Yeager v. Canada (National Parole Board)

Yeager v. Canada (National Parole Board)
Court (s) Database
Federal Court Decisions
Date
2008-01-29
Neutral citation
2008 FC 113
File numbers
T-1644-04
Decision Content
Date: 20080129
Docket: T-1644-04
Citation: 2008 FC 113
Ottawa, Ontario, January 29, 2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MATTHEW G. YEAGER
Applicant
and
CHAIRMAN OF THE
NATIONAL PAROLE BOARD
Respondent
AND BETWEEN:
MATTHEW G. YEAGER
Applicant
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] Where the Court finds that the government institution was not authorized to refuse disclosure of information because the information at issue does not fall within the scope of an asserted exemption, the Court may substitute its own opinion; however, once the Court concludes that the government institution was authorized to refuse to disclose the information on the basis that the information is personal information, there is little room for the Court to intervene. Justice Peter deCarteret Cory of the Supreme Court of Canada stated, when determining if the Minister properly exercised his discretion, that to that effect in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403:
[107] … It is clear that 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 19(1) of the Access to Information Act states that, subject to s. 19(2), the head of the institution shall refuse to disclose personal information. 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, as in the present case, 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.
[2] In Dagg, above, Justice Cory considered the discretionary power conferred to the Minister when faced with the disclosure of personal information:
[16] … 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.
[3] Justice Marie Deschamps underlines in the Supreme Court of Canada decision H.J. Heinz Co. of Canada Ltd. v. Canada (Attorney General), [2006] 1 S.C.R. 441, the balance that the decision-maker must strike between the Access to Information Act, R.S.C. 1985, c. A-1 (ATIA) and the Privacy Act, R.S.C. 1985, c. P-21 (PA):
[29] The central protection relating to the disclosure of personal information is provided for in s. 8 of the Privacy Act, which establishes in strict terms that "[p]ersonal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section". The Privacy Act also provides a number of exceptions to the prohibition against disclosing personal information, including a "public interest" limitation on privacy rights (see s. 8(2)(a) through (m)). However, even where a government institution discloses personal information by exercising its public interest discretion, it must notify the Privacy Commissioner prior to disclosure where reasonably practicable, and the Privacy Commissioner may notify the individual (s. 8(5)). Thus, it is clear from the legislative scheme established by the Access Act and the Privacy Act that in a situation involving personal information about an individual, the right to privacy is paramount over the right of access to information.
[30] It is worth noting, however, that despite the emphasis on the protection of privacy, the legislative scheme ensures that the rights of the access requester are also taken into account in the context of an application for review. Where a s. 44 review has been initiated, the person who made the original request for access must be notified and given the opportunity to make representations (ss. 44(2) and 44(3)). In this way, the statute provides a further mechanism for balancing the rights of access requesters and of those who object to disclosure.
[31] It is apparent from the scheme and legislative histories of the Access Act and the Privacy Act that the combined purpose of the two statutes is to strike a careful balance between privacy rights and the right of access to information. However, within this balanced scheme, the Acts afford greater protection to personal information. By imposing stringent restrictions on the disclosure of personal information, Parliament clearly intended that no violation of this aspect of the right to privacy should occur. For this reason, since the legislative scheme offers a right of review pursuant to s. 44, courts should not resort to artifices to prevent efficient protection of personal information.
JUDICIAL PROCEDURE
[4] This is an application for a judicial review under section 41 of the ATIA, to review the decisions of the National Parole Board (NPB) and the Correctional Services of Canada (CSC), dated March 27, 2003 and March 14, 2003, respectively, wherein the Applicant’s access to information request was denied pursuant to subsection 19(1) of ATIA. The Information Commissioner concurred with the Respondents’ refusal to release the information requested.
[5] Section 41 of ATIA:
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.
41. La personne qui s’est vu refuser communication totale ou partielle d’un document demandé en vertu de la présente loi et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à l’information peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 37(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.
