Frezza v. Canada (National Defence)

Frezza v. Canada (National Defence)
Court (s) Database
Federal Court Decisions
Date
2014-01-13
Neutral citation
2014 FC 32
File numbers
T-1375-12
Decision Content
Date: 20140113
Docket: T-1375-12
Citation: 2014 FC 32
Ottawa, Ontario, January 13, 2014
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
JOHN MICHAEL JOSEPH FREZZA
Applicant
and
MINISTER OF NATIONAL DEFENCE CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application under section 41 of the Privacy Act, RSC, 1985, c P-21 [Act] for judicial review of two decisions of a delegate of the Minister of National Defence [Minister], dated 23 December 2010 and 5 January 2011, refusing access to certain personal information requested by the Applicant under subsection 12(1) of the Act.
BACKGROUND
[2] The Applicant was a civilian employee of the Department of National Defence [DND or the Department] whose employment was terminated under section 62 of the Public Service Employment Act, SC 2003, c 22, ss. 12, 13 near the end of his one-year probationary period. The Applicant worked in the Joint Personnel Support Unit / Integrated Personnel Support Centre [JPSU] in Toronto. Before becoming a civilian employee of DND, the Applicant performed an apparently similar job in Ottawa as a uniformed member of the Canadian Armed Forces, within the Directorate of Casualty Support Management [DCSM]. His performance reviews while “in uniform” in Ottawa were quite positive, but concerns arose with respect to his performance in Toronto, leading to the termination. The Applicant grieved his termination, as well as a management Memorandum of Expectations that preceded his dismissal, which he viewed as a form of disguised discipline. In pursuing these grievances, the Applicant filed several requests for access to information held by DND, including the two requests at issue in this proceeding.
[3] The requests at issue here were both filed under subsection 12(1) of the Act on December 1, 2010. They sought all documents relating to the Applicant’s dismissal that were held by two DND human resources [HR] professionals – a Labour Relations Officer [LRO] at the Department’s headquarters in Ottawa-Hull (Isabelle Tremblay), and a regional labour relations subject matter expert [SME] based in Toronto (Jackie Lean).
[4] The Applicant’s first request (P-2010-03965, or the Ottawa LRO request) was for:
All correspondence – notes, emails, Memo’s concerning “Rejection on Probation” of John Frezza AS4, JPSU S/Ontario held by Ms. Isabelle Tremblay (HR-CIV) DLRO Ottawa-Hull.
[5] This request was re-scoped on December 16, 2010 with the Applicant’s consent, in view of the fact that Ms. Tremblay was no longer working for DND when the request was received. The revised request was for:
All correspondence – notes, emails, Memo’s concerning “Rejection on Probation” of John Frezza AS4, JPSU S/Ontario previously held by former employee Ms. Isabelle Tremblay (HR-CIV) DLRO Ottawa-Hull.
[6] The Applicant’s second request (P-2010-03966, or the Toronto SME request), was for:
All correspondence – notes, emails, Memo’s concerning “Rejection on Probation of John Frezza AS4, JPSU S/Ontario held by Ms. Jackie Lean, Subject Matter Expert Labour Relations DCHRCS-Toronto
[7] With respect to the Toronto SME request, DND identified 29 pages of relevant documents, but initially declined to release all of these documents to the Applicant based on subsection 22(1)(b) of the Act, which provides an exemption from disclosure where it would be injurious either to the enforcement of a federal or provincial law or to the conduct of a lawful investigation. The Respondent’s evidence indicates that the latter was the justification here: the information was deemed to be related to a “labour investigation” in relation to the Applicant’s ongoing grievance. The Department sent the Applicant a letter on 23 December 2010 stating:
Please be advised that the documentation you requested is part of an ongoing grievance and as such has been exempted in its entirety under paragraph 22(1)(b) law enforcement and investigation of the Privacy Act. You may re-submit a new request once this administrative/grievance is completed.
[8] With respect to the Ottawa-Hull LRO request, DND responded by letter on 5 January 2011, advising the Applicant that “[f]ollowing a thorough and complete search for all records in response to your request, it is determined that no records could be located that were held by former employee Ms. Isabelle Tremblay.” DND e-mails submitted by the Respondent indicate that Ms. Tremblay’s e-mail account was erased upon her departure, and that a search of her former office and filing cabinets did not reveal any relevant documents.
