[2001] 3 F.C. 70
A-820-99
2001 FCA 56
The Information Commissioner of Canada (Appellant)
v.
The Commissioner of the Royal Canadian Mounted Police (Respondent)
and
The Privacy Commissioner of Canada (Intervener)
Indexed as: Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police) (C.A.)
Court of Appeal, Décary, Létourneau and Noël JJ.A. —Ottawa, February 21 and March 13, 2001.
Access to Information — Citizen requesting information on four RCMP members — Request denied as information sought exempt from disclosure under Access to Information Act, s. 19(1) — After citizen complained to Information Commissioner, RCMP agreed to release current postings, positions of four members but refused to give information on officers’ previous postings — Under Access to Information Act, s. 19, government institution must disclose, refuse to disclose record containing personal information — Motions Judge reviewing refusal to disclose has power to ensure proper implementation of Act — No evidence of bad faith, obstruction, improper motives justifying Motions Judge to impose safeguards — Demand objectionable as about specific individuals’ employment history, not current, specific past position.
Privacy — RCMP refusing to release information on officers’ previous postings as personal information exempt from disclosure under Privacy Act, s. 3(b) — Government institution in better position than Court to make initial balancing of privacy against public interest in disclosure — Act, s. 3(b) aimed at protecting from disclosure individual’s employment history — Individual privacy fundamental right attracting constitutional protection — Motions Judge wrong in finding exception in Act, s. 3(j) limited to positions currently held — Request about individual’s position must be specific as to time, scope, place — Request herein objectionable as requiring individuals’ employment history.
RCMP — Citizen requesting information on four Force members regarding list of postings with dates, public complaints against them, name and address for service of members who served at particular detachment in 1986 — RCMP taking position information exempt from disclosure under Access to Information Act, s. 19(1) — Whether within exception to definition of “personal information” in Privacy Act, s. 3(j) — Whether should be released in public interest even if personal information — F.C.T.D. Judge did not err in remitting case to RCMP Commissioner for balancing of interests — Request regarding individual’s past positions must be specific, not fishing expedition to learn all positions held during career.
In 1998, a citizen requested from the RCMP information on four of its members regarding a list of postings, including dates, occupied by them, copies of all public complaints filed against them, as well as names and addresses for service of members who served at a particular detachment in Nova Scotia in 1986. After the citizen complained to the Information Commissioner, the RCMP indicated its willingness to release the current postings and positions of the four members. However, it refused to release information as to the officers’ previous postings on the ground that it was personal information exempt from disclosure under paragraph 3(b) of the Privacy Act. This was an appeal from a Trial Division decision rejecting the Information Commissioner’s conclusion that the requested information fell within the exception to the definition of personal information to paragraph 3(j) of the Privacy Act. The Motions Judge did, however, rule that the RCMP Commissioner should have determined whether the information was nevertheless to be released in the public interest and returned the matter to the Commissioner, ordering that he exercise his subsection 19(2) discretionary power. Two issues were raised on appeal: (1) whether the Motions Judge should have himself exercised the discretionary power found in subsection 19(2) of the Access to Information Act, and (2) whether the Motions Judge erred in concluding that subparagraph 3(j)(i) of the Privacy Act and subsection 19(1) of the Access to Information Act exempt from disclosure past positions of an employee of a government institution.
Held, the appeal should be dismissed.
(1) Under section 19 of the Access to Information Act, it is the head of a government institution who must decide whether to disclose or refuse to disclose a record which contains personal information. The government institution is in a better position than the Court to make the initial determination as to privacy as well as the initial balancing of the privacy interest against the public interest in disclosure. The mere fact that the government institution may be adverse in interest to the requesting party and, therefore, adverse to disclosure is not sufficient to divest it of the exercise of the discretionary power contained in subsection 19(2). The Motions Judge reviewing a refusal to disclose possesses the power, under section 49 of the Access to Information Act, to make such order to ensure due respect for, and proper implementation of, that Act. There was no evidence of bad faith, oblique or improper motives which could have justified the Motions Judge in imposing safeguards against the purposes of the legislation being thwarted by an obstructive and uncooperative government institution. There was no error in the decision to refer the matter back to the RCMP Commissioner for an initial balancing of the public interest against an invasion of privacy resulting from disclosure of personal information.
