Info Source Bulletin Number 31A - Court Case Summaries

Privacy Act

and

Access to Information Act

Bulletin Number 31A
Court Case Summaries

Foreword

A. Information about the Government of Canada

B. Canada Web Site

C. About Info Source

D. Roles and Responsibilities

E. Additional Information

Index of Federal Court Cases

Foreword

Info Source: Bulletin – Federal Court Case Summaries

Info Source: Bulletin - Federal Court Case Summariescontains summaries of federal court cases related to the Access to Information Act and the Privacy Act in 2007-2008.

This publication is updated annually.

A. Information about the Government of Canada

The telephone numbers listed below are for the Government of Canada's bilingual, toll-free service. They can be used to obtain general information and referrals for programs and services.

Toll-free	1 800 O-Canada (1-800-622-6232)
TTY/TDD	1-800-926-9105

B. Canada Web Site

Web Site

www.canada.gc.ca

The Canada web site provides a single electronic access point to general information about Canada, the federal government, its programs and services. The Canada Site features three gateways to quickly access information: Service Canada, Canada Business and Canada International. These gateways organize content based upon the needs of users rather than by departmental responsibility.

C. About Info Source

Info Source is a series of publications containing information about and/or collected by the Government of Canada. The primary purpose of Info Source is to assist individuals exercise their rights under the Access to Information Act and the Privacy Act. Info Source also supports the government's committment to facilitating access to information regarding its activities.

Info Source includes the following four publications:

Info Source: Sources of Federal Government Information:

provides information about the functions, programs, activities and related information holdings of federal government institutions subject to the Access to Information Act and the Privacy Act; and
provides individuals and employees of the federal government with relevant information to access personal information about them held by federal government institutions subject to the Privacy Act.

Info Source: Sources of Federal Employee Information:

provides information to assist current and former federal government employees access personal information about them held by federal government institutions subject to the Privacy Act andto exercise their rights under the Privacy Act.

Info Source: Bulletin - Statistical Reporting:

contains statistical information about access to information and privacy requests on an annual basis; and
provides cumulative statistics about access to information and privacy requests since 1983.

Info Source: Bulletin – Federal Court Case Summaries:

includes an annual summary of federal court cases related to the Access to Information Act and the Privacy Act.

D. Roles and Responsibilities

Treasury Board Secretariat
The Access to Information Act and the Privacy Actassign responsibility to the President of Treasury Board (as the designated Minister) to create and disseminate information annually about federal government institutions' activities and the personal information they collect, use and disclose. Treasury Board Secretariat fulfills this role by compiling and distributing the Info Source publications and by reviewing and registering Personal Information Banks.

Federal Institutions
Federal government institutions are responsible for sound management practices and decisions in responding to requests from applicants and with respect to the handling and protection of personal information.

Institutions are also responsible for providing comprehensive, accurate and up-to-date descriptions of their functions, programs, activities, related information holdings and collections of personal information for the Info Source publications on an annual basis. Each institution is responsible for the information it submits.

Each federal institution also has an Access to Information and Privacy (ATIP) Coordinator or a Privacy Coordinator. A list of federal government ATIP Coordinators is available at: www.tbs-sct.gc.ca/atip-aiprp/apps/coords/index-eng.asp.

E. Additional Information

For more information about Info Source, the Access to Information Act or the Privacy Act, please contact:

Treasury Board of Canada Secretariat
L'Esplanade Laurier, 8^th Floor, East Tower
140 O'Connor Street
Ottawa, Ontario K1A 0R5

General Enquiries	613-957-2400
Publications	613-995-2855
Facsimile	613-996-0518
TTY	613-957-9090
General Library Reference	613-996-5494
E-Mail	infosource@tbs-sct.gc.ca
Treasury Board Web Site	www.tbs-sct.gc.ca
Info Source Web Site	www.infosource.gc.ca

To purchase a copy of Info Source: Sources of Federal Government Information or Info Source: Sources of Federal Employee Information on CD-ROM, please contact:

Publishing and Depository Services
Public Works and Government Services Canada
Ottawa, Ontario K1A 0S5

E-Mail	publications@pwgsc.gc.ca
Telephone	613-941-5995
Telephone Toll free (Canada & US)	1-800-635-7943
Facsimile	613-954-5779
Facsimile Toll free (Canada & US)	1-800-565-7757
Web Site	http://publications.gc.ca

All Info Source publications are available free of charge on the Internet at: www.infosource.gc.ca.

Index of Federal Court Cases

Federal Court Cases

Prepared by the Information Law and Privacy Section, Department of Justice

These cases are ordered by the most recent date of decision.

Information Commissioner of Canada and the Minister of National Defence; Information Commissioner and the Prime Minister of Canada; Information Commissioner and the Commissioner of the RCMP; Information Commissioner and the Minister of Transport

Federal Court of Canada

2008 FC 766

Date of Decision: June 19, 2008

Sections(s): Sections 4, 19, 21(1)(a)(b), 42, 69 Access to Information Act

Origin

Application for judicial review of the decisions of these departments refusing to release information.

Facts

In 2000, the Office of the Information Commissioner began an investigation into a complaint made under the ATIA relating to requests made to several government institutions:

requests to PCO for the daily agendas of the Prime Minister covering the period 1994 to 1999 and for records relating to the appointment of Conrad Black to the British House of Lords;
a request to the RCMP for all copies of the PM's daily agendas provided to the RCMP by the PMO from January 1, 1997 to November 14, 2000;
requests made to DND for the minutes of meetings between the Minister of National Defence, the Deputy Minister of National Defence and the Canadian Forces Chief of Staff ("the M5 meetings"); and
a request to Transport Canada for the daily agendas of the Minister of Transport between June and November 1999.

During the Commissioner's investigation, all of the government institutions implicated took the position that they had no records relevant to the requests. A number of issues arose during the investigation, resulting in a number of preliminary judicial review applications that are the subject of separate case summaries. Once these matters had been resolved in the courts, the Information Commissioner completed his investigation of the four government institutions in 2005 and recommended disclosure of the requested documents, including "ministerial records". The Information Commissioner's recommendations were not accepted by any of the four government institutions. Consequently, the Information Commissioner, on behalf of the complainants, sought judicial review in the Federal Court of these decisions to refuse to disclose the requested records.

The applications for judicial review were finally heard by the Federal Court on May 12 to 16, 2008.

Decision

The application for judicial review in respect of DND and PMO were allowed in small part. The application for judicial review in respect of the RCMP was allowed in large part. The application for judicial review in respect of Transport Canada was dismissed. The Information Commissioner's request for costs even if unsuccessful was dismissed.

Reasons

Issue 1

Are the Prime Minister's Office, the Office of the Minister of Transport, and the Office of the Minister of National Defence "government institutions" under subsection 4(1) and Schedule I of the ATIA?