[9] Dissatisfied with these responses, the Applicant complained to the Office of the Privacy Commissioner [OPC] on 5 January 2011 and 15 February 2011. In essence, these complaints alleged that DND had contravened the Act by refusing access to personal information related to the Applicant’s termination. The OPC assigned an investigator to look into the complaints.
[10] On 21 October 2011, following discussions with the OPC, DND released to the Applicant the 29 pages identified as relevant to the Toronto SME request [disclosure package], with some redactions. The redactions occur in a document titled “Third Level Grievance Report,” prepared by Human Resources Officer (Ontario Region) Lynn Greenwald and addressed to BGen Madower, Assistant CMP, NDHQ [National Defence Headquarters] as well as in a cover note prepared by SME Jackie Lean with respect to this report. While the record is not absolutely clear on this point, it seems that Brigadier General Madower was to hear the grievance at the third stage or level. The department claimed these redactions were justified under subsection 22(1)(b) of the Act, and also under section 26 of the Act, which was not cited when the documents were initially withheld. Section 26 provides an exemption from disclosure where the personal information requested relates to someone other than the requesting party.
[11] The Applicant alleges in this proceeding that the redactions contravene the Act by unlawfully withholding personal information from him. The un-redacted documents have been provided to the Court through a confidential affidavit filed by the Respondent, which is subject to a sealing order issued by Prothonotary Milczynski on 19 October 2012. A motion by the Applicant to unseal these documents was dismissed by Prothonotary Aalto on 17 September 2013.
[12] The OPC issued its Report of Findings on 1 June 2012 and sent it to both the Applicant and the Respondent.
[13] With respect to the Toronto SME request, the OPC report noted (erroneously it would appear) that the DND responded to the Applicant on 23 December 2010 by providing access to some information and withholding other information. The report stated that DND had re-examined its original position and provided additional information to the Applicant as a result of the investigation, but that some information continued to be withheld under subsection 22(1)(b) and section 26 of the Act.
[14] With respect to the redactions justified by reference to subsection 22(1)(b), the OPC noted that this was a discretionary exemption that allows a government institution to “refuse to disclose personal information if the release of that information could reasonably be expected to be injurious to the enforcement of any law of Canada or the conduct of lawful investigations.” The report stated that “[i]t has been established to our satisfaction that DND properly invoked this provision.” No further explanation was provided on this point.
[15] With respect to the single redaction justified with reference to section 26, the report stated that “Our review of the information at issue confirmed that the exempted information was not the complainant’s information, and, therefore, the exemption was properly applied.”
[16] In the “Findings” section, the OPC stated with respect to the Toronto SME request:
As the complainant did not initially receive access to all of the information to which he was entitled, the complaint is well-founded. However, now that additional information has been provided to the complainant, the matter is considered resolved.
[Emphasis in original]
[17] The Applicant requested clarification regarding the report’s finding that subsection 22(1)(b) was properly invoked, and specifically “the detailed references with regard to the notation of ‘any law of Canada and/or lawful investigations,’ as outlined in the findings.” The OPC responded on 22 June 2012 in a letter stating:
For purposes of clarity, we note that the Office arrived at this conclusion in light of the fact that there was an ongoing grievance procedure under the Public Service Relations Act at the time of the complainant’s Privacy Act request to National Defence.
[18] Documents submitted to the Court by the Applicant in conjunction with a motion for leave to amend his Application, submitted 11 September 2013 and refused by Prothonotary Aalto on 25 September 2013, show that the information that was redacted on the basis of subsection 22(1)(b) of the Act was released to the Applicant on 13 November 2012. This was after the Applicant’s Record in this matter was filed. In addition, correspondence from the Applicant to the Court of 16 September 2013, regarding the Applicant’s motion to unseal the confidential affidavit, states that the Applicant is now “knowledgeable of” the words redacted on the basis of section 26. The Respondent says this makes the application moot, as the Court is only empowered under section 41 of the Act to require the release of the information withheld, and the information at issue has now all been released. The Applicant says there are still important legal principles at stake and seeks other relief.