BACKGROUND
[6] The Applicant was a Ph.D. student in sociology at Carleton University. As part of his original dissertation proposal in sociology, titled, “Talking to Dangerous Offenders: An exploratory Study in Convict Criminology,” he contacted, on July 25, 2002, Mr. Ian Glen, Chairman of the NPB requesting the names, institutional/community addresses, the Fingerprint System (FPS) numbers and the Decision Registry of Dangerous Offenders (DO) located in the Ontario Region. (Applicant’s Supplementary Application Record, Book 1, Affidavit of Matthew G. Yeager, sworn October 7, 2004, Tab 7 and Exh. “B”.)
[7] On September 23, 2002, the NPB referred the Applicant to CSC about his research as most of the information requested is not information that has originated with the NPB. (Applicant’s Supplementary Application Record, Book 1, Affidavit of Matthew G. Yeager, above, Tab 7 and Exh. “D”.)
[8] On September 26, 2002, the Applicant formally requested, for research purposes under paragraph 8(2)(j) of the PA, from Mr. Laurence Motiuk, Manager of the Research Branch at CSC, the names, institutional/community addresses, and the FPS numbers of DO’s located in the Ontario Region. (Applicant’s Supplementary Application Record, Book 1, Affidavit of Matthew G. Yeager, above, Tab 7 and Exh. “E”.)
[9] On November 29, 2002, the Applicant made an access to information request to Mr. John Vandoremalen of the NPB, under the ATIA, for the names of DOs, their FPS numbers, and their institutional/community addresses in the Ontario Region of the NPB (Dagg, above); as well, he further requested access to the Decision Registry of these DO’s and asked the Board to provide these documents. (Application Record of the Respondents, Affidavit of John Vandoremalen, sworn November 10, 2004, Tab 1, para. 2 and Exh. “A”.)
[10] On this same date, the Applicant also made an access to information request to CSC, Access to Information and Privacy Division. He requested the names of DO, their FPS numbers, and their institutional/community addresses in the Ontario Region of the NPB. (Dagg, above; Application Record of the Respondents, Affidavit of Pierre Tessier, sworn November 10, 2004, Tab 2, para. 2 and Exh. “A”.)
[11] On December 11, 2002, Mr. Vandoremalen, of the NPB, invited the Applicant to request the information directly from CSC as most of the information requested originated from CSC; however, the NPB, in collaboration with CSC, proposed a privacy-friendly, consent based solution to obtain the information. The Respondents offered to forward letters prepared by Mr. Yeager to those designated as DOs in the Ontario Region so as to allow them to consent to the release of their personal information. The Applicant rejected this solution. (Application Record of the Respondents, Affidavit of John Vandoremalen, sworn November 10, 2004, Tab 1, para. 4 and Exh. “B”; Applicant’s Supplementary Application Record, Book 2, Transcript of Cross-Examination of Pierre Tessier on Affidavit sworn March 17, 2006, Tab 13, Q. 218; Applicant’s Application Record, Vol. 1, Transcript of Cross-Examination of Pierre Tessier on Affidavit sworn November 10, 2004, Tab D, Q. 26-29; Respondents’ Supplementary Application Record, Transcript of Cross-Examination of Matthew Yeager on Affidavit sworn October 7, 2004, Tab 1, Q.33.)
[12] On January 13, 2003, Mr. Mike Johnson, Director of Access to Information and Privacy Division from CSC, determined that section 19 of the ATIA prohibited the release of the information requested on the ground that it is “personal information”, as defined by section 3 of the PA, and therefore, exempt from disclosure, pursuant to subsection 19(1) of the ATIA. In reaching this conclusion, CSC considered whether the personal information could be disclosed pursuant to any of the exceptions set out in subsection 19(2) of the ATIA. CSC concluded that none of the three exceptions set out in subsection 19(2) of the ATIA applied. (Applicant’s Supplementary Application Record, Book 2, Transcript of Cross-Examination of Pierre Tessier on Affidavit sworn March 17, 2006, Tab 13, Q. 92-93, 81-82, 121, 125, 152-154, 96-98, 162-167.)
[13] Dissatisfied with the Respondents’ refusal, the Applicant brought a complaint to the Information Commissioner against the NPB and CSC regarding the “exemptions taken under subsection 19(1) of the Act.” The Applicant felt that the personal information should have been disclosed to him pursuant to paragraphs 8(2)(j) and 8(2)(m) of the PA.