The Court considered a number of factors in assessing whether the PMO and ministers' offices are "government institutions" or parts of "government institutions" for the purposes of the subsection 4(1) ATIA.

The evidence tendered stated that the PMO is an organization separate and distinct from the PCO. While the two entities work closely together on some matters, the PMO is responsible for many matters unrelated to the PCO. The same is true with respect to the relationship between a minister's office and the department over which the minister presides. Accordingly, the evidence demonstrated that in the ordinary sense of the words in subsection 4(1) of the ATIA, the PMO and the relevant ministerial offices are not part of the "government institution" for which they are responsible.
The Commissioner submitted that a minister is part of his or her department because he or she is defined under the ATIA as being the "head" of the government institution for the purposes of theATIA. As well, the statutes creating the DND and the DOT both provide that their respective ministers are responsible for the management of these departments. Moreover, the Commissioner submits that the budgets for ministerial offices and the PMO are included in the budgets for their respective departments. The Court agreed that these facts supported the interpretation that ministers' offices and the PMO are part of their respective departments, and therefore included in their respective government institution listed in Schedule I to the ATIA.

However, the Court found that the PM and the Ministers of National Defence and Transport have many other functions unrelated to their respective departments for which they are responsible.

Accordingly, while the minister is responsible for the department, and is the head of that department, that does not make the minister or his or her office a component part of the department. While budgets for ministerial offices and the PMO are included in their respective departmental budgets as a separate line item, this does not make their respective offices part of the department. Similarly, the Treasury Board has budgetary responsibility for the Office of the Information Commissioner, but the Commissioner is not part of the Treasury Board.

An interpretation of "government institution" that included the PMO and offices of the relevant ministers would dramatically extend the right of access from records held by government institutions to records in those offices that are wholly unrelated to the department, including political records with respect to constituency matters, fundraising matters, Cabinet matters, and House of Commons matters. In the Court's view, Parliament would not have intended such a dramatic result without express wording to that effect. The Commissioner agreed that Parliament did not intend the ATIA to apply to political documents. The Court found no exemption or exclusion for such political records. Accordingly, the Court concluded that Parliament did not intend that the PMO or ministerial offices be implicitly included as a component part of the government institutions listed in Schedule I. Parliament would have expressly so provided if it so intended.
The evidence, in particular his official Report to Parliament a few years after the ATIA was proclaimed in force, confirmed that the Commissioner understood the intent of Parliament was not to include the PMO or a minister's office in the government institutions listed in Schedule I of the ATIA. The Commissioner has altered course and changed this position over time. More recently, the position of the Commissioner has been that ministerial offices are subject to the ATIA. In fact, the Commissioner acknowledged that this has been an issue where there has been some doubt, and urged Parliament in one of his recent official Reports to amend the legislation to clarify this.

Since the Commissioner publicly urged Parliament to amend the legislation to clarify that the PMO and ministerial offices are subject to the ATIA, Parliament has amended the Act several times and has not made this amendment. If Parliament intended that ministers' offices be part of a government institution, it would have made the appropriate amendments when in 2006 it adopted the Federal Accountability Act. While Parliament's intention may not always be inferred from legislative silence, in this case, the silence is clear and relevant evidence of legislative intent. The office of a minister is not intended to be part of a scheduled government institution.

According to the "implied exclusion" rule of statutory interpretation, if Parliament had intended to include the PMO and ministers' offices in Schedule I, it would have referred to them expressly. This is evidence that Parliament intended to exclude the PMO and ministers' offices from the government institutions subject to the ATIA.
The evidence demonstrated that there have been many ministers without portfolio since Confederation. If the ATIA was intended to apply to the offices of ministers, the ATIA would not apply to a minister without portfolio because he or she does not have a corresponding "government institution" listed in Schedule I. Such a result is absurd.
The distinctive use in the Act of "government institution" and "minister of the Crown," in the Court's view, demonstrated that Parliament intended them to have two different meanings. Otherwise, under paragraph 21(1)(a), it would be redundant to directly follow "government institution" with the express phrase "or a minister of the Crown."
Parliament, in other legislation, has distinguished between a "ministerial record" and a "government record," such as in the Library and Archives of Canada Act. If Parliament intended a "minister's office" to be a component of a "government institution," there would be no need to distinguish between a "government record" and a "ministerial record." By definition, they would be the same. Parliament's consistency in distinguishing between governmental records and ministerial records is encapsulated in the principle of consistent expression, which Professor Sullivan states applies not only within statutes but across statutes as well, particularly statutes or provisions dealing with the same subject. In the Court's view, the different purposes of the Library and Archives of Canada Act and the ATIA did not detract from the consistency of the terminology employed by Parliament.
In summary, applying the context of the Act; reading the words in their ordinary sense harmoniously with the scheme of the Act and the intention of Parliament; and applying the principles of statutory interpretation, the Court concluded that the PMO cannot be interpreted as part of the PCO. Rather, the PMO is a separate office with staff not connected with the PCO and having a number of functions not related to the PCO. The Court was satisfied that the ordinary meaning of the PCO is clear, and that no contextual consideration could warrant the Court interpreting Parliament to have intended the PMO to be part of the PCO for the purposes of the ATIA. The Court reached the same conclusions with respect to ministers' offices not being part of their respective government institutions.

Issue 2

What constitutes a record "under the control of a government institution" as stated in subsection 4(1) of the ATIA?

The Court considered the relevant jurisprudence concerning the proper meaning of "control" under the ATIA. From this jurisprudence, the Court extracted the following principles that guided its analysis in this case:

Control is not a defined term;
In reaching a finding of whether the records at issue are "under the control of a government institution," the Court can consider "ultimate" control as well as "immediate" control, "partial" as well as "full" control, "transient" as well as "lasting" control, and "de jure" as well as "de facto" control;
Parliament did not restrict the notion of control to the power to "dispose" – i.e., get rid of the documents in question; and
The contents of the records and the circumstances in which they came into being are relevant to determine whether they are under the control of a government institution for the purposes of disclosure under the Act.

Using these principles, the Court considered the contents of the records and the circumstances in which they were created to surmise whether the government institution could obtain a copy upon request from the PMO or the offices of the Ministers of National Defence and Transport.

