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Info Source Bulletin Number 31A - Court Case Summaries
Lavigne v. Canada (Office of the Commissioner of Official Languages)
2002 SCC 53
Supreme Court of Canada
Date of Decision: June 20, 2002
Sections(s): Section 22(1)(b) of the Privacy Act
Origin
Appeal of a decision by the Federal Court of Appeal affirming the decision of the Federal Court (Trial Division)
Issues
- Whether, pursuant to s. 22(1)(b) PA, disclosure of the personal information requested by Mr. Lavigne could reasonably be expected to be injurious to the conduct of lawful investigations by the COL.
- Whether Mr. Lavigne is entitled under his PA request to information other than his personal information?
Facts
Mr. Lavigne, a federal public servant, filed complaints with the Commissioner of Official Languages (COL) alleging that his rights in respect of language of work, and employment and promotion opportunities had been violated. In conducting their investigation the investigators working for the Office of the Commissioner of Official Languages encountered problems because certain employees were reluctant to give information, fearing reprisals by the respondent. The investigators gave assurances that the interviews would remain confidential within the limits prescribed by the Official languages Act. The investigation report concluded that the complaints were well founded and submitted recommendations to the Department concerned, which agreed to implement them.
Mr. Lavigne made a section PA request for disclosure of the personal information contained in the files on the complaints he had made. A copy of this information was sent to the office of the COL, except for the portions which were withheld under the exemption set out in subs. 22(1)(b) PA. That provision gives the COL the power to refuse access to information requested "the disclosure of which could reasonably be expected to be injurious to…the conduct of lawful investigations". Several other requests by the COL were refused. Mr. Lavigne filed a complaint with the Privacy Commissioner and a number of witnesses who had been questioned agreed to a copy of the personal information contained in the notes of the Office of the COL investigators being given to the respondent. The Privacy Commissioner ruled that the personal information contained in the testimony of the other people questioned, for which consent to disclosure had not been obtained, had been properly exempted from disclosure under s. 22(1)(b) PA.
The COL filed an application for judicial review of the COL's decision refusing to disclose the information requested. The dispute relates to the personal information concerning Mr. Lavigne as well as non-personal information contained in the interview notes of the Office of the COL investigators.
The Federal Court (Trial Division) ordered disclosure of the personal information requested by Mr. Lavigne. The Federal Court of Appeal affirmed that decision.
Decision
The appeal was dismissed and the information was ordered released but not for the reasons rendered by the FC (TD) or FCA.
Reasons
- Whether, pursuant to s. 22(1) (b) PA, disclosure of the personal information requested by Mr. Lavigne could
reasonably be expected to be injurious to the conduct of lawful investigations by the COL.
- When a request for disclosure of information is made under the PA, the COL may refuse access to the information requested under s. 22(1)(b) PA. That provision allows the exception to disclosure to used once an investigation is over. Neither the definition of the word "investigation" in s. 22(e) nor the wording of s. 22(1)(b) should be interpreted as restricting the scope of the word "investigation" to investigations that are underway, those that are about to commence or specific investigations. There is therefore no justification for limiting the scope of that provision.
- The non-disclosure of personal information provided in s. 22(1)(b), however, is authorized only when disclosure "could reasonably be expected" to be injurious to investigations. There must be a clear and direct connection between the disclosure of specific information and the injury that is alleged. The sole objective of non-disclosure must not be to facilitate the work of the body in question; there must be professional experience that justifies non-disclosure. Confidentiality of personal information must only be protected where justified by the facts and its purpose must be to enhance compliance with the law. A refusal to ensure confidentiality may sometimes create difficulties for the investigators, but may also promote frankness and protect the integrity of the investigation process. The COL has an obligation to be sensitive to the differences in situations, and he must exercise his discretion accordingly.
- In this case, it cannot reasonably be concluded from the COL's statements that disclosure of the interview notes that are the subject of the judicial review application could reasonably be expected to be injurious to the conduct of his future investigations. The COL has not established, as required by s. 47 PA, that his discretion was properly exercised. His decision must be based on real grounds that are connected to the specific case in issue. The evidence filed by the COL shows instead that his decision not to disclose the personal information requested was based on the fact that the person interviewed had not consented to disclosure, and does not establish what risk of injury to his investigations the latter might cause.
- Rather than showing the harmful consequences of disclosing the interview notes on future investigations, an attempt was made to prove, generally, that if investigations were not confidential this could compromise their conduct, without establishing specific circumstances from which it could reasonably be concluded that disclosure could be expected to be injurious.
- Even if permission is given to disclose the interview notes in this case, that still does not mean that access to personal information must always be given. It will still be possible for investigations to be confidential and private, but the right to confidentiality and privacy will be qualified by the limitations imposed by the PA and the Official Languages Act. The COL must exercise his discretion based on the facts of each specific case. In this case, the COL has not shown that it is reasonable to maintain confidentiality.
- Whether Mr. Lavigne is entitled under his PA request to information other than his personal information?
- Mr. Lavigne cannot obtain disclosure of information other than personal information since his request is based on s. 12(1) PA, which provides that only personal information may be disclosed.