[14] On August 25, 2004 (letter dated July 22, 2004), the Information Commissioner dismissed the Applicant’s complaint as he concluded that the DO did not consent to the disclosure of their personal information, the information requested is not publicly available and as CSC gave appropriate consideration to paragraph 19(2)(c). The Information Commissioner also noted that CSC offered an alternative approach to obtain the information by seeking the DOs’ consent. He invited the Applicant to communicate directly with CSC if he wished to pursue that option. (Application Record of the Respondents, Affidavit of Pierre Tessier, sworn November 10, 2004, Tab 2, para. 10 and Decision of the Information Commissioner, pp. 45-47.)
[15] On September 9, 2004, the Applicant commenced his application for judicial review. In his original Notice of Application, the Applicant was challenging the decision of the Information Commissioner to dismiss his complaint. The Applicant did not allege that the requested personal information is publicly available.
[16] On February 3, 2006, the Applicant was granted leave to file an amended Notice of Application. Pursuant to such, the Applicant is challenging the decisions of the NPB and CSC refusing to disclose the requested Records. The Applicant raises new grounds as to why he should be provided with access to the information, in that, the information he was requesting was part of the public domain.
Relevant Statutory Provisions
[17] The purpose of the ATIA:
Purpose
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.
Objet
2. (1) La présente loi a pour objet d’élargir l’accès aux documents de l’administration fédérale en consacrant le principe du droit du public à leur communication, les exceptions indispensables à ce droit étant précises et limitées et les décisions quant à la communication étant susceptibles de recours indépendants du pouvoir exécutif.
[18] Section 4 of the ATIA creates a general access rule by providing:
Right to access to records
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 subsection 2(1) of the Immigration and Refugee Protection Act,
has a right to and shall, on request, be given access to any record under the control of a government institution.
Droit d’accès
4. (1) Sous réserve des autres dispositions de la présente loi mais nonobstant toute autre loi fédérale, ont droit à l’accès aux documents relevant d’une institution fédérale et peuvent se les faire communiquer sur demande :
a) les citoyens canadiens;
b) les résidents permanents au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés.
[19] Exemptions to the right to government information and the general access rule are set out in sections 13 to 26 of the ATIA. For example, subsection 19(1) of the ATIA expressly prohibits the release of personal information as is defined in section 3 of the PA:
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.
19. (1) Sous réserve du paragraphe (2), le responsable d’une institution fédérale est tenu de refuser la communication de documents contenant les renseignements personnels visés à l’article 3 de la Loi sur la protection des renseignements personnels.
[20] Of relevance is subsection 19(2) of the ATIA which confers discretion on a head of a government institution to disclose personal information in some circumstances. Disclosure is therefore authorized where:
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.
19. (2) Le responsable d’une institution fédérale peut donner communication de documents contenant des renseignements personnels dans les cas où :
a) l’individu qu’ils concernent y consent;
b) le public y a accès;
c) la communication est conforme à l’article 8 de la Loi sur la protection des renseignements personnels.
[21] The PA limits the governments disclosure of personal information as follows:
Disclosure of personal information
8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
Where personal information may be disclosed
(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed
…
(j) to any person or body for research or statistical purposes if the head of the government institution
(i) is satisfied that the purpose for which the information is disclosed cannot reasonably be accomplished unless the information is provided in a form that would identify the individual to whom it relates, and
(ii) obtains from the person or body a written undertaking that no subsequent disclosure of the information will be made in a form that could reasonably be expected to identify the individual to whom it relates;
…
(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.
Communication des renseignements personnels
8. (1) Les renseignements personnels qui relèvent d’une institution fédérale ne peuvent être communiqués, à défaut du consentement de l’individu qu’ils concernent, que conformément au présent article.