Upon review by the Court, if the content of the documents in the PMO or the Offices of the Ministers of National Defence and Transport relate to a departmental matter, and the circumstances in which the documents came into being show that the deputy minister or other senior officials in the department could request and obtain a copy of that document to deal with the subject matter, then that document is under the control of the government institution.
While the meaning of "control" is to be given a broad and liberal interpretation to create a meaningful right of access to government information, it cannot be stretched beyond reason. In this case, the Court interprets "control" to mean that a senior official with the government institution (other than the Minister) has some power of direction or command over a document, even if it is only on a "partial" basis, a "transient" basis, or a "de facto" basis.
A document in the Minister's office that relates to a departmental matter does not necessarily mean that the document is under the control of the government institution. If it was created by a departmental official and sent to the Minister's office, then that departmental official should have a reasonable expectation that he or she can obtain another copy of it upon request. If this is the case, then the document is under the control of the government institution.
Similarly, if the document was prepared in the Minister's office in consultation with a government/departmental official, then that individual should again have a reasonable expectation of obtaining a copy of it upon request, and the document can be seen as being under the control of the government institution.

If, however, the document was prepared by someone in the Minister's office, was to be used for the sole purposes of the Minister's office, and if no government/departmental official has, or should have, a reasonable expectation of obtaining a copy of it, then that document is not under the control of the government institution for the purposes of the ATIA.

Issue 3

What is the meaning and scope of the exemptions in sections 19 and 21 and the exclusion in section 69 of the ATIA?

The Court reached a number of conclusions with respect to the meaning and scope of sections 19, 21, and 69 of the ATIA, all of which had been invoked by the government institutions to refuse disclosure in this case.

First, the section 19 exemption for "personal information" does not exempt the agendas of a minister, including the Prime Minister, with respect to appointments related to their duties and functions as a minister, since they are "officers" for the purposes of the exception to the general definition of "personal information" found in paragraph 3(j) of the Privacy Act.

However, private appointments of the PM or a minister not related to their job are exempt as "personal information." Also, the names of private individuals contained within the agendas who are not government officers or employees are "personal information" exempt from disclosure under the ATIA. Accordingly, if the PM meets with a political person, a businessman, or a lobbyist, the name of that individual is the private and personal information of that individual, and is exempt from disclosure.

Second, in the agendas of the PM and the Minister of Transport, there are no subject matter details included in the agenda entries, only the scheduling of meetings. Notice of a meeting does not disclose advice or recommendations of that meeting. Accordingly, the exemption in subsection 21(1) does not apply.

Finally, the exclusion for Cabinet confidences under section 69 of the ATIA and section 39 of the CEA does not apply to the agendas because they do not contain the subject matter of the meetings thereby disclosing any confidences of the Privy Council. The fact that a meeting took place does not disclose a Cabinet confidence. Under section 69, the Court can review the records at issue to determine if they are Cabinet confidences, and therefore excluded from the scope of the ATIA.

Issue 4

How do the foregoing legal principles apply to the records at issue here?

The Court reached the following conclusions with respect to the application of the above legal principles to the records at issue.

The Minister of National Defence records

The 648 pages of records within the Office of the Minister of National Defence relating to the M5 meetings are partly subject to disclosure under the ATIA:

The personal notes of the Minister's exempt staff would not, if ever requested, have been produced to DND officials. The Court reasonably assumed that any request for information from the notes would be prepared by the exempt staff in a typed-written record of the discussion. Accordingly, the DND did not have any form of control over the personal notes of the exempt staff taken at the meetings;
The e-mail correspondence within the Minister's office is not under DND's control;
The agendas for the M5 meetings, which were originally provided to the Deputy Minister and the Chief of the Defence Staff, would reasonably be provided upon request so that they are under the control of the DND; and
The 39 pages of miscellaneous documents, which include memoranda and briefing notes for the Minister and were originally provided to the Deputy Minister and/or the Chief of the Defence Staff, would be reasonably provided again to the Deputy Minister and/or the Chief of the Defence Staff and, accordingly, are under the control of the DND.

The PM agendas

Of the 2006 pages of records uncovered during the Commissioner's investigation, only the four pages located within the PCO are subject to disclosure under the ATIA:

The 2002 pages of the PM's agendas archived in the PMO could not have been obtained by the Clerk of the Privy Council upon request after their relevant date. The PMO prepared an edited version of the agendas, which was sent daily to the Clerk for a limited timeframe on the condition that these edited versions be destroyed each day. The unequivocal evidence from the PM's Executive Assistant is that he would have refused to provide the agendas to the Clerk after the fact unless directed to do so by the PM or the PM's Chief of Staff. The Court reasonably assumed that the Executive Assistant would have sent the Clerk a memo with any requested information about a past meeting rather than sending a copy of the old agenda. Accordingly, these agendas were not under the control of the PCO;
The four pages of the edited agendas located within the PCO are under the control of the PCO and must be disclosed under the ATIA except for appointments of the PM that relate to his private life and not his functions or duties as Prime Minister, and names of any individual not an employee or officer of the government (including individuals such as a political party fundraiser, a lobbyist, or a businessman). Such information is the personal and private information of the individual and is exempt as "personal information" under section 19 of the ATIA; and
Since the agendas do not contain any of the subject matters of the meetings, they do not disclose any confidences of the Queen's Privy Council subject to exclusion under section 69 of the ATIA or section 39 of the CEA. Similarly, the agendas do not contain any advice or recommendations for the Prime Minister or an account of consultations or deliberations with the Prime Minister which would be exempt under subsection 21(1) of the ATIA.

The RCMP records

The 386 pages of the PM's agendas located on RCMP premises are under the control of the RCMP and are subject to disclosure under the ATIA except for the "personal information" exempt under section 19, which is referred to above;

The Minister of Transport records

The 46 pages of weekly agendas of the former Minister of Transport are not subject to disclosure under the ATIA:

An abridged copy of these agendas, which account for 23 pages of the records, were archived in the Minister's office and were created and provided to the Deputy Minister to facilitate the administration of the DOT. However, these abridged agendas were provided for a limited timeframe on the condition that they be destroyed after their relevant date had passed. The Deputy Minister testified that she did not reasonably expect to be able to obtain another copy of the agendas after the relevant date had passed because the agendas were restricted to the Minister's office. In view of this evidence, the DOT did not have control over the past abridged agendas when the access request was filed; and
With respect to the unabridged agendas of the Minister of Transport, which accounted for the remaining 23 pages of records, the evidence is that they were not provided to the Deputy Minister or anyone else in the DOT. For this reason, these unabridged agendas do not constitute records under the control of a government institution.

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 5^th, 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."

Canadian Imperial Bank of Commerce v. Canada (Canadian Human Rights Commission)

2007 FCA 272

Federal Court of Appeal

Date of Decision: August 27, 2007

Sections(s): Sections 3(1), 19, 20(1)(b)(c)(d) and 44 ATIA

Origin

Appeal from the Federal Court decision dismissing the CIBC application for judicial review of the Commission's decision to release the requested records.

