Dagg v. Canada (Minister of Finance)

Dagg v. Canada (Minister of Finance)
Collection
Supreme Court Judgments
Date
1997-06-26
Report
[1997] 2 SCR 403
Case number
24786
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Federal Court of Appeal
Subjects
Access to information
Notes
SCC Case Information: 24786
Decision Content
Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403
Michael A. Dagg Appellant
v.
The Minister of Finance Respondent
and
The Privacy Commissioner of Canada and
the Public Service Alliance of Canada Interveners
Indexed as: Dagg v. Canada (Minister of Finance)
File No.: 24786.
1997: January 22; 1997: June 26.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the federal court of appeal
Access to information -- Privacy ‑‑ Personal information ‑‑ Request made for sign‑in logs of government department ‑‑ Personal identifying features deleted from information ‑‑ Whether information should be disclosed ‑‑ Whether part of information can be withheld because “personal information” ‑‑ Access to Information Act, R.S.C., 1985, c. A‑1, ss. 2 , 4 , 19(1) , (2) , 21(1) (b), 25 , 31 , 41 , 48 , 49 , 54 ‑‑ Privacy Act, R.S.C., 1985, c. P‑21, ss. 2 , 3 (i), (j), 8(2) (m).
The appellant 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 respondent 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. The appellant unsuccessfully sought a review by the Minister of this decision and filed a complaint with the Information Commissioner, arguing that deleted information should be disclosed by virtue of exceptions related to personal information in the Privacy Act . The Federal Court, Trial Division, on a review of the Minister’s decision, found the information not to be personal but this decision was reversed on appeal. At issue here is whether the information in the logs constitutes “personal information” within the meaning of s. 3 of the Privacy Act and whether the Minister failed to exercise his discretion properly in refusing to disclose the requested information pursuant to s. 19(2) (c) of the Access to Information Act and s. 8(2) (m)(i) of the Privacy Act .
Held (La Forest, L’Heureux‑Dubé, Gonthier and Major JJ. dissenting): The appeal should be allowed.
Per Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ.: Agreement was expressed with La Forest J.’s approach to interpreting the Access to Information Act and the Privacy Act , particularly that they must be interpreted together. La Forest J.’s general approach to the interpretation of s. 3 “personal information” (j) of the Privacy Act (hereinafter s. 3 (j)) was also agreed with.
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 set out at s. 3 (j)(iii) of the Privacy Act . 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 discloses information generic to the position itself.
Per La Forest, L’Heureux‑Dubé, Gonthier and Major JJ. (dissenting): The Access to Information Act and Privacy Act have equal status and must be given equal effect. The courts must have regard to the purposes of both in considering whether a government record constitutes “personal information”. Both recognize that, in so far as it is encompassed by the definition of “personal information” in s. 3 of the Privacy Act , privacy is paramount over access.
The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry. While the Access to Information Act recognizes a broad right of access to any record under the control of the government, the overarching purposes of the Act must be considered in determining whether an exemption to that general right should be granted. The purpose of the Privacy Act is to protect the privacy of individuals with respect to personal information about themselves held by a government institution and to provide individuals with a right of access to that information.
The definition of “personal information” in s. 3 of the Privacy Act ‑‑ “information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing” ‑‑ indicates that the general opening words are intended to be the primary source of interpretation. The subsequent enumeration merely identifies examples of the type of subject matter encompassed by the general definition. The language is deliberately broad and entirely consistent with the great pains that have been taken to safeguard individual liberty. Its intent is to capture any information about a specific person, subject only to specific exceptions.
In the present case, the information requested by the appellant revealed the times during which employees of the Department of Finance attended their workplace on weekends over a period of one month. It is patently apparent that this constitutes “information about an identifiable individual” within the meaning of s. 3 . It thus prima facie constitutes “personal information” under s. 3 of the Privacy Act .
Although it is not strictly necessary to so find, it is relevant that employees of the respondent would have a reasonable expectation that the information in the sign‑in logs would not be revealed to the general public. A reasonable person would not expect strangers to have access to detailed, systematic knowledge of an individual’s location during non‑working hours, even if that location is his or her workplace.