(2) The purpose of paragraph 3(b) of the Privacy Act is to protect from disclosure the “employment history” of an individual. The exception in paragraph 3(j) of the Act should be construed in a way which does not allow for the disclosure of an individual’s “employment history”. There is a fine line which separates the principle from the exception and which is hard to draw in the abstract, especially as the expression “employment history” is undefined. Individual privacy is a fundamental right which has attracted constitutional protection. The definition of “personal information” in section 3(j) of the Act is very broad, which militates against giving to the exception in paragraph 3(j) broad interpretation. Paragraph 3(j) authorizes the release of information about an individual’s position, whether current or past, and is not limited, as the Motions Judge found, to positions currently held. A request about a named individual’s position has to be specific as to time, scope and place. It cannot be a fishing expedition about all or numerous positions occupied by an individual within the Government over the span of his employment. The request herein was objectionable as it required information on specific individuals’ employment history, not a current or a specific past position.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, ss. 19, 49.
Privacy Act, R.S.C., 1985, c. P-21, ss. 3 “personal information”, 8(2)(m).
CASES JUDICIALLY CONSIDERED
APPLIED:
Kelly v. Canada (Solicitor General) (1992), 6 Admin. L.R. (2d) 54; 53 F.T.R. 147 (F.C.T.D.); Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403; (1997), 148 D.L.R. (4th) 385; 46 Admin. L.R. (2d) 155; 213 N.R. 161.
REFERRED TO:
Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (1988), 32 Admin. L.R. 103; 20 F.T.R. 314 (T.D.).
APPEAL from a Trial Division decision ((1999), 179 F.T.R. 75) rejecting the Information Commissioner’s conclusion that requested information fell within the exception to the definition of “personal information” in paragraph 3(j) of the Privacy Act. Appeal dismissed.
APPEARANCES:
Daniel Brunet and Karen L. Rudner for appellant.
Christopher M. Rupar and Susanne G. Pereira for respondent.
Dougald E. Brown and Steven J. Welchner for intervener.
SOLICITORS OF RECORD:
Office of the Information Commissioner, Ottawa, for appellant.
Deputy Attorney General of Canada for respondent.
Nelligan O’Brien Payne LLP, Ottawa, for intervener.
The following are the reasons for judgment rendered in English by
[1] Létourneau J.A.: This appeal raises two issues:
(a) Did the Motions Judge [(1999), 179 F.T.R. 75] err when he concluded that subparagraph 3(j)(i) of the Privacy Act, R.S.C., 1985, c. P-21 and subsection 19(1) of the Access to Information Act, R.S.C., 1985, c. A-1, authorize only the disclosure of a public servant’s current position or the position last held by a former public servant and, therefore, prohibit the disclosure of past positions?
(b) Should the Motions Judge, after having concluded that the information was protected, have proceeded to assess under subparagraph 8(2)(m)(i) of the Privacy Act whether the public interest in disclosure clearly outweighed any invasion of privacy that could result from the disclosure?
I will dispose of the second issue first. But before I do, I need to summarize the relevant facts for a better understanding of these issues.
Facts and procedure
[2] A Canadian citizen requested from the Royal Canadian Mounted Police (RCMP), on June 4, 1998, the following information relating to four members of that police force:
List of communities of postings, including dates, occupied by the following Royal Canadian Mounted Police officers:
(1) Cst/Acting Corporal Robert Shedden, Wells Detachment, BC;
(2) S/Sgt Kenneth Craig, NCO, Quesnel Detachment, BC;
(3) Corporal Bob Zimmerman, Quesnel Detachment, BC; and
(4) S/Sgt Larry Ronald Wendell, Advisory NCO North Division, Williams Lake.
Copies of all public complaints filed against each of the above individuals; and
Name and address for service of member or former member who served as NCO IC/Royal Canadian Mounted Police detachment Baddeck, Nova Scotia in August 1986.
[3] The Access to Information co-ordinator at the RCMP alleged that the requested information was exempt from disclosure pursuant to subsection 19(1) of the Access to Information Act and refused to release it. It is a convenient place to reproduce that subsection along with the relevant portions of section 3 of the Privacy Act which defines “personal information”:
Access to Information Act
19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.