Facts

In 2000, the Commission began an audit of CIBC pursuant to the EEA. The Commission issued, in the fall of 2002, an interim report containing its preliminary findings – this report was communicated to the CIBC. In November 2002, the Commission received a request under the ATIA for disclosure of the interim report. CIBC was informed of this request and was asked for comments. CIBC opposed the release of the interim report on the ground of the statutory privilege created by s. 34 EEA, which states that information obtained by the Commission under the Act is privileged and shall not knowingly be, or be permitted to be, communicated, disclosed or made available without the written consent of the person from whom it was obtained. CIBC also claimed that the report contained sensitive commercial information which it had supplied to the Commission in confidence. The Commission advised CIBC in February 2003 that it did not intend to disclose the interim report as it contained confidential commercial information, and was thus exempt from disclosure pursuant to para. 20(1)(b) ATIA.

In July 2004, the Commission received a request under the ATIA for disclosure of its final report. The Commission advised CIBC of the request and asked for its views, without disclosing that the request was made orally and not in writing. Upon being consulted, CIBC opposed the release of the final report, relying on the same ground it used to oppose the release of the interim report. On October 26, 2004, the Commission advised the CIBC that it intended to disclose the final report. Two days later, the Commission notified CIBC that its previous decision not to release the interim report had been based on para. 16(1)(c) ATIA, instead of para. 20(1)(b) ATIA.

The CIBC filed an application to the Federal Court under s. 44 ATIA seeking review of the Commission's decision. Blanchard J. dismissed the application except with respect to two discrete pieces of information CIBC appealed this decision to the Federal Court of Appeal and the Canadian Bankers Association (CBA) was granted intervener status.

Decision

The Federal Court of Appeal allowed the appeal. The decision to disclose the final report was returned to the Commission with a direction to dispose of the request on the basis that the final report contained confidential commercial information which was treated consistently in a confidential manner by CIBC, further to para. 20(1)(b) of the ATIA.

Reasons

The Commission did not comply with section 6 ATIA when it decided to disclose the final report in the absence of a written request. However, there is nothing in the ATIA which purports to make anything done in the absence of a written request void. As no arguments had been presented on the distinction between a mandatory, as opposed to a discretionary, provision, the Court of Appeal assumed, without deciding, that the request for disclosure of the Final Report was not void solely by reason of not having been made in writing.
The Court of Appeal overturned the Federal Court decision and exempted the information provided by CIBC pursuant to para. 20(1)(b) ATIA, which protects financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party. The Court of Appeal held that the test for determining whether the content of a record contains confidential information is that the information found therein is not available from sources otherwise accessible by the public: Air Atonabee Ltd. v. Canada (Minister of Transport), 27 F.T.R. 194. CIBC's belief that the information was privileged and communicated in the expectation that it would be kept in confidence was not seen as unreasonable. The Court of Appeal, relying on the Air Atonabee Ltd. case, stated that the public benefit requirement does not require a weighing of the public interest between disclosure and non-disclosure; if the relationship is not contrary to the public interest, and if that relationship will be fostered by preserving the confidentiality of the communications passing between the parties to the relationship, then non-disclosure is indicated. The Court of Appeal concluded that the confidential relationship between the Commission and the subject of an employment equity audit is in the public interest, as evidenced by s. 34 EEA.
Although the Court of Appeal allowed the appeal on the basis of para. 20(1)(b) ATIA, it examined the other grounds of appeal for the sake of completeness. Pelletier J.A. affirmed the application judge's conclusion that para. 20(1)(c) ATIA (information whose disclosure could adversely affect a party's competitive position) did not apply as the evidence brought by CIBC was speculative.
The FCA also affirmed the lower court ruling that the Commission had not breached the principles of fundamental justice when it revised the grounds upon which it refused to disclose the interim report after CIBC had made its submissions regarding the disclosure of the final report.

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".

Information Commissioner v. Canada (Minister of Environment) (Ethyl)

Federal Court

Date of Decision: October 17, 2006

Sections(s): Sections 21(1)(a), (b) ATIA

Origin

Application for review of the refusal of the Minister of Environment Canada to disclose portions of a 1995 Memorandum to Cabinet regarding MMT by reason that the records are exempt from disclosure under paragraph 21(1)(a) and (b) ATIA.

Facts

In 2001, the Federal Court stated "discussion papers" stated in ss. 69(1)(b) and 69(3)(b) ATIA include background information in a Memorandum to Cabinet.

The Federal Court of appeal agreed with this decision in 2003. However, the Court of appeal also determined "the Minister should be given an opportunity to claim any exemption that might apply to this information".

The Clerk of the Privy Council reviewed the requested documents and stated the "analysis section" of the Memorandum to Cabinet "contained a corpus of words" that meets the definition of "discussion paper(s)" in s. 69(1)(b) ATIA and s. 39(2)(b) of the Canada Evidence Act.

The Clerk referred the analysis section to the Minister for Review. On June 2003, the Information Commissioner filed a complaint based on ss. 30(3) ATIA in respect of an alleged "failure to process the Analysis Section".

The Minister provided some portions of the Analysis Section that were not subject to exemptions. The Minister however relied on ss. 21(1)(a), 21(1)(b) and 23 ATIA so as not to release certain portions of the Analysis Section. The Information Commissioner disagreed as regards the applicability of ss. 21(1)(a) and (b) ATIA and applied to the Federal Court for a review of the Minister's refusal to disclose the Disputed Passages.

Decision

The Minister bears the burden of proving his discretion was properly exercised.

Section 69(3) ATIA does not prevent exemptions stated under s. 21(1) ATIA.

Ss. 21(1)(a) ATIA applies to opinions and recommendations, not merely factual information.

Ss. 21(1)(b) ATIA only applies to consultations undertaken or exchange of views leading to a particular decision.

When exercising his discretion to refuse to disclose information, the Minister shall consider the public interest for and against disclosure.

Reasons

Issue 1

Whether the Minister bears the burden of proving his or her discretions have been properly exercised

Both parties agreed that, as the party attempting to prevent disclosure, the Minister bears the burden of proving the applicability of an exemption to a particular set of records. The Minister argued, however, that, as the party alleging that discretion has been improperly exercised, the Commissioner bears the burden of proving this allegation. The Court dismissed the Minister's submission and relied on the SCC ruling Lavigne v. Canada (Office of the Commission of Official Languages), [2002] according to which "s. 47 of the Privacy Act provides that the burden of establishing that the discretion is on the government institution". The Court stated the same reasoning should apply to s. 48 ATIA.

Issue 2

Whether ss. 69(3) ATIA prevents exemptions stated under s. 21(1) ATIA

Both a plain reading of sections 21 and 69 and a review of ATIA's legislative history led the Court to conclude that s. 69(3) does not prevent the applicability of exemptions provided by ss. 21(1) ATIA.

Issue 3

What is the standard of review in the present case

The Court stated it was necessary to undertake the pragmatic and functional analysis of the appropriate standard of review.