Once it is determined that a record falls within the opening words of the definition of “personal information” in s. 3 of the Privacy Act , it is not necessary to consider whether it is also encompassed by one of the specific, non‑exhaustive examples set out in paras. (a) to (i). It should be noted, nevertheless, that the records requested by the appellant in this case clearly fall within para. (i), which states that “personal information” includes “the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual”. In this case, the appellant did not request only the names of the employees. He also wanted access to the times of their arrivals and departures. The time entries thus constitute “other personal information” within the meaning of the first part of para. (i).
It is also clear that disclosure of the names themselves, i.e., without the time entries or signatures, would disclose information about the individual within the meaning of the second part of para. (i). In his access request, the appellant asked for copies of the logs signed by employees on specific days. Even if the Minister disclosed only the names of the employees listed on those logs, the disclosure would reveal that certain identifiable persons attended their workplace on those days.
Section 48 of the Access to Information Act places the onus on the government to show that it is authorized to refuse to disclose a record. The Act makes no distinction between the determination as to whether a record is prima facie personal information and whether it is encompassed by one of the exceptions. Even where it has been shown that the record is prima facie personal information, the government retains the burden of establishing that a record does not fall within one of the exceptions set out in s. 3 .
The section 3 personal information provision exempts information attaching to positions but not information relating 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”. Generally speaking, information relating to the position, function or responsibilities of an individual will consist of the kind of information disclosed in a job description.
The information requested in the present case is not information about the nature of a particular position. While it may give the appellant a rough, overall picture of weekend work patterns, it provides no specific, accurate information about any specific employee’s duties, functions or hours of work. Rather, it reveals information about the activities of a specific individual which may or may not be work‑related. Even if the logs can be said to record an employee’s overtime hours accurately, such information is “personal information”. The specific hours worked by individual employees reveal nothing about either the nature or quantity of their work.
The names on the sign‑in logs do not constitute a “document prepared by . . . individual[s] in the course of employment”. First, these logs are not prepared by the employees who sign them; they are the responsibility of security officers. Second, they are not made “in the course of employment” and have nothing to do with the responsibilities of their positions.
A de novo review of the decision of the head of the institution, under s. 8(2) (m)(i) of the Privacy Act , that the public interest in disclosure clearly outweighed any invasion of privacy is not mandated by s. 2 of the Access to Information Act which provides that decisions on disclosure should be reviewed independently of government. The reviewing court, under s. 49 of that Act, is to determine whether the refusal to disclose by the head of a government institution was authorized. If the information does not fall within one of the exceptions to a general right of access, the head of the institution is not “authorized” to refuse disclosure, and the court may order that the record be released pursuant to s. 49 . In making this determination, the reviewing court may substitute its opinion for that of the head of the government institution. The situation changes, however, once it is determined that the head of the institution is authorized to refuse disclosure. Section 49 of the Access to Information Act , then, only permits the court to overturn the decision of the head of the institution where that person is “not authorized” to withhold a record. Where the requested record constitutes personal information, the head of the institution is authorized to refuse and the de novo review power set out in s. 49 is exhausted.
The head of a government institution, under s. 19(2) of the Access to Information Act , has a discretion to disclose personal information in certain circumstances. 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 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 upon the appellant.
The head of a government institution, pursuant to s. 48 of the Access to Information Act , 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 pursuant to s. 8(2) (m)(i) of the Privacy Act 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 a court on the correctness standard. The Minister weighed the conflicting 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.
Cases Cited
By Cory J.
Considered: Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551; Rubin v. Clerk of Privy Council (Can.) (1993), 62 F.T.R. 287.