Cas d’autorisation
(2) Sous réserve d’autres lois fédérales, la communication des renseignements personnels qui relèvent d’une institution fédérale est autorisée dans les cas suivants :
[...]
j) communication à toute personne ou à tout organisme, pour des travaux de recherche ou de statistique, pourvu que soient réalisées les deux conditions suivantes :
(i) le responsable de l’institution est convaincu que les fins auxquelles les renseignements sont communiqués ne peuvent être normalement atteintes que si les renseignements sont donnés sous une forme qui permette d’identifier l’individu qu’ils concernent,
(ii) la personne ou l’organisme s’engagent par écrit auprès du responsable de l’institution à s’abstenir de toute communication ultérieure des renseignements tant que leur forme risque vraisemblablement de permettre l’identification de l’individu qu’ils concernent;
[...]
m) communication à toute autre fin dans les cas où, de l’avis du responsable de l’institution :
(i) des raisons d’intérêt public justifieraient nettement une éventuelle violation de la vie privée,
(ii) l’individu concerné en tirerait un avantage certain.
[22] Personal information is defined by the PA at section 3:
“personal information” means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, fingerprints or blood type of the individual,
(Emphasis added.)
« renseignements personnels » Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment :
c) tout numéro ou symbole, ou toute autre indication identificatrice, qui lui est propre;
d) son adresse, ses empreintes digitales ou son groupe sanguin;
[23] Even if a record constitutes “personal information” under this definition, the head of a government institution is provided, pursuant to section 19 of the ATIA, a residual discretion to release the information according to conditions listed at subsection 19(2) of the ATIA.
[24] Pursuant to the Corrections and Conditional Release Act, L.C. 1992, c. 20 (CCRA), access to records of reviews and decisions requested through the NPB’s decision registry concerning DO’s are provided to the requestor without the offender’s FPS number and institutional address. This information is removed from the documentation that is made available to the requestor not only because it is deemed personal information but also because subsection 144(3) of the CCRA specifically excludes their disclosure. (Applicant’s Supplementary Application Record, Book 1, Affidavit of Pierre Tessier, sworn March 17, 2006, Tab 10, paras. 5(c) and (d).)
Registry of decisions
144. (1) The Board shall maintain a registry of the decisions rendered by it under this Part and its reasons for each such decision.
Access to registry
(2) A person who demonstrates an interest in a case may, on written application to the Board, have access to the contents of the registry relating to that case, other than information the disclosure of which could reasonably be expected
(a) to jeopardize the safety of any person;
(b) to reveal a source of information obtained in confidence; or
(c) if released publicly, to adversely affect the reintegration of the offender into society.
Idem
(3) Subject to any conditions prescribed by the regulations, any person may have access for research purposes to the contents of the registry, other than the name of any person, information that could be used to identify any person or information the disclosure of which could jeopardize any person’s safety.
Idem
(4) Notwithstanding subsection (2), where any information contained in a decision in the registry has been considered in the course of a hearing held in the presence of observers, any person may, on application in writing, have access to that information in the registry.
Constitution du registre
144. (1) La Commission constitue un registre des décisions qu’elle rend sous le régime de la présente partie et des motifs s’y rapportant.
Accès au registre
(2) Sur demande écrite à la Commission, toute personne qui démontre qu’elle a un intérêt à l’égard d’un cas particulier peut avoir accès au registre pour y consulter les renseignements qui concernent ce cas, à la condition que ne lui soient pas communiqués de renseignements dont la divulgation risquerait vraisemblablement :
a) de mettre en danger la sécurité d’une personne;
b) de permettre de remonter à une source de renseignements obtenus de façon confidentielle;
c) de nuire, s’ils sont rendus publics, à la réinsertion sociale du délinquant.
Idem
3) Sous réserve des conditions fixées par règlement, les chercheurs peuvent consulter le registre, pourvu que soient retranchés des documents auxquels ils ont accès les noms des personnes concernées et les renseignements précis qui permettraient de les identifier ou dont la divulgation pourrait mettre en danger la sécurité d’une personne.
Accès aux documents rendus publics
(4) Par dérogation au paragraphe (2), toute personne qui en fait la demande écrite peut avoir accès aux renseignements que la Commission a étudiés lors d’une audience tenue en présence d’observateurs et qui sont compris dans sa décision versée au registre.