The Court concluded the standard of review with respect to the interpretation and application of the discretionary exemptions conferred by ss. 21(1)(a) and (b) ATIA is correctness. The Court's conclusion was based on the following statements: the ATIA does not contain a privative clause "insulating decisions of heads of government institutions on questions of access to information"; the Minister has no expertise in statutory interpretation of the interplay between subsections 21(1)(1), (b) and section 69 ATIA; the purpose of ATIA is advanced by adopting a less deferential standard of review; the question in this review is a question of law, which warrants no deference.

The Court also determined the "Minister's exercise of discretion under paragraphs 21(1)(a) and (b) should be assessed on the reasonableness standard". The Court's decision was based on Canada Inc. v. Canada (Minister of Industry), [2002] 1 F.C. 241 [Telezone].

Issue 4

What documents are subject to the discretionary exemptions stated under ss. 21(1)(a) and (b) ATIA?

Regarding the general interpretation of s. 21 ATIA, the Court relied on the following passage of the Federal Court decision Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 at para 39: "(…) documents containing information of a factual or statistical nature, or providing an explanation of the background to a current policy or legislative provision, may not fall within [paragraphs 21(2)(a) and (b) ATIA]. However, most internal documents that analyse a problem, starting with an initial identification of a problem, then canvassing a range of solutions, and ending with specific recommendations for change, are likely to be caught within paragraph (a) or (b) of subsection 21(1)."

The Court determined ss. 21(1)(a) ATIA applies to opinions and recommendations, not merely factual information. The Court relied on the Telezone case where the Court of Appeal ruled the word "advice" in this provision includes "an expression of opinion on policy-related matter", but excludes "information of a largely factual nature (…)". Subsidiarily, the Court decided that one specific passage which could not be exempted under ss. 21(1)(a) could not also be exempted under s. 23, as this passage was almost identical to another statement which has already been disclosed.

The Court also decided ss. 21(1)(b) ATIA only applies to consultations undertaken or exchange of views leading to a particular decision. The Court's conclusion was based on the Federal Court decision Newfoundland Power Inc. v. Canada (Minister of National Revenue), 2002 FCT 692 and on the Treasury Board Manual interpretation of ss. 21(1)(b) ATIA.

The Court acknowledged that "in the context of a Memorandum to Cabinet, it is apparent that there may be considerable overlap between the scope of records covered by each of paragraphs 21(1)(a) and (b).

Issue 5

Did the Minister lawfully exercise his or her discretion to refuse to disclose the requested information?

According to the Court, "the case law addresses the need for the Minister to consider the public interest for and against disclosure and weigh these competing interests with the purposes of the Act in mind". There is an obligation to "consider whether disclosure is possible without impairing the effectiveness of government". In the case at issue, the Court declared "there are insufficient reasons provided in support of the Minister's refusal to disclose". The Court was not "referred to any evidence that supports the Minister's conclusion that the release of the Disputed Passages would compromise future government action".

The Court ordered accordingly the remaining portions of the Disputed Passages to which paragraph 21(1)(1) and (b) apply to be returned to the Minister "to re-determine with reasons whether disclosure to Ethyl is warranted in the circumstances".

Merck Frosst Canada Ltée v. Minister of Health

2006 FC 1201

Federal Court

Date of Decision: October 12, 2006

Sections(s): Sections 20(1), 25, 27(1), (2), 28 and 44(1) ATIA

Origin

Section 44 ATIA application for judicial review of a decision by Health Canada to disclose records related to a new drug marketed by Merck.

Issues

1^st Issue

Whether Merck is entitled to obtain a declaratory order against the legality of the process Health Canada's ATIP Office followed during the processing of the access request?

2^nd Issue

Whether, if the answer to the preceding question is in the affirmative, the process Health Canada followed during the processing of the access request is consistent with the Act?

3^rd Issue

Whether Health Canada's decision to disclose the records relevant to the access request is consistent with the exceptions provided for in subsection 20(1) of the Act?

Facts

Health Canada (HC) received a request for access to documentation concerning the new drug called Singulair. Health Canada identified the documents requested (547 pages). In considering the application of section 20 ATIA, HC consulted Merck to seek comment about the disclosure of certain documents in accordance with section 27 of the ATIA.

As a first step, on August 16, 2000, some documents were therefore sent to Merck with notice of consultation and about twenty pages of documentation were disclosed to the requester without prior notice to Merck.

As a second step, on January 2, 2001, after undertaking the necessary consultations with Merck, Health Canada informed Merck of its decision to disclose certain records despite Merck's representations and objections. Merck therefore filed an application for judicial review of that decision. Harrington J. of the Federal Court allowed the application in part and concluded that Health Canada had an obligation to refuse the disclosure of certain records in accordance with subsection 20(1) and should not have disclosed certain other records of Merck without consultation. To that end, the Judge concluded that Merck was entitled to obtain a declaratory order against the disclosure of certain records by Health Canada without consultation. The Federal Court of Appeal overturned that order and returned the matter to the Federal Court Trial Division for redetermination under paragraph 52(b)(ii) of the Federal Courts Act. It is this redetermination that is at issue here.

Decision

The application for judicial review was allowed in part.

Reasons

First issue

Whether Merck is entitled to obtain a declaratory order against the legality of the process Health Canada followed during the processing of the access request?

The Court found that section 44 of the ATIA places no obstacle in the way of reviewing the process that led to the decision and the merits of the decision as part of the application for judicial review. Noting the procedural arguments put forward by Health Canada that the same access request was the subject of two separate decisions (the first one on August 16, 2000, and the second one on January 2, 2001) and that only one be subject to judicial review by the Court, the Court concludes that Merck is entitled to obtain a declaratory order against the legality of the disclosure of records by Health Canada without consultation that occurred on August 16, 2000.

With respect to the decision of January 2, 2001, which led to the disclosure of certain records after consultation, the Court concluded that some of the records relevant to the access request should not have been disclosed under subsection 20(1) of the ATIA. Therefore, the Court also concluded that Merck was entitled to obtain a declaratory order against the legality of the process imposing on Merck the burden of proving that Health Canada should have refused to disclose any record under subsection 20(1) of the ATIA.

Second issue

Whether, if the answer to the preceding question is in the affirmative, the process Health Canada's ATIP Office followed during the processing of the access request is consistent with the Act?

As for the decision to disclose some of Merck's records without consultation, the Court rejects the argument that only Health Canada could properly decide on the applicability of subsection 20(1) of the ATIA to certain documents of Merck, and that thus Health Canada decided not to consult the third party before disclosing documents. According to the Court, such an interpretation would give Health Canada the power to determine the inapplicability of subsection 20(1) which would protect it from court supervision and could cause irreparable harm to the third party concerned by the access request (Merck). The Court therefore concludes that the disclosure without consultation by Health Canada of Merck's documents was contrary to the spirit of section 20 of the ATIA and should not have occurred.