By La Forest (dissenting)
R. v. Morgentaler, [1993] 3 S.C.R. 463; St. Peter’s Evangelical Lutheran Church, Ottawa v. City of Ottawa, [1982] 2 S.C.R. 616; Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551; Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395; Information Commissioner v. Minister of Employment and Immigration (1986), 5 F.T.R. 287; Bland v. National Capital Commission, [1991] 3 F.C. 325; Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265; R. v. Dyment, [1988] 2 S.C.R. 417; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Osolin, [1993] 4 S.C.R. 595; Schwartz v. Canada, [1996] 1 S.C.R. 254; Order M-35 (Re Corporation of the Township of Osprey, September 4, 1992), [1992] O.I.P.C. No. 119 (QL); Order P-718 (Re Ontario Science Centre, July 6 1994), [1994] O.I.P.C. No. 211 (QL); Order M-438 (Re Town of Amherstburg Police Services Board, December 30, 1994), [1994] O.I.P.C. No. 434 (QL); Katz. v. United States, 389 U.S. 347 (1967); R. v. Wong, [1990] 3 S.C.R. 36; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Plant, [1993] 3 S.C.R. 281; Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268; Sutherland v. Canada (Minister of Indian and Northern Affairs), [1994] 3 F.C. 527; Terry v. Canada (Minister of National Defence) (1994), 86 F.T.R. 266; MacKenzie v. Canada (Minister of National Health and Welfare) (1994), 88 F.T.R. 52; Thorne v. Newfoundland and Labrador Hydro Electric Corp. (1993), 109 Nfld. & P.E.I.R. 233; Rubin v. Clerk of the Privy Council (Can.) (1993), 62 F.T.R. 287; Orth v. Macdonald Dettwiler & Associates Ltd. (1986), 16 C.C.E.L. 41; Canada (Information Commissioner) v. Canadian Radio-television and Telecommunications Commission, [1986] 3 F.C. 413; McHugh v. Union Bank of Canada, [1913] A.C. 299; Smith & Rhuland Ltd. v. The Queen, on the relation of Brice Andrews, [1953] 2 S.C.R. 95; Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875; Vancouver (City of) v. Simpson, [1977] 1 S.C.R. 71; Isinger v. Buckland (Rural Municipality No. 491) (1986), 48 Sask. R. 207; Re Michelin Tires Manufacturing (Canada) Ltd. (1975), 13 N.S.R. 587; Grand Council of the Crees (of Quebec) v. Canada (Minister of External Affairs and International Trade), [1996] F.C.J. No. 903 (Q.L.); Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219; Canadian Arsenals Ltd. v. Canadian Labour Relations Board, [1979] 2 F.C. 393; Macdonald v. The Queen, [1977] 2 S.C.R. 665; Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684.
Statutes and Regulations Cited
Access to Information Act, R.S.C., 1985, c. A-1, ss. 2 , 4 , 13 , 19(1) , (2) , 21(1) (b), 25 , 31 , 41 , 48 , 49 , 53(2) , 54 .
Canadian Charter of Rights and Freedoms, ss. 8 , 24(2) .
Freedom of Information Act, R.S.N. 1990, c. F-25, s. 10(2)(a).
Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.
Interpretation Act, R.S.C., 1985, c. I-21, ss. 11 , 12 .
Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.
Privacy Act, R.S.C., 1985, c. P-21, ss. 2 , 3 “personal information” (i), (j), 8(2)(m).
Authors Cited
Birkinshaw, Patrick. Freedom of Information: The Law, the Practice and the Ideal. London: Weidenfeld and Nicolson, 1988.
Canada. Report of the Task Force established jointly by the Department of Communications/Department of Justice. Privacy and Computers. Ottawa: Information Canada, 1972.
Canadian Bar Association. Special Committee on Freedom of Information. Freedom of Information in Canada: A Model Bill. Ottawa: The Association, 1979.
Feinberg, Joel. “Autonomy, Sovereignty, and Privacy: Moral Ideals in the Constitution?” (1982), 58 Notre Dame L. Rev. 445.
Fried, Charles. “Privacy” (1968), 77 Yale L.J. 475.
House of Commons Debates, vol. XVI, 1st sess., 32nd Parl., at p. 18853.
Jones, David Phillip and Anne S. de Villars. Principles of Administrative Law, 2nd ed. Scarborough, Ont.: Carswell, 1994.
Leadbeater J. Alan. “How Much Privacy for Public Officials?”. In Hide and Seek -- Current Issues in Freedom of Information and Privacy Law. Institute of Continuing Legal Education, Canadian Bar Association (Ontario), March 25, 1994, Tab 2.
Mullan, David J. “Access to Information and Rule-Making”, in John D. McCamus, ed., Freedom of Information: Canadian Perspectives, at p. 54. Toronto: Butterworths, 1981.
Onyshko, Tom. “The Federal Court and the Access to Information Act ” (1993), 22 Man. L.J. 73.
Plamenatz, John. Democracy and Illusion. London: Longman, 1973.
Rowat, Donald C. “How Much Administrative Secrecy?” (1965), 31 Can. J. of Econ. and Pol. Sci. 479.
Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1970.