[19] With respect to the Ottawa LRO request, the OPC characterized the complaint as being one about missing information. The report notes that the LRO from whom documents were sought had left DND’s employ prior to the request being received, and that nothing was retained after she left. The OPC stated that the LRO’s role in such matters is to provide expert advice, guidance and interpretations to the regional SME – an involvement that was “only advisory and somewhat remote.” As such, the LRO may maintain a working file of correspondence for some cases, but does not necessarily do so for each case. Only when the grievance reaches the final level would the LRO have a file in their possession, and the grievance in this case was only at the first level. All correspondence and information would officially be held by the regional labour relations team, not the LRO, and “[t]his is why the LRO in this case did not have any documents relevant to the case.” The report notes, however, that those whom the LRO advised did retain “many emails that were sent to them,” and that the Applicant received information written by the LRO through other Privacy Act requests. The report states that “[t]he evidence is clear that a complete search was performed” and “[t]he evidence also demonstrates that the LRO simply did not have a file about the complainant because her role in this file was seen as advisory only.” The report goes on to observe, however:
Notwithstanding the fact that the LRO’s role may have been rather small, the Privacy Act is clear that information used as part of an administrative decision making process should be kept for a minimum of two years. We note that we cannot conclude that the information was used for an administrative purpose because the information had been destroyed and it could not be reviewed.
[20] In the “Findings” section, the report states with respect to the Ottawa LRO request:
Given that we cannot see the content of these emails, we conclude that the requested information did not exist at the time of the request. This complaint is then deemed not well-founded.
[Emphasis in original]
[21] In a section titled “Other,” the report goes on to state that the fact that information generated by the LRO was retained in files held by those she was advising “did not obfuscate the need for the LRO to ensure that any information about the complainant that was used for administrative purposes was kept.” The report notes that the OPC asked DND to amend its record-keeping practices to ensure retention of this type of information in the future, and DND agreed to examine its procedures, and in the meantime to retain emails and electronic records of departing staff for six months. The report stated that this was not long enough and requested DND to extend it to two years. It also requested that DND report back within 30 days to confirm if it had implemented this recommendation, and if not, to provide an explanation.
DECISION UNDER REVIEW
[22] The decisions under review are those of the Minister’s delegate, the Director, Access to Information at DND, in response to the Applicant’s access requests: see Leahy v Canada (Minister of Citizenship and Immigration), 2012 FCA 227 [Leahy] at para 84. As described above, in one case the Director refused access to certain personal information about the Applicant, and in the other the Director reported that no such information could be found responsive to the request. While the Applicant’s complaints to the OPC were a precondition to filing the current application, and the OPC’s report may inform the Court’s deliberations, that report is not the decision under review. The named respondent in this application is and ought to be the Minister.
[23] Section 41 of the Act states that a party who has been refused access to personal information “may… apply to the Court for a review of the matter.”
RELIEF SOUGHT
[24] As originally filed, the application sought the following forms of relief:
1. An order pursuant to section 49 of the Act that the Respondent disclose the requested records to the Applicant, as required by subsection 12(1) of the Act;
2. An order that the Respondent retain all records pertaining to the [Memorandum of Expectations] received by the Applicant on March 25, 2010 and subsequent termination of employment on May 31, 2010, until such time as all Court Proceedings have concluded, notwithstanding the recommendation of the Privacy Commissioner of Canada and section 7 of the Privacy Regulations, SOR/83-508;
3. The costs involved in this application;
4. An order imposing a seven day deadline for full disclosure and a penalty of $500.00 per day thereafter until full disclosure occurs;
5. Such other relief as the Applicant may advise and this Honourable Court may consider just and equitable in the circumstances.
ISSUES
[25] The following issues arise in this matter:
a. Is the application moot?
b. Did the Minister’s delegate act unlawfully or unreasonably in:
i. refusing access to personal information relating to the Applicant on the basis of subsection 22(1)(b) and section 26 of the Act?
ii. reporting that no information responsive to the Ottawa LRO request could be found, or failing to ensure the retention of information that would be responsive to that request? and
c. If the answer to part i. or ii. of issue b. above is yes, what remedies if any is the Court empowered to grant on this application?