[25] Section 41 of the ATIA provides for the review of the decision refusing an individual’s access to a record.
Review by Federal Court
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.
Révision par la Cour fédérale
41. La personne qui s’est vu refuser communication totale ou partielle d’un document demandé en vertu de la présente loi et qui a déposé ou fait déposer une plainte à ce sujet devant le Commissaire à l’information peut, dans un délai de quarante-cinq jours suivant le compte rendu du Commissaire prévu au paragraphe 37(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.
[26] The burden of proof the Court must adhere to when reviewing the decision is set out in section 48 of the ATIA:
Burden of proof
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.
Charge de la preuve
48. Dans les procédures découlant des recours prévus aux articles 41 ou 42, la charge d’établir le bien-fondé du refus de communication totale ou partielle d’un document incombe à l’institution fédérale concernée.
ISSUES
[27] (1) Did the Respondents err in concluding that the information requested constitutes “personal information” as defined in section 3 of the Privacy Act?
(2) Did the Respondents err in concluding that the information requested fell within the exempting provision as defined in subsection 19(2) of the Access to Information Act?
(3) Did the Respondents err when exercising their discretion in deciding that the requested information should not be disclosed?
STANDARD OF REVIEW
[28] The Supreme Court of Canada stated, in Dagg, above, that discretionary decisions must not be reviewed on a correctness or de novo standard. Instead, when reviewing a Minister’s discretionary decision, the analysis to be made by the Court is two-fold. First, the Court must decide whether the information requested falls within the relevant exemption provision on a correctness standard, and if it does, the Court will then have to determine whether the Minister lawfully exercised his or her discretion not to disclose the information.
[29] Justice John Maxwell Evans of the Federal Court of Appeal followed this approach in Canada (Information Commissioner) v. Canada (Minister of Industry), 2001 FCA 254, [2001] F.C.J. No. 1327 (QL):
[45] …"unreasonableness simpliciter", not patent unreasonableness, is the relevant variant of rationality review applicable to the discretionary decision in this case. The expertise available to the Minister in making the decision, and his accountability to Parliament, are outweighed by the importance afforded by the Act to the right affected, namely, the public right of access to government records secured by an independent review of refusals to disclose, and by the case-specific nature of the policy decision made.
[30] In reviewing a Minister’s discretionary decision made under the ATIA or PA on the “reasonableness simpliciter” standard may also warrant the intervention of the reviewing court if the decision was made in bad faith, where there is a breach of natural justice and where the decision-maker relied on irrelevant considerations. (Dagg, above at para. 111.)
Did the Respondents err in concluding that the information requested constitutes “personal information” as defined in section 3 of the Privacy Act?
[31] Justice Charles Doherty Gonthier of the Supreme Court of Canada explained in Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R 66:
[23] The Access Act provides a general right to access, subject to certain exceptions, such as that in s. 19(1), which prohibits the disclosure of a record that contains personal information "as defined in section 3 of the Privacy Act". As its name indicates, the Privacy Act protects the privacy of individuals with respect to personal information about themselves held by government institutions. By defining "personal information" as "information about an identifiable individual that is recorded in any form including ...", Parliament defined this concept broadly. In Dagg, supra, La Forest J. commented on the definition of "personal information" at paras. 68-69:
On a plain reading, this definition is undeniably expansive. Notably, it expressly states that the list of specific examples that follows the general definition is not intended to limit the scope of the former. As this Court has recently held, this phraseology 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; see Schwartz v. Canada, [1996] 1 S.C.R. 254, at pp. 289-91. Consequently, if a government record is captured by those opening words, it does not matter that it does not fall within any of the specific examples.
As noted by Jerome A.C.J. in Canada (Information Commissioner) v. Canada (Solicitor General), supra, at p. 557, the language of this section is "deliberately broad" and "entirely consistent with the great pains that have been taken to safeguard individual identity". Its intent seems to be to capture any information about a specific person, subject only to specific exceptions.
[32] Justice Jean-Eudes Dubé concluded in Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395 (T.D.), [1989] F.C.J. No. 1011 (QL), at paragraph 18, "that information shall be provided to the public, except personal information relating to individuals".