APPEAL from a judgment of the Federal Court of Appeal, [1995] 3 F.C. 199, 124 D.L.R. (4th) 553, 181 N.R. 139, allowing an appeal from a judgment of Cullen J. (1993), 70 F.T.R. 54, 22 Admin. L.R. (2d) 171. Appeal allowed, La Forest, L’Heureux‑Dubé, Gonthier and Major JJ. dissenting.
Alan Riddell and Sean Gaudet, for the appellant.
Graham Garton, Q.C., and Anne M. Turley, for the respondent.
Denis J. Power, Q.C., and Holly Harris, for the intervener the Privacy Commissioner of Canada.
Andrew Raven and David Yazbeck, for the intervener the Public Service Alliance of Canada.
//Cory J.//
The judgment of Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ. was delivered by
1 Cory J. -- I have read the careful and extensive reasons of Justice La Forest. I agree with his approach to the interpretation of the Access to Information Act, R.S.C. 1985, c. A-1 , and the Privacy Act, R.S.C., 1985, c. P-21 , particularly that they must be interpreted and read together. I also agree that the names on the sign‑in logs are “personal information” for the purposes of s. 3 of the Privacy Act . However, I arrive at a different conclusion with respect to the application of s. 3 “personal information” (j) (hereinafter s. 3 (j)) of that Act.
2 Subsection 3 (j) of the Privacy Act provides that:
. . . for the purposes of sections 7 , 8 and 26 and section 19 of the Access to Information Act , [“personal information”] 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,
. . .
(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. . . .
3 I agree with La Forest J. that the names on the sign‑in logs do not fall under s. 3 (j)(iv) of the Privacy Act . It would be difficult to conclude that the sign‑in logs were “prepared by” the employees, as that expression is commonly understood.
4 However, I am of the view that both the opening words of s. 3 (j) and the specific provisions of s. 3 (j)(iii) of the Privacy Act are sufficiently broad to encompass the information sought by the appellant.
5 La Forest J. holds, at para. 94, that the purpose of s. 3 (j) and s. 3 (j)(iii) of the Privacy Act 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”. [Emphasis in original.]
6 I agree. Moreover, I agree with La Forest J. that “[g]enerally speaking, 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” (para. 95).
7 However, in applying these considerations to the facts, La Forest J. concludes that the information requested by the appellant is not information about the nature of a particular position. It is on this point that I must differ.
8 The number of hours spent at the workplace is generally information “that relates to” the position or function of the individual, and thus falls under the opening words of s. 3 (j). It is no doubt true that employees may sometimes be present at their workplace for reasons unrelated to their employment. Nevertheless, I am prepared to infer that, as a general rule, employees do not stay late into the evening or come to their place of employment on the weekend unless their work requires it. Ordinarily the workplace cannot be mistaken for either an entertainment centre or the setting for a party. The sign‑in logs therefore provide information which would at the very least permit a general assessment to be made of the amount of work which is required for an employee’s particular position or function.
9 For the same reason, the information in the sign‑in logs is related to “the . . . responsibilities of the position held by the individual” and falls under the specific exception set out at s. 3 (j)(iii) of the Privacy Act . Although this information may not disclose anything about the nature of the responsibilities of the position, it does provide a general indication of the extent of those responsibilities. Generally, the more work demanded of the employee, the longer will be the hours of work required to complete it in order to fulfil the “responsibilities of the position held by the individual”. Nothing in s. 3(j)(iii) of the Act indicates that the information must refer to “responsibilities” in a qualitative, as opposed to quantitative, sense.
10 The reasons of the Federal Court in Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.) (hereinafter “Information Commissioner”) and Rubin v. Clerk of Privy Council (Can.) (1993), 62 F.T.R. 287 (hereinafter “Rubin”) are in my view distinguishable.
11 In Information Commissioner, Jerome A.C.J. held that certain opinions expressed about the training, personality, experience or competence of individual employees did not fall under any of the exemptions set out at s. 3 (j) of the Privacy Act . In construing these specific exceptions, it was observed that, apart from s. 3 (j)(v) (the individual’s own views or opinions given in the course of employment), each of them are examples of “matters of objective fact” (pp. 557-58). According to Jerome A.C.J., at p. 558:
There is no indication that qualitative evaluations of an employee’s performance were ever intended to be made public. Indeed, it would be most unjust if the details of an employee’s job performance were considered public information simply because that person is in the employ of the government.