Privacy Act
3. In this Act,
…
“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
(a) information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual,
(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
…
but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include
(j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,
(i) the fact that the individual is or was an officer or employee of the government institution,
(ii) the title, business address and telephone number of the individual,
(iii) the classification, salary range and responsibilities of the position held by the individual,
(iv) the name of the individual on a document prepared by the individual in the course of employment, and
(v) the personal opinions or views of the individual given in the course of employment. [My underlining.]
[4] The citizen complained to the Information Commissioner who informed the RCMP of his willingness to undertake an investigation. After discussions, the RCMP indicated that it was prepared to release, and did release, the current postings and positions of the four RCMP members as well as the last position and posting of the RCMP officer who served in Baddeck, Nova Scotia, prior to retirement in 1986. However, the RCMP refused to release information as to the officers’ previous postings on the ground that that information related to the employment history of these individuals and, therefore, was, pursuant to paragraph 3(b), personal information exempt from disclosure.
[5] In the report of his investigative findings to the RCMP Commissioner, the Information Commissioner concluded that the information in issue was not protected from disclosure under paragraph 3(j) of the Privacy Act. He, therefore, recommended that the RCMP release with respect to the officers:
(a) the list of historical postings, their status and date;
(b) the list of ranks, the dates they achieved these ranks, their effective date/year;
(c) their years of service; and
(d) their anniversary date of service.
[6] Pursuant to a refusal by the RCMP to follow the recommendation and a discussion with the complainant, the Information Commissioner, with the proper authorization of the complainant, applied to the Trial Division of this Court for a review of the refusal to disclose the information as recommended.
[7] The learned Judge of the Trial Division dismissed the Information Commissioner’s claim that the requested information fell within the exception to the definition of personal information in paragraph 3(j) of the Privacy Act. In other words, he was of the view that the information sought was personal information exempt from disclosure.
[8] However, the Judge was satisfied that the RCMP Commissioner had failed to determine, pursuant to subsection 19(2) of the Access to Information Act and subparagraph 8(2)(m)(i) of the Privacy Act, whether the requested information, although personal information, should not be released in the public interest. The combined effect of these two provisions hereinafter reproduced is to permit the disclosure of the information if the public interest in disclosure outweighs any invasion of privacy that could result from the disclosure:
Access to Information Act
19. (1) ….
(2) The head of a government institution may disclose any record requested under this Act that contains personal information if
(a) the individual to whom it relates consents to the disclosure;
(b) the information is publicly available; or
(c) the disclosure is in accordance with section 8 of the Privacy Act.
Privacy Act
8. (1) …
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
…
(m) for any purpose where, in the opinion of the head of the institution,
(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
(ii) disclosure would clearly benefit the individual to whom the information relates.
[9] He then sent the matter back to the RCMP Commissioner ordering him to exercise the discretionary power conferred upon him by subsection 19(2). The Information Commissioner appealed against the decision of the Motions Judge and the two issues previously stated are before us for determination.
Whether the Motions Judge should have himself proceeded to exercise the discretionary power found in subsection 19(2) of the Access to Information Act
[10] A careful reading of section 19 of the Access to Information Act clearly indicates that it is the head of a government institution who must, pursuant to subsection 19(1), refuse the disclosure of a record which contains personal information, and that it is also the head of a government institution who, pursuant to subsection 19(2), may disclose that record if, in his opinion, the conditions of subparagraph 8(2)(m)(i) are met. This understanding of the functioning of the Act, elaborated by Strayer J. (as he then was) in Kelly v. Canada (Solicitor General) (1992), 6 Admin. L.R. (2d) 54 (F.C.T.D.), at page 58, was approved by La Forest J. of the Supreme Court of Canada in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at pages 457-458 in the following terms:
In Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147, Strayer J. discussed the general approach to be taken with respect to discretionary exemptions under the Privacy Act. He stated, at p. 149:
It will be seen that these exemptions require two decisions by the head of an institution: first, a factual determination as to whether the material comes within the description of material potentially subject to being withheld from disclosure; and second, a discretionary decision as to whether that material should nevertheless be disclosed.