[26] The Respondent has also asked the Court to strike this motion on the grounds that, because the Applicant is now in possession of all of the information he sought, there is no longer any issue to be litigated.
STANDARD OF REVIEW
[27] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[28] In Savard v Canada Post Corporation, 2008 FC 671, Justice Blanchard conducted a standard of review analysis in light of Dunsmuir, above. He found at para 17 that the Court’s review under section 41 of the Act is a two stage process. The first stage, looking at whether the information at issue is “personal information” or falls within a legal exception to disclosure, involves review on a standard of correctness (see also Thurlow v Canada (Solicitor General), 2003 FC 1414 at para 28). The second stage, involving the review of a discretionary decision to withhold information from disclosure, is to be conducted on a standard of reasonableness. This precedent was followed by Justice Kelen in Canadian Assn. of Elizabeth Fry Societies v Canada (Minister of Public Safety Canada), 2010 FC 470 at paras 45-46, and endorsed by the Federal Court of Appeal in Leahy, above, at paras 98-99, and I propose to follow it here as well. Thus, the question of whether the information at issue fell within the legal exceptions to disclosure set out in subsection 22(1)(b) and section 26 of the Act is reviewable on a standard of correctness, while the discretionary decision of the Minister’s delegate to invoke these exemptions in refusing to disclose the information is reviewable on a standard of reasonableness.
[29] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
STATUTORY PROVISIONS
[30] The following provisions of the Act are applicable in these proceedings:
Definitions
3. In this Act,
“administrative purpose”, in relation to the use of personal information about an individual, means the use of that information in a decision making process that directly affects that individual;
[…]
“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
[…]
(e) the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations,
[…]
(g) the views or opinions of another individual about the individual,
[…]
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,
[…]
(v) the personal opinions or views of the individual given in the course of employment,
[…]
Retention of personal information used for an administrative purpose
6. (1) Personal information that has been used by a government institution for an administrative purpose shall be retained by the institution for such period of time after it is so used as may be prescribed by regulation in order to ensure that the individual to whom it relates has a reasonable opportunity to obtain access to the information.
[…]
Right of access
12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act has a right to and shall, on request, be given access to
(a) any personal information about the individual contained in a personal information bank; and
(b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.
[…]
Findings and recommendations of Privacy Commissioner
35. (1) If, on investigating a complaint under this Act in respect of personal information, the Privacy Commissioner finds that the complaint is well-founded, the Commissioner shall provide the head of the government institution that has control of the personal information with a report containing
(a) the findings of the investigation and any recommendations that the Commissioner considers appropriate; and
(b) where appropriate, a request that, within a time specified therein, notice be given to the Commissioner of any action taken or proposed to be taken to implement the recommendations contained in the report or reasons why no such action has been or is proposed to be taken.
(2) The Privacy Commissioner shall, after investigating a complaint under this Act, report to the complainant the results of the investigation, but where a notice has been requested under paragraph (1)(b) no report shall be made under this subsection until the expiration of the time within which the notice is to be given to the Commissioner.
[…]
Review by Federal Court where access refused
41. Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
[…]
Burden of proof
47. In any proceedings before the Court arising from an application under section 41, 42 or 43, the burden of establishing that the head of a government institution is authorized to refuse to disclose personal information requested under subsection 12(1) or that a file should be included in a personal information bank designated as an exempt bank under section 18 shall be on the government institution concerned.
Order of Court where no authorization to refuse disclosure found
48. Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of a provision of this Act not referred to in section 49, the Court shall, if it determines that the head of the institution is not authorized under this Act to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.
Order of Court where reasonable grounds of injury not found
49. Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of section 20 or 21 or paragraph 22(1)(b) or (c) or 24(a), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate.
Définitions
3. Les définitions qui suivent s’appliquent à la présente loi.
« fins administratives » Destination de l’usage de renseignements personnels concernant un individu dans le cadre d’une décision le touchant directement.