12 In my view, 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 discloses information generic to the position itself.
13 In Rubin, it was held that, although the salary range attaching to a position fell under s. 3 (j)(iii) of the Privacy Act , the actual salary earned by the employee filling the position did not. However, unlike the information contained in the sign‑in sheets, the actual salary which a person receives does not reveal anything inherent about the position. On the contrary, it is information that relates to the individual employee.
14 My conclusion that the names on the sign‑in logs fall within the opening words of s. 3 (j) of the Privacy Act and, alternatively, within s. 3(j)(iii) of the Act, is sufficient to dispose of this appeal. It follows that the information must be disclosed.
15 There remain two additional matters which I would like to mention. First, there might be another acceptable manner of resolving the dispute which would go further in protecting the privacy and security of the individuals. Perhaps this could be achieved by setting out the hours worked and indicating which of the employees appearing on the sign‑in sheets were members of the bargaining unit, without revealing their names. That solution might satisfy all concerned. Yet, in the absence of submissions on such a proposed solution, it would be unfair and improper to consider it in this appeal.
16 Second, in light of the conclusion that the information must be disclosed, it is not necessary for me to consider whether the Minister erred in his exercise of the discretion conferred upon him pursuant to s. 19(2) of the Access to Information Act and s. 8 of the Privacy Act . In general, I agree with La Forest J.’s conclusion that a Minister’s discretionary decision under s. 8(2) (m)(i) is not to be reviewed on a de novo standard of review. Perhaps it will suffice to observe that the Minister is not obliged to consider whether it is in the public interest to disclose personal information. However in the face of a demand for disclosure, he is required to exercise that discretion by at least considering the matter. If he refuses or neglects to do so, the Minister is declining jurisdiction which is granted to him alone.
17 Furthermore, it could be determined that the Minister committed an error in principle resulting in a loss of jurisdiction when he stated:
I do not believe that you have demonstrated that if there were any public interest that it clearly overrides the individual’s right to privacy. [Emphasis added.]
18 From this, it appears that the Minister of Finance placed upon the appellant the burden of demonstrating that the public interest in disclosure clearly outweighed any privacy interest. Yet, s. 8 of the Privacy Act does not mention any burden of proof. It simply provides that the Minister must be satisfied that the public interest in disclosure clearly outweighs privacy. The quoted words from the Minister’s ruling could lead to the conclusion that he abused the discretion conferred upon him. If this had been the conclusion reached, I would have referred the matter back to the Minister for consideration without the imposition of the onus on the appellant.
19 In the result, I would allow the appeal, with costs.
//La Forest J.//
The reasons of La Forest, L’Heureux-Dubé, Gonthier and Major JJ. were delivered by
20 La Forest J. (dissenting) -- This appeal involves a conflict between access to information and privacy rights under federal legislation. For the first time, this Court has the opportunity to consider an application pursuant to s. 41 of the Access to Information Act, R.S.C., 1985, c. A-1 , to review a decision as to whether certain information under the control of the Government of Canada should be disclosed. Specifically, the appellant challenges the decision of the respondent Minister of Finance to refuse to disclose portions of departmental sign-in logs on the basis that they constitute “personal information” within the meaning of s. 3 of the Privacy Act, R.S.C., 1985, c. P-21 .
Factual Background
21 On October 16, 1990, the appellant, Dagg, a professional access to information consultant, filed a request with the Department of Finance for copies of logs signed by employees entering and leaving the workplace on weekends during the month of September, 1990. On November 6, 1990, the respondent Minister disclosed the relevant logs to the appellant. The Minister had, however, deleted the employees’ names, identification numbers and signatures. In his letter accompanying the disclosed logs, the Minister explained that this information constituted personal information and was thus exempted from disclosure in accordance with s. 19(1) of the Access to Information Act .
22 On November 29, 1990, the appellant filed a complaint with the Information Commissioner pursuant to s. 31 of the Access to Information Act . On March 18, 1991, he wrote to the Minister seeking a review of his earlier decision. He argued that the names of the employees which had been deleted from the record should be disclosed by virtue of s. 3 “personal information” (j) (hereinafter s. 3 (j)) or s. 8(2) (m) of the Privacy Act . The Minister confirmed his decision by way of a letter dated July 3, 1991. In his report of September 4, 1991, the Information Commissioner concluded that the appellant had not been deprived of a right under the Access to Information Act and indicated that he was unable to support his complaint.
