refusing the release of the communications.
Reasons
- Do the ATC communications contain "personal information" which are exempt under subs. 19(1) ATIA?
- The FCA ruled that the ATC communications did not constitute "personal information" under section 3 PA. The FCA 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. In the FCA's view the concept of "privacy" "connotes concepts of intimacy, identity, dignity and integrity of the individual".
- The FCA agreed with the FC(TD) that the content of the communications was limited to the safety and navigation of
aircrafts, 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 aircrafts, 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.
- If not, are the ATC communications exempt under subs. 20(1)(b) ATIA?
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.
The FCA held that Nav Canada failed to provide sufficient actual direct evidence of the confidential nature of the information at issue, as required under para. 20(1)(b) ATIA.
First, Nav Canada's evidence fails to elaborate, in relation to the information actually contained in 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 under 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.