[33] The Supreme Court of Canada stated in Dagg, above:
[97] …the collective purpose of the legislation is to provide Canadians with access to information about the workings of their government without unduly infringing individual privacy. …the Privacy Act does not exempt government employees from the general rule of privacy. The fact that persons are employed in government does not mean that their personal activities should be open to public scrutiny.
[34] By the same token, individuals incarcerated benefit from this same statutory protection and have, as every individual, a reasonable expectation of privacy.
[75] … Generally speaking, when individuals disclose information about themselves they do so for specific reasons. Sometimes, information is revealed in order to receive a service or advantage. At other times, persons will release information because the law requires them to do so. In either case, they do not expect that the information will be broadcast publicly or released to third parties without their consent. (Emphasis added.)
(Dagg, above.)
[35] Justice Marshall E. Rothstein when on the Federal Court addressed the purpose of the PA in Sutherland v. Canada (Minister of Indian and Northern Affairs), 115 D.L.R. (4th) 265:
… Because the purpose of the Privacy Act is to protect the privacy of "personal information", the general rule is that information about identifiable individuals is "personal information" and only if a specific exception applies, would such information not be "personal information". It follows that a party wishing to demonstrate that information about an identifiable individual is not "personal information" must show that an exception applies.
[36] When investigating the Applicant’s complaint regarding the NPB’s decision, the Information Commissioner determined:
… the withheld information meets the definition of personal information as defined in section 3 of the PA. There are only three conditions under which federal institutions may disclose personal information. Paragraph 19(2)(a) of the Act allows for disclosure when the person to whom the information relates has consented. In this case, there is no consent. The second condition under paragraph 19(2)(b) is that information is publicly available. In my view, this is not the case here. Paragraph 19(2)(c) refers to section 8 of the PA which outlines specific instances where personal information my be disclosed. In my view, the NPB gave appropriate consideration to the possibility of disclosure of personal information in accordance with subsection 19(2)(c) of the Act, referring to paragraphs 8(2)(j) and 8(2)(m) of the PA, although exercising its discretion to not disclose the records at issue. Your request does not, in my view, meet the requirements for a disclosure of personal information in accordance with the aforementioned paragraphs, nor with the other paragraphs of section 8 of the PA.
As for access to the registry of decision, the investigation revealed that NPB would disclose this information to you once the DO consents to the disclosure of personal information. Furthermore, I am of the opinion that the registry of the decisions rendered by the NPB does not meet the criteria for a permissible disclosure under subsection 144(3) of the Corrections and Correctional Release Act (CCRA) which stipulates: “Subject to any condition prescribed by the regulations, any person may have access for research purposes to the contents of the registry, other than the name of any person, information that could be used to identify any person or information the disclosure of which could jeopardize any person’s safety,” nor in accordance with subsection 167(1) of the Corrections and Conditional Release Regulations (CCRR) which states that “a person who is requesting, pursuant to subsection 144(3) of the CCRA, access to the registry of decisions of the Board for research purposes shall apply in writing to the Board and provide a written description of the nature of the information and the classes of decisions in respect of which access is sought.” That being said, the NPB had no alternative but to withhold the information at issue.
(Applicant’s Supplementary Application Record, Tab 4, p. 17.)
[37] The Information Commissioner came to the same conclusion as it had for the NPB’s decision when investigating the Applicant’s complaint regarding the CSC’s decision, whereas “the withheld information meets the definition of personal information as defined in section 3 of the PA”. (Applicant’s Supplementary Application Record, Tab 4, p. 20.)
[38] The Supreme Court of Canada had to determine, in Dagg, above, whether the information in the logs with the names, identification numbers and signatures of employees entering and leaving the workplace on weekends constitutes “personal information” within the meaning of section 3 of the PA and whether the minister failed to exercise his discretion properly in refusing to disclose the requested information pursuant to paragraph 19(2)(c) of the ATIA and subparagraph 8(2)(m)(i) of the PA.