23 The appellant applied to the Federal Court, Trial Division, for a review of the Minister’s decision pursuant to s. 41 of the Access to Information Act . The evidence of R. Langille, the Department’s Director of Security Services, revealed that the sign-in logs recorded the names, identification numbers and signatures of the individuals entering the Department, as well as their location in the building and the times of their arrival and departure. According to Langille, the primary purpose of the sign-in logs was to locate personnel in case of fire. He also stated that they had been used to assist in investigations of theft and vandalism, though they were not kept for that purpose. On occasion, he testified, logs had been shown to managers in order to verify that an employee was present in the building at a particular time. As far as Langille was aware, however, the logs were not used to verify overtime claims.
24 In his own evidence, the appellant stated that he sought the information as part of a marketing initiative. He wanted to determine whether union members were working overtime on weekends without claiming compensation. He intended to present this information to the union anticipating that it would find it helpful in the collective bargaining process and thereby be disposed to retain his services. He also hoped to obtain a legal precedent on the release of names that would force government departments to adopt a consistent response to such requests.
25 On November 8, 1993, Cullen J. held that the names were not personal information and should be released. The respondent appealed to the Federal Court of Appeal. In a unanimous decision dated April 21, 1995, the court allowed the appeal.
Applicable Legislation
26 Before proceeding further, it will be useful to set out the relevant provisions of the Access to Information Act and the Privacy Act . Section 2 of each Act sets out the statute’s purpose:
Access to Information Act
2. (1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
Privacy Act
2. The purpose of this Act is to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.
27 Section 4 of the Access to Information Act sets out the basic right to government-held information:
4. (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immigration Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
28 This right to government information is limited by a number of exemptions set out in the Access to Information Act beginning at s. 13 . Of relevance here is s. 19(1), the personal information exemption, which states:
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 .
29 “Personal information” is defined by s. 3 of the Privacy Act . It reads:
3. . . .
“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
. . .
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information 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,
(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. . . .
30 Even if a record constitutes “personal information” under this definition, however, s. 19(2) of the Access to Information Act provides the head of a government institution with a residual discretion to release the information under the following circumstances:
19. . . .
(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 .
31 Section 8 of the Privacy Act , in relevant part, states:
8. . . .
(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. . . .
32 The Information Commissioner is appointed under s. 54 of the Access to Information Act by the Governor in Council after approval by resolution of the Senate and House of Commons. He has the responsibility of receiving and investigating complaints under the Act including from those who have been denied access to a record or part of a record.
33 Section 41 of the Access to Information Act provides for the review of a decision to refuse access to a record. It states:
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information 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 Information Commissioner are reported to the complainant under subsection 37(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.
34 Section 48 of the Act sets out the burden of proof to be employed by a reviewing court:
48. In any proceedings before the Court arising from an application under section 41 or 42 , the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested under this Act or a part thereof shall be on the government institution concerned.
35 Finally, s. 49 sets out the powers of the reviewing court to order disclosure of government information:
49. Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of a provision of this Act not referred to in section 50, the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.
Judicial History
Federal Court, Trial Division (1993), 70 F.T.R. 54
36 Cullen J. held that the question whether a record is “personal information” is to be determined according to whether its predominant characteristic is personal or professional. In his view, the information in the sign-in logs, even if potentially usable to ascertain personal information about the individuals thereon, is nonetheless predominantly of a professional and non-personal nature. Taken as a whole, he concluded, they indicate how many individuals are working overtime for the Department.
37 Cullen J. found that the broad definition of “personal information” proposed by the respondent would mean that virtually all government information would be exempt from disclosure. Such an interpretation, he held, deviates from Parliament’s intention that most information emanating from government should be disclosed.
38 Cullen J. also held that the sign-in logs did not fall within s. 3 (i) of the Privacy Act . Because the identification numbers and signatures had been excised from the logs, he determined, the names did not “appear” with other personal information. He concluded, moreover, at p. 58, that the names themselves did not disclose any “other personal information” as defined in s. 3 (i).
39 Having determined that the names on the sign-in logs were not personal information, Cullen J. found it unnecessary to determine whether they