The first type of factual decision is one which, I believe, the court can review and in respect of which it can substitute its own conclusion. This is subject to the need, I believe, for a measure of deference to the decisions of those whose institutional responsibilities put them in a better position to judge the matter….
The second type of decision is purely discretionary. In my view in reviewing such a decision the court should not itself attempt to exercise the discretion de novo but should look at the document in question and the surrounding circumstances and simply consider whether the discretion appears to have been exercised in good faith and for some reason which is rationally connected to the purpose for which the discretion was granted.
In my view, this is the correct approach to reviewing the exercise of discretion under s. 8(2)(m)(i) of the Privacy Act.
[11] From a purely practical point of view, this approach taken by Parliament is sensible. The government institution is in possession of the records. It deals regularly with numerous access to information requests. It develops some expertise in the handling of these matters as well as in the implementation of the Act. It is in a better position than the Court to make the initial determination as to privacy as well as the initial balancing of the privacy interest against the public interest which includes the needs of the institution.
[12] The appellant submits, however, that there are unusual cases, like the one before us, where it would be inappropriate for the Judge to refer the matter back to the government institution to make the assessment under subparagraph 8(2)(m)(i) because the institution is adverse in interest to the requesting party and has a clear interest in withholding the information. Counsel for the appellant submitted that, in such cases, the Motions Judge should either decide the issue himself or, if he refers the matter back to the institution, maintain a supervisory function over the file to ensure that an adequate assessment of the issue is made under subparagraph 8(2)(m)(i).
[13] I do not think that the mere fact that the government institution may be adverse in interest to the requesting party and, therefore, adverse to disclosure is sufficient to divest it of the exercise of the discretionary power contained in subsection 19(2). If this were the criterion, the government institution should also be deprived of the authority under subsection 19(1) to make the initial determination as to the propriety of disclosing or not the requested record.
[14] Having said that, I can conceive of instances where evidence of bad faith or oblique or improper motives could be adduced which could satisfy a motions judge that guarantees and safeguards are required to ensure that both the purposes of the Access to Information Act and subparagraph 8(2)(m)(i) of the Privacy Act are not defeated by an obstructive and uncooperative government institution. The Motions Judge reviewing a refusal to disclose possesses the power, pursuant to section 49 of the Access to Information Act, to make such order as he deems appropriate to ensure what is in fact due respect for and proper implementation of that Act. This is why he issued an order referring the matter back to the RCMP Commissioner for a consideration of the exception in subparagraph 8(2)(m)(i). He also has inherent jurisdiction when issuing an order to impose conditions or take measures likely to ensure its implementation. I am not willing at this stage to rule out the possibility that, in an appropriate case, a judge could retain jurisdiction over the case to ensure proper compliance in a timely and satisfactory fashion with his order referring a matter back to a government institution for an assessment under subparagraph 8(2)(m)(i) of the Privacy Act.
[15] In the same vein, I can conceive of a rare instance where the behaviour and attitude of the institution would have been such throughout as to indicate a foregone conclusion if the matter were referred back and where it would be a sheer waste of time and money to issue an order to that effect. Nothing would prevent a motions judge in such an instance from inferring that the discretion has been exercised and disclosure denied, and from proceeding to review the exercise of that discretion. But this is not our case.
[16] In the case at bar, there is no evidence of bad faith, obstruction or improper motives which could have justified the imposition of safeguards by the Motions Judge. In addition, no request for a special order under section 49 or an order assorted with conditions was made to him. I can see no error in the decision of the Judge to refer the matter to the RCMP Commissioner for an initial balancing of the public interest against an invasion of privacy resulting from disclosure of personal information.
Whether the Motions Judge erred in concluding that subparagraph 3(j)(i) of the Privacy Act and subsection 19(1) of the Access to Information Act exempt from disclosure past positions of an employee of a government institution
[17] The proper scope of paragraph 3(j) and subparagraph 3(j)(i) has given rise before us to an interesting debate. The Information Commissioner takes an expansive view of the exception found in paragraph 3(j) to justify the release of the requested information. I must say that, taken to its limit, the approach of the Information Commissioner could defeat the purpose of paragraph 3(b) which aims at protecting from disclosure the “employment history” of an individual.