[…]
« renseignements personnels » Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment :
[…]
e) ses opinions ou ses idées personnelles, à l’exclusion de celles qui portent sur un autre individu ou sur une proposition de subvention, de récompense ou de prix à octroyer à un autre individu par une institution fédérale, ou subdivision de celle-ci visée par règlement;
[…]
g) les idées ou opinions d’autrui sur lui;
[…]
toutefois, il demeure entendu que, pour l’application des articles 7, 8 et 26, et de l’article 19 de la Loi sur l’accès à l’information, les renseignements personnels ne comprennent pas les renseignements concernant :
j) un cadre ou employé, actuel ou ancien, d’une institution fédérale et portant sur son poste ou ses fonctions, notamment :
[…]
(v) les idées et opinions personnelles qu’il a exprimées au cours de son emploi;
[…]
Conservation des renseignements personnels utilisés à des fins administratives
6. (1) Les renseignements personnels utilisés par une institution fédérale à des fins administratives doivent être conservés après usage par l’institution pendant une période, déterminée par règlement, suffisamment longue pour permettre à l’individu qu’ils concernent d’exercer son droit d’accès à ces renseignements.
[…]
Droit d’accès
12. (1) Sous réserve des autres dispositions de la présente loi, tout citoyen canadien et tout résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés ont le droit de se faire communiquer sur demande :
a) les renseignements personnels le concernant et versés dans un fichier de renseignements personnels;
b) les autres renseignements personnels le concernant et relevant d’une institution fédérale, dans la mesure où il peut fournir sur leur localisation des indications suffisamment précises pour que l’institution fédérale puisse les retrouver sans problèmes sérieux.
[…]
Conclusions et recommandations du Commissaire à la protection de la vie privée
35. (1) Dans les cas où il conclut au bien-fondé d’une plainte portant sur des renseignements personnels, le Commissaire à la protection de la vie privée adresse au responsable de l’institution fédérale de qui relèvent les renseignements personnels un rapport où :
a) il présente les conclusions de son enquête ainsi que les recommandations qu’il juge indiquées;
b) il demande, s’il le juge à propos, au responsable de lui donner avis, dans un délai déterminé, soit des mesures prises ou envisagées pour la mise en oeuvre de ses recommandations, soit des motifs invoqués pour ne pas y donner suite.
(2) Le Commissaire à la protection de la vie privée rend compte au plaignant des conclusions de son enquête; toutefois, dans les cas prévus à l’alinéa (1)b), le Commissaire à la protection de la vie privée ne peut faire son compte rendu qu’après l’expiration du délai imparti au responsable de l’institution fédérale.
[…]
Révision par la Cour fédérale dans les cas de refus de communication
41. L’individu qui s’est vu refuser communication de renseignements personnels demandés en vertu du paragraphe 12(1) et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à la protection de la vie privée peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 35(2), exercer un recours en révision de la décision de refus devant la Cour. La Cour peut, avant ou après l’expiration du délai, le proroger ou en autoriser la prorogation.
[…]
Charge de la preuve
47. Dans les procédures découlant des recours prévus aux articles 41, 42 ou 43, la charge d’établir le bien-fondé du refus de communication de renseignements personnels ou le bien-fondé du versement de certains dossiers dans un fichier inconsultable classé comme tel en vertu de l’article 18 incombe à l’institution fédérale concernée.
Ordonnance de la Cour dans les cas où le refus n’est pas autorisé
48. La Cour, dans les cas où elle conclut au bon droit de l’individu qui a exercé un recours en révision d’une décision de refus de communication de renseignements personnels fondée sur des dispositions de la présente loi autres que celles mentionnées à l’article 49, ordonne, aux conditions qu’elle juge indiquées, au responsable de l’institution fédérale dont relèvent les renseignements d’en donner communication à l’individu; la Cour rend une autre ordonnance si elle l’estime indiqué.
Ordonnance de la Cour dans les cas où le préjudice n’est pas démontré
49. Dans les cas où le refus de communication des renseignements personnels s’appuyait sur les articles 20 ou 21 ou sur les alinéas 22(1)b) ou c) ou 24a), la Cour, si elle conclut que le refus n’était pas fondé sur des motifs raisonnables, ordonne, aux conditions qu’elle juge indiquées, au responsable de l’institution fédérale dont relèvent les renseignements d’en donner communication à l’individu qui avait fait la demande; la Cour rend une autre ordonnance si elle l’estime indiqué.