As for the consultation process undertaken by Health Canada and imposing on Merck the burden of proving that certain records should not have been disclosed under subsection 20(1), the Court found that that process was not unlawful. According to the Court, Merck is in a better position than Health Canada to identify the excerpts to which subsection 20(1) applies as it is its own documentation. Such a burden imposed on the third party is not disproportionate considering the superior expertise of the third party (Merck in this case) and the importance it is likely to attach to the protection of its documentation.

Third issue

Whether Health Canada's decision to disclose the records relevant to the access request is consistent with the exceptions provided for in subsection 20(1) of the Act?

The Court concluded that the pages identified by Merck as containing information not available "as such" in the public domain are not excluded from disclosure under paragraph 20(1)(c) of the ATIA. The Court however concluded that the disclosure of records containing more specific and detailed information than information already in the public domain should have been refused under paragraph 20(1)(c) of the ATIA.

The Court identified pages of records containing information constituting trade secrets and concludes that the disclosure of those records should have been refused under paragraph 20(1)(a) of the ATIA. The Court identified pages containing confidential information treated in a confidential manner by Merck and not in the public domain and concluded that the disclosure of those records should have been refused under paragraph 20(1)(b) of the ATIA.

The Court identified pages containing information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, the applicant and concluded that those records should not have been disclosed under paragraph 20(1)(c) of the ATIA.

Finally, the Court found that except where a specific excerpt from a page is mentioned and can be easily identifiable, under section 25 of the ATIA, the entire page should be deleted.

As of November 18^th, 2008, this decision is under appeal at the Federal Court of Appeal.

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.

H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General)

2006 SCC 13

Supreme Court of Canada

Date of Decision: April 21, 2006

Sections(s): 19(1)(2) ATIA;
Sections 3, 8(1)(2)(5) Privacy Act

Origin

Appeal from Federal Court of Appeal's decision that the company could raise the section 19 exemption during a section 33 review and ordered the severance of certain records containing personal information.

Issue

Can a third party raise the section 19 ATIA exemption during a section 44 ATIA application?

Facts

The Canadian Food Inspection Agency (CFIA) received an ATIA request for certain records pertaining to a third party, H.J. Heinz Co. of Canada. The Agency determined that some of the records might contain third party information, as described in s.20 (1) ATIA, and requested, under ss. 27 and 29, that the company make representations as to why the information should not be disclosed.

The company submitted its representations and after reviewing them, the agency concluded that the records should be disclosed, subject to certain redactions. The company filed an application for judicial review under s. 44 ATIA and, in addition to the section 20 exemption, sought to raise the personal information exemption in section 19 ATIA.

Decision

The appeal was dismissed.

Reasons

Can a third party raise the section 19 ATIA exemption during a section 44 ATIA application?
- Where a third party becomes aware that a government institution intends to disclose a record containing personal information, nothing in the plain language of ss. 28, 44 and 51 of the ATIA prevents the third party from raising this concern by applying for review.
- Section 44 is the sole mechanism under either the ATIA or the PA by which a third party can draw the court's attention to an intended disclosure of personal information in violation of section 19 ATIA, and by which it can seek an effective remedy on behalf of others whose privacy is at stake.
- A reviewing court is in a position to prevent harm from being committed and the statutory scheme imposes no legal barrier to prevent the court from intervening. An interpretation of section 44 that forces an individual to wait until the personal information is disclosed and the damage is done, or that imposes an onerous burden on the person seeking to avert the harm, fails to give proper content to the right to privacy and also fails to satisfy the clear legislative goals underlying the ATIA and the PA. A narrow interpretation of section 44 would weaken the protection of personal information and dilute the right to privacy.
- Although a review under s. 44 ATIA is triggered by a third party's right to notice where requested records may contain third party information, Parliament's failure to provide a similar notice where personal information is involved does not indicate that the legislature intended that s.19 should be unavailable on a s. 44 review.
- The right to notice accorded to third parties follows logically from the specific nature of the third party information exemption and does not limit the right of review provided for in section 44.
- First, in the case of third party information, the assistance of the third party is necessary for the government institution to know how, or if, the third party treated the information as confidential information.
- Second, the mandatory nature of section 19 precludes the need for a notice provision.
- Under the ATIA, notice is a right intended to enable a party to contest the release of information and is therefore required only where the statute contemplates the possibility of making information public, as is the case with third party information under section 20(1).
- In the specific circumstances in which the ATIA does authorize the disclosure of personal information, a notice provision is either superfluous or has in fact been provided for in the legislative scheme (s. 8(5) PA). Given the underlying presumption that personal information will not be disclosed as well as the paramount importance of individual privacy, it would be absurd not to allow third parties to use the mechanism provided for by the legislature to prevent a violation of the spirit and the letter of the ATIA and the PA. Allowing the company to raise the section 19 exemption on a section 44 review does not create a "second tier" of third parties, but allows the only third party who has access to section 44 to use this remedy to prevent harm from occurring needlessly.

Information Commissioner of Canada v. Commissioner of the RCMP

2003 SCC 8

Supreme Court of Canada

Date of Decision: March 6, 2003

Sections(s): ATIA: s. 2(1), 19(1), 41, 42, 49
PA: s. 3(b), (j)

Origin

Appeal from the decision of the Federal Court of Appeal which confirmed the lower court decision that that only information related to a public servant's current position or a former public servant's last position needed to be released.

Issues

Did the records sought contain "personal information"?
If so, is the information excluded from the definition under paragraph 3(j) PA?

Facts

An individual requested certain information from the RCMP pertaining to four of its officers. The RCMP refused to disclose the information on the grounds that the records contained "personal information", as defined by s. 3 PA, and therefore were exempt from disclosure under s. 19(1) ATIA.

A complaint was made to the Information Commissioner (IC), who investigated. During the investigation, the RCMP informed the IC that it would release the current postings and positions of the four serving RCMP members and the last posting and position of the one retired RCMP member. However, the RCMP maintained its position that the remaining information was "personal information" and exempt from disclosure.

The IC found that the information relating to the previous RCMP postings of the four officers,, and other job-related information in the relevant records, did not constitute "personal information". The IC recommended that the RCMP disclose the list of the officers' historical postings, their status and date; the list of ranks and the dates they achieved those ranks; their years of service; and their anniversary date of service. The RCMP indicated that it would not follow the IC's recommendation. The IC applied to the Federal Court (Trial Division) (FCTD), for an order directing the RCMP to disclose the records or portions thereof which do not qualify for exemption from disclosure under s. 19(1) ATIA.

The FCTD held that only information related to a public servant's current position or a former public servant's last position needed to be released.