[18] The RCMP Commissioner submitted that the exception in paragraph 3(j) ought to be interpreted restrictively and that that interpretation justified his refusal to release the past positions or functions of the officers named in the request. Alternatively, his counsel indicated to us that he would be willing to accept the interpretation proposed by the intervener, the Privacy Commissioner.
[19] The position of the Privacy Commissioner is interesting and, with respect, I think is the approach which best attains and implements the respective purposes of the Privacy Act and the Access to Information Act. He submits, and I agree, that the exception should be construed in a way which does not allow for the disclosure of an individual’s “employment history”. Having said that, I confess that it is not and will not always be easy to determine when a request for an information about an individual’s position as authorized by paragraph 3(j) ceased to be so to become a request about that individual’s “employment history”. There is a fine line which separates the principle from the exception and which is hard to draw in the abstract, especially as the expression “employment history” is undefined.
[20] Individual privacy is a fundamental right which has attracted constitutional protection. The definition of “personal information” in section 3 of the Privacy Act is extremely broad and, as the Supreme Court said in Dagg, at page 436, paragraph 69, endorsing a finding to that effect by Jerome A.C.J. in Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.), at page 551 (T.D.), is “entirely consistent with the great pains that have been taken to safeguard individual identity”. This certainly militates against giving to the exception in paragraph 3(j) a broad interpretation of the kind suggested by the Information Commissioner which, in the end, will or is likely to empty the definition of “personal information” of its contents with respect to “employment history”.
[21] I believe, however, that paragraph 3(j) authorizes the release of information about an individual’s position, whether current or past, and is not limited, as the Motions Judge found, to positions currently held. Neither the purpose of the Act nor the wording of paragraph 3(j) or subparagraph 3(j)(i) require an interpretation that would restrict it to current positions. I see nothing in subparagraph 3(j)(i) which, as contended by the respondent, dictates that it be so limited. The subparagraph is merely concerned with establishing whether an individual was or still is an employee of the government. The very fact of employment, past or present, can be revealed and, indeed, is essential to a citizen in determining whether his request for disclosure is addressed to the appropriate authority and is worth pursuing.
[22] However, in contrast to a request about a position or a category of positions which may reveal the name of the incumbents, a request about a named individual’s position, especially in respect of the past positions held, has to be specific as to time, scope and place. It cannot be a fishing expedition about all or numerous positions occupied by an individual within the government over the span of his employment as it becomes, in fact, a request about that individual’s employment history. To use the words of La Forest J. in Dagg, at page 447, such a request, instead of being a request for information about positions which incidentally reveals the individuals who hold it, becomes a request for information relating primarily to individuals themselves. Therefore, for example, a citizen could properly ask whether John Doe worked for the Department of Justice in 1994, what position he held at that time, the duties and responsibilities of that position and where he exercised his functions. But he could not, without being properly opposed paragraph 3(b), request information about John Doe’s positions in the government between 1980 and 1994. Of course, between these two clear extremes there is a wide variety of requests about a named individual’s position which may be more or less specific and which would have to be addressed on their own merits in order to determine whether they fall into the principle of non disclosure or the exception.
[23] Applying these principles to the request in the present case, I can only come to the conclusion that the demand, when assessed in its totality and in relation to its primary focus, is about specific individuals’ employment history, not a current or a specific past position.
[24] First, it is not related to an individual’s position as the terms of the exception stipulate, but to his posting, i.e., his place of work. The fact that an individual may have been posted in Ottawa in 1997 does not indicate his functions or his position within the organization. Requiring the entire list of historical postings of an individual is nothing less than requiring, with respect to his place of work, part of his employment history.
[25] Second, the list of ranks and the dates these ranks were achieved also provide no indication as to the position held by the individuals. In addition, unlimited in time and unspecified as the request is, its primary focus becomes a search for personal information relating to these individuals. The same may be said of the demand to release their years of service and their anniversary date of service.
[26] After a careful consideration of the contents of the request for disclosure, the purposes of the Access to Information Act and the Privacy Act, their complementary roles and the binding interpretation given to them by the Supreme Court of Canada, I would dismiss this appeal with costs to the respondent.
Décary J.A.: I agree.
Noël J.A.: I agree.