[31] The following provisions of the Privacy Regulations, SOR/83-508 are applicable in these proceedings:
4. (1) Personal information concerning an individual that has been used by a government institution for an administrative purpose shall be retained by the institution
(a) for at least two years following the last time the personal information was used for an administrative purpose unless the individual consents to its disposal; and
(b) where a request for access to the information has been received, until such time as the individual has had the opportunity to exercise all his rights under the Act.
[…]
4. (1) Les renseignements personnels utilisés par une institution fédérale à des fins administratives doivent être conservés par cette institution :
a) pendant au moins deux ans après la dernière fois où ces renseignements ont été utilisés à des fins administratives, à moins que l’individu qu’ils concernent ne consente à leur retrait du fichier; et
b) dans les cas où une demande d’accès à ces renseignements a été reçue, jusqu’à ce que son auteur ait eu la possibilité d’exercer tous ses droits en vertu de la Loi.
[…]
ARGUMENT
Applicant
Substantive Merits of the Application
[32] The Applicant argues that the purpose of access to information and privacy legislation must be considered in applying the provisions of the Act: Dagg v Canada (Minister of Finance), [1997] 2 SCR 403. As such, the exemptions from disclosure provided for in the Act must be narrowly construed. He cites Lavigne v Canada (Office of the Commissioner of Official Languages), 2002 SCC 53 [Lavigne] on this point:
24 The Privacy Act is also fundamental in the Canadian legal system. It has two major objectives. Its aims are, first, to protect personal information held by government institutions, and second, to provide individuals with a right of access to personal information about themselves (s. 2)…
[…]
30 Given that one of the objectives of the Privacy Act is to provide individuals with access to personal information about themselves, the courts have generally interpreted the exceptions to the right of access narrowly...
[33] In the case of the exception to disclosure set out in subsection 22(1)(b) of the Act, non-disclosure can only be justified where the government organization holding the information can show a clear and direct link between the disclosure sought and the injury that is alleged. Again, the Applicant cites Lavigne, above:
58 The non-disclosure of personal information provided in s. 22(1)(b) is authorized only where 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...
[34] The Applicant argues that promises of confidentiality to interviewees, speculative harm, or the possible “chilling effect” disclosure might have on future investigations are not valid grounds for refusing disclosure: Canada (Information Commissioner) v Canada (Minister of Citizenship and Immigration), 2002 FCA 270 [Information Commissioner v MCI]. He cites Justice Richard’s observation in Canada (Information Commissioner) v Canada (Chairperson, Immigration and Refugee Board), order of 24 December 1997 in matter T-908-97:
[45] Where the harm foreseen by release of the records sought is one about which there can only be mere speculation or mere possibility of harm, the standard is not met. It must have an impact on a particular investigation, where it has been undertaken or is about to be undertaken. One cannot refuse to disclose information under paragraph 16(1)(c) of the Access to Information Act or paragraph 22(1)(b) of the Privacy Act on the basis that to disclose would have a chilling effect on possible future investigations.
[35] With respect to the Respondent’s argument that opinions expressed by others within DND should be protected from disclosure under section 26 as the personal information of the speaker, the Applicant points to the Court of Appeal’s finding in Information Commissioner v MCI that “the personal opinions of an individual (or interviewee) are his ‘personal opinion’ except when they are about another individual [the Applicant] in which case paragraph 3(g) provides that they become the ‘personal information’ of [the Applicant],” and that the identity of the speaker is protected under paragraph 3(h) only when the opinions concern a proposal for a grant, award or prize: Information Commissioner v MCI, above, at paras 23-24. The Court of Appeal in that case weighed the private interest of the opinion-holder in not having their opinions disclosed against the private interest of the requester in accessing personal information about himself, and concluded as follows:
[30] The private interest of the interviewees is in hiding the fact that they participated in the inquiry and keeping confidential conversations they had with an investigator…
[31] This private interest is minimal. The fact that the interviewees participated in the inquiry has, in itself, little significance and, to the extent that they can justify the views they expressed, they should not fear the consequences of the disclosure, although, obviously, there may be some. To the extent that they cannot justify their views, they might have reason to fear. The fear, however, is caused not by the disclosure but by the fact that the views were expressed in the first place and that, perhaps, they were not justifiable.