The Federal Court of Appeal upheld that decision.

Decision

The Supreme Court of Canada allowed the appeal. In other words, it disagreed with the lower court rulings.

Reasons

Did the requested records contain "personal information" under section 19(1) ATIA?
The information sought regarding the four RCMP members is "information about an identifiable individual", and therefore "personal information" within the meaning of s. 3 PA. There is also no doubt that the requested information relates to employment history and falls within the scope of s. 3 (b) of the definition of "personal information" . The information requested is exactly the type of information that a reasonable person in a working environment would likely characterize as employment history.
If so, is the information excluded from the definition under paragraph 3(j) PA?
- This information falls under the exemption provided in paragraph. 3(j) exception for "personal information". Paragraph 3(j) PA is retroactive in nature and there is no reason to impose a time restriction on its scope. The list of examples provided in para. 3(j) is not exhaustive and certainly does not limit the application of the introductory paragraph to the current position held by an employee or to the last position occupied by an employee now retired.
- Nevertheless, paragraph 3(j) PA does have a specified scope, as the information must be related to the position or functions held by a federal employee. This will exclude information relating, for example, to the competence and characteristics of the employee. This paragraph should apply only when the information requested is sufficiently related to the general characteristics associated with the positions or functions held by an officer or employee of a federal institution. It is both artificial and unhelpful to attempt to distinguish between "information about the person" and "information about the position or functions".
- Para. 3(j) PA applies when the information – which is always linked to the individual – is directly related to the general characteristics associated with the position or functions held by an employee, without the objective or subjective nature of that information being determinative.

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.

3430901 Canada Inc. and Telezone Inc. v. Canada

(Minister of Industry)

[2002] 1 F.C. 421

Federal Court of Appeal

Date of Decision: August 29, 2001

Sections(s): Sections 21(1), (2), 48 and 49 ATIA

Origin

Appeal from the Federal Court decision dismissing application for judicial review.

Issues

Were the weightings initially assigned to the criteria on which the discretionary award of the licensees was based, properly characterised as "advice or recommendations", or as the factual basis of the conclusions of the officials who assessed the applications?
When the Minister rejected some of those weightings and directed a reassessment in the light of the weightings approved by the Minister, did those final weightings cease to be "advice or recommendations" and become, instead, the basis or reasons for the decision?
If the weightings were properly characterised at all material times as "advice or recommendations", was the burden of establishing that the institutional head lawfully exercised the statutory discretion to disclose them borne by the person seeking disclosure or by the head of the government institution?

Facts

In response to a general invitation, Telezone Inc. and its successor, 3430901 Canada Inc., applied to the Minister of Industry for a licence to provide personal communications services, principally wireless telephone services. Four licences were issued, but not to Telezone.

Telezone made an ATIA request to Industry Canada to disclose information about the above decision-making process. The request was in large part refused, on the ground that the material sought was exempted under section 21 ATIA.

Telezone complained to the Information Commissioner (IC) who investigated and recommended that most of the information and records sought by Telezone should be disclosed.

The Minister then made further disclosures but continued to withhold some of the material requested, particularly that relating to the weight assigned to the various criteria by which licence applications had been assessed.

Both Telezone and the IC applied for judicial review. The Federal Court (Trial Division) dismissed both applications.

Decision

The Federal Court of Appeal also dismissed both appeals.

Reasons

Issue 1: Advice and recommendations

The Court stated that statutory exemptions need to be interpreted in light of both the purpose of the Act and the countervailing values that underlie the exemptions relied on, especially, in regard to para. 21(1)(a), the preservation of a full and frank flow of interchanges among public officials participating in the decision-making process.

In the Court's opinion, the Minister's interpretation of the scope of the statutory exemption to the duty to disclose was reviewable on a standard of correctness. The FCA referred to Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 and Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

The question now is: Were the weightings initially assigned to the criteria on which the discretionary award of the licences was based, properly characterised as "advice and recommendations", or as the factual basis of the conclusions of the officials who assessed the applications?

The Court expressed the opinion that by exempting "advice and recommendations" from disclosure, Parliament must have intended the former to have a broader meaning than the latter, otherwise it would be redundant.

The Court offered the following definition of the word "advice":

I would include within the word "advice", an expression of opinion on policy-related matters, but exclude information of a largely factual nature […]

Considering each type of documents in issue, the Court opined that:

Weightings of the working group

The content of the weightings of the working group is predominantly normative rather than factual, bringing them under the rationales underlying para. 21(1)(a). In the Court's view, this conclusion is not affected by the fact that the working group was implicitly, rather then expressly, advising the Minister.r>
The Minister was correct to treat as falling within para. 21(1)(a) any records or parts of records emanating from the working group and selection panel that contain the percentages ascribed by the working group to the various evaluative criteria, the descriptions of the criteria that have not been disclosed by the Minister, and the numerical scoring of Telezone's application.
Uncommunicated advice

A record otherwise falling within the category of "advice", still contains advice even if it was only intended to assist participants in the decision-making process to formulate the advice or recommendations that they would ultimately give to the final decision-maker. The Court found that records containing personal notes made by a member of the working group in preparation for the meeting of the group contained "advice" as they formed an integral part of the process by which policy advice was developed.
Inconclusive advice

By using both words "advice and recommendations" in para. 21(1)(a), Parliament clearly indicated that records that do not contain " recommendations" may still fall within the exemption.r>
Therefore, a document to the Minister stating that something needs to be decided, identifying the most salient aspects of an application, containing policy options, implicitly contains the writer's view of what the Minister should do or how the Minister should view a matter. All are normative in nature and are an integral part of an institutional decision-making process. Paragraph 21(1)(a) could be available.
Final weightings

The final weightings were prepared for the purpose of assisting the Minister to make a decision and this information is undoubtedly "advice" pursuant to para. 21(1)(a).

Issue 2: Interpretation and application of para. 21(2)(a)

When the Minister rejected some of those weightings and directed a reassessment in the light of the weightings approved by the Minister, did those final weightings cease to be "advice and recommendations" and become, instead, the basis or reasons for the decision?

In para. 21(2)(a), Parliament has expressly provided that a record otherwise falling within para. 21(1)(a) must be disclosed if it contains a statement of reasons for a decision that affects the rights of a person. It is not open to the courts to expend the scope of para. 21(2)(a) by applying it to a document that contains a statement of the reasons for a discretionary decision that does not affect the rights of a person.

Telezone had no legal right to be awarded a discretionary licence, it therefore can not be said that it had any rights that were adversely affected by the decision.

The Court added further that para. 21(2)(a) does not remove from the ambit of para. 21(1)(a) a record otherwise exempt from disclosure because it contains "advice".