[39] Justice Cory, writing for the majority in Dagg, above, determined when citing Justice Dubé in Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395, [1989] F.C.J. No. 1011 (QL):
[12] … personal information as defined in section 3 of the Privacy Act means information relating to an individual whether it be his race, colour, religion, personal record, opinions, etc. … paragraph 3(c), which deals with identifying numbers, symbols or other particulars, limits such particulars to the individual…
(Reference is also made to Dagg, above, para. 93.)
[40] In recent decisions, the Supreme Court of Canada reaffirmed its analysis in Dagg, above, by indicating that the following general interpretive principles should be applied in order to resolve a conflict between the ATIA and the PA:
[21] … First, it is clear that the Privacy Act and the Access Act have to be read jointly and that neither takes precedence over the other. The statement in s. 2 of the Access Act that exceptions to access should be "limited and specific" does not create a presumption in favour of access. Section 2 provides simply that the exceptions to access are [page81] limited and that it is incumbent on the federal institution to establish that the information falls within one of the exceptions (see also s. 48 of the Access Act).
[22] Further, I note that s. 4(1) of the Access Act states that the right to government information is "[s]ubject to this Act". Section 19(1) of the Access Act expressly prohibits the disclosure of a record that contains personal information "as defined in section 3 of the Privacy Act". Thus, s. 19(1) excludes "personal information", as defined in the Privacy Act, from the general access rule. The Access Act and the Privacy Act are a seamless code with complementary provisions that can and should be interpreted harmoniously.
(Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police, above.)
[41] In H.J. Heinz, above, at paragraph 31, the Supreme Court of Canada went further by stating that, even if the combined purpose of the two statutes is to strike a careful balance between privacy rights and the right of access to information, the two Acts afford greater protection to personal information.
[42] It seems clear that the FPS number, an identifying number assigned to inmates including DOs and their address, clearly fall within the meaning of “personal information” as defined in subsection 3(c) and 3(d) of the PA. By releasing the information requested by the Applicant, the Respondents would be disclosing information about the criminal history of these individuals and about the fact that they have an address in Ontario, which also amounts to “personal information”.
[43] As stated above, there is no dispute between the parties that the requested information is “personal information” as defined in section 3 of the PA. The Respondents are required under the PA to refuse to release that information unless an exemption is applicable.
Did the Respondents err in concluding that the information requested fell within the exempting provision as defined in subsection 19(2) of the Access to Information Act?
[44] Once it is established that the information in question is “personal information” and, thus, exempt under subsection 19(1) of the ATIA, the burden of proof then shifts to the requestor to show that the personal information requested is publicly available, thereby triggering any discretion to disclose the information under paragraph 19(2)(b). In this case, the Applicant has failed to meet that burden by not demonstrating that all of the requested information is publicly available.
[45] The Applicant does not challenge the Respondents’ conclusion that the requested information (names, institutional/community addresses, and FPS numbers of DOs located in Ontario Regions) is personal information. The Applicant, however, submits that the requested information is publicly available and must therefore be released pursuant to paragraph 19(2)(b) of the ATIA. (Applicant’s Supplementary Application Record, Book 1, Supplementary Affidavit of Matthew G. Yeager, sworn January 30, 2006, Tab 9, paras. 4-8.)
[46] In claiming an exception pursuant to subsection 19(2), the Applicant has the onus to establish that an exception contained in subsection 19(2) does apply. Justice Rothstein in Sutherland, above, stated:
… Because the purpose of the Privacy Act is to protect the privacy of "personal information," the general rule is that information about identifiable individuals is "personal information" and only if a specific exception applies, would such information not be "personal information." It follows that a party wishing to demonstrate that information about an identifiable individual is not "personal information" must show that an exception applies.
[47] The Applicant states in his supplementary affidavit “that most of the information whose disclosure [he] is seeking …, is in fact now part of the public domain”. (Applicant’s Supplementary Application Record, Book 1, Supplementary Affidavit of Matthew G. Yeager, above, Tab 9, para. 2.)
[48] The Applicant basis this conclusion on the following facts:
(1) “the names of most of Canada’s roughly 400 Dangerous Offenders are in fact already “publicly available”[sic], and part of the public domain … [and