[…]
[33] The private interest of [the Applicant], on the other hand, is significant… Surely, he must be given the opportunity to know what was said, and by whom, against him, if only to exercise his right under subsection 12(2) of the Privacy Act to clear his name in the Department's archives.
[34] The public interest in the disclosure is to ensure fairness in the conduct of administrative inquiries. Whatever the rules of procedural propriety applicable in a given case, fairness will generally require that witnesses not be given a blank cheque and that persons against whom unfavourable views are expressed be given the opportunity to be informed of such views, to challenge their accuracy and to correct them if need be.
[36] The Applicant argues that no explanation for withholding information under subsection 22(1)(b) was provided, but only a conclusion, and that this is contrary to the Court’s guidance in Kaiser v Canada (Minister of National Revenue) (1995), 95 DTC 5416, [1995] FCJ No 926 (FCTD). There, Justice Rothstein noted that the Act places the onus on the government to justify non-disclosure, and held that a Minister or their delegate must provide explanations that “clearly demonstrate a linkage between disclosure and the harm alleged so as to justify confidentiality.” Justice Rothstein continued (at para 3):
[A]n explanation such as 'disclosure of this information would prejudice the integrity of the investigation and therefore be injurious to the enforcement of the Income Tax Act' is insufficient. That is not an explanation but only a conclusion. Indeed, there may be reasons why disclosure would prejudice the integrity of an investigation, but an explanation has to be given as to why that is so. No such explanation has been given. The Minister has not satisfied the onus upon him of demonstrating that the confidentiality which he seeks is necessary because disclosure could reasonably be expected to be injurious to the enforcement of the Income Tax Act or of any investigation under the Income Tax Act or for any other reason referred to in paragraph 22(1)(b) of the Privacy Act.
[37] The Applicant further argues that the Respondent cannot alter its position as to the reasons for non-disclosure after the notice of the decision not to disclose is given: Ternette v Canada (Solicitor General), [1992] 2 FC 75 (TD); Davidson v Canada (Solicitor General), [1987] 3 FC 15 (TD), aff’d [1989] 2 FC 341 (CA).
[38] The Applicant also argues that his rights to a fair process are implicated in this matter. This argument appears to relate both to the impact of the non-disclosure on the grievance process and to the manner in which the OPC’s investigation and report were completed. The Applicant says that his right to a fair hearing in accordance with the principles of fundamental justice, as set out in subsection 2(e) of the Canadian Bill of Rights, SC 1960, c 44 (see Duke v The Queen, [1972] SCR 917) was infringed. The rules of natural justice and procedural fairness provide that an individual subject to an administrative process is entitled to know the case against him (R v H, [1986] 2 FC 71 at para 12 (FCTD); Gough v Canada (National Parole Board), [1991] 2 FC 117 (FCTD); Gray v Ontario (Director, Disability Support Program) (2002), 212 DLR (4th) 353 at 364 (Ont CA)), and to have an opportunity to respond by presenting their case fully and fairly: Nicholson v Haldimand-Norfolk Regional Police Commissioners, [1979] 1 SCR 311; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. These concerns are heightened when the ability to continue in one’s employment or profession is at stake: Megens v Ontario Racing Commission (2003), 64 OR (3rd) 142 (Div Ct); Kane v University of British Columbia, [1980] 1 SCR 1105. The Applicant says the non-disclosures at issue here prevented him from fully understanding and responding to the case against him in the grievance process.
[39] In addition, the Applicant argues that his procedural fairness rights have been frustrated by the Respondent’s failure to properly retain the personal information to which he sought access through the Ottawa LRO request, as required by section 6 of the Act.
[40] The Applicant argues that the OPC failed in its responsibility to uphold these rights through its investigation and report, and asks this Court to overturn the findings of that report that his complaints were, respectively, “well-founded and resolved” and “not well-founded”.
Respondent
Mootness of the Application
[41] The Respondent has brought a motion to strike this application on the basis that it is now moot, given that all of the information at issue is now in the hands of the Applicant. The Respondent argues that the application was brought under section 4