The information was prepared for the purpose of assisting the Minister to make a decision and was advice pursuant to para. 21(1)(a). The Court confirmed the position of the Trial Division.

Issue 3: Review and remedy of exercise of Minister's discretion

The Court of Appeal, relying on Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, agreed with the Trial Division's conclusion that the burden of proof was on the appellants to establish that the Minister had failed to exercise according to law the statutory discretion to disclose the documents containing advice and recommendations within the meaning of para. 21(1)(a).

Since the ATIA leaves the disclosure of records falling within para. 21(1)(a) to the discretion of the Minister, and imposes no express limitations on its exercise, it is not for the Court to substitute its view for that of the Minister on how the discretion should be exercised. The Court referred to Canadian Council of Christian Charities v. Canada (Minister of Finance), [1999] 4 F.C. 245 (T.D.), Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147 (F.C.T.D.) and Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403.

However, the Court relying on Baker (supra) considers the Minister's exercise of discretion under para. 21(1)(a) subject to review for bad faith, breach of natural justice, relevancy of the considerations relied on by the decision-maker as these three criteria are described in the Supreme Court decision in Dagg but as well for unreasonableness simpliciter.

The Court before examining the reasons for the Minister's refusal and the sufficiency of these reasons said the following:

I am willing to assume for the purpose of this appeal, but need not decide, that Industry Canada was obliged to provide reasons for its discretionary refusal to disclose the documents requested by Telezone and the Information Commissioner. The question is whether that duty has been discharged.

In view of the flexibility of the content of the duty to provide reasons that the Court mandated in Baker (supra), the FCA accepted internal documents of Industry Canada as well as documents written by departmental officers to Telezone and the IC as reasons for the refusal.

Finally, the Court is prepared to infer from the materials and from ongoing disclosures that the respondent balanced the competing interests. The reasons for the refusal to disclose the exempt documents were adequate and the appellants had failed to establish that the Minister's discretion has been exercised unlawfully.

Canadian Council of Christian Charities v. Minister of Finance

[1999] F.C.J. No. 771

Federal Court of Canada

Date of Decision: May 19, 1999

Sections(s): Section 21(a), (b), 41 Access to Information Act (ATIA)

Origin

Section 41 ATIA application for judicial review of Minister of Finance's decision refusing to release certain records relating to the interpretation of "religious order"

Issues

Whether the records are exempt from disclosure on the basis of paragraphs 21(1)(a) and (b) ATIA?

Facts

The Council made an ATIA request to the Minister of Finance for all materials in the possession of the Department relating to the interpretation of the term "religious order", one of the terms defining the scope of the entitlement to the "clergy residence" deduction under the Income Tax Act.

The Minister identified more than 150 pages of material falling within this request, but advised the Council that nearly all of it would be withheld under specified statutory exemptions (e.g., para. 18(d), 21(1) (a), (b), 23, 24(1) ATIA.

The Council complained and the Information Commissioner who investigated and concluded that the Minister had disclosed all the material covered by the Council's request that it was proper to disclose. The Council then applied to the Court for a review of the Minister's decision.

Decision

The application for judicial review is granted with respect to the decision not to disclose the records in question. The Minister is ordered to disclose the withheld material that does not fall within the scope of any of the statutory exceptions.

Reasons

The Federal Court stated the following regarding section 21 ATIA:

Despite the importance of governmental openness as a safeguard against the abuse of power, and as a necessary condition for democratic accountability, it is equally clear that governments must be allowed a measure of confidentiality in the policy-making process. To permit or to require the disclosure of advice given by officials, either to other officials or to Ministers, and the disclosure of confidential deliberations within the public service on policy options, would erode government's ability to formulate and to justify its policies.
It would be an intolerable burden to force Ministers and their advisors to disclose to public scrutiny the internal evolution of the policies ultimately adopted. Disclosure of such material would often reveal that the policy-making process included false starts, blind alleys, wrong turns, changes of mind, the solicitation and rejection of advice, and the re-evaluation of priorities and the re-weighing of the relative importance of the relevant factors as a problem is studied more closely. In the hands of journalists or political opponents this is combustible material liable to fuel a fire that could quickly destroy governmental credibility and effectiveness.
It is difficult to avoid the conclusion that the combined effect of paragraphs 21(1)(a) and (b) is to exempt from disclosure under the Act a very wide range of documents generated in the internal policy processes of a government institution. Documents containing information of a factual or statistical nature, or providing an explanation of the background to a current policy or legislative provision, may not fall within these broad terms. However, most internal documents that analyse a problem, starting with an initial identification of a problem, then canvassing a range of solutions, and ending with specific recommendations for change, are likely to be caught within paragraph (a) or (b) of subsection 21(1).
The Act thus leaves to the heads of government institutions, subject to review and recommendations by the Information Commissioner, the discretion to decide which of the broad range of documents that fall within these paragraphs can be disclosed without damage to the effectiveness of government. There is very little role for the Court in overseeing the exercise of this discretion.

Info Source Bulletin Number 31A - Court Case Summaries

Privacy Act and Access to Information Act

Bulletin Number 31A Court Case Summaries

Table of Contents

Foreword

A. Information about the Government of Canada

B. Canada Web Site

C. About Info Source

D. Roles and Responsibilities

E. Additional Information

Index of Federal Court Cases

Federal Court Cases

Information Commissioner of Canada and the Minister of National Defence; Information Commissioner and the Prime Minister of Canada; Information Commissioner and the Commissioner of the RCMP; Information Commissioner and the Minister of Transport

Federal Court of Canada

2008 FC 766

Origin

Facts

Decision

Reasons

Mike Gordon v. Minister of Health and Privacy Commissioner (Intervener)

2008 FC 258

Federal Court (Trial Division)

Origin

Issues

Facts

Decision

Reasons

Canadian Imperial Bank of Commerce v. Canada (Canadian Human Rights Commission)

2007 FCA 272

Federal Court of Appeal

Origin

Facts

Decision

Reasons

Dagg v. Canada (Minister of Finance)

[1997] 2 S.C.R. 403

Supreme Court of Canada

Origin

Issues

Facts

Decision

Reasons

Information Commissioner v. Canada (Minister of Environment) (Ethyl)

Federal Court

Origin

Facts

Decision

Reasons

Merck Frosst Canada Ltée v. Minister of Health

2006 FC 1201

Federal Court

Origin

Issues

Facts

Decision

Reasons

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

Origin

Issues

Facts

Decision

Reasons

H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General)

2006 SCC 13

Supreme Court of Canada

Origin

Issue

Facts

Decision

Reasons

Information Commissioner of Canada v. Commissioner of the RCMP

2003 SCC 8

Supreme Court of Canada

Origin

Issues

Facts

Decision

Reasons

Privacy Act

and

Access to Information Act

Bulletin Number 31A
Court Case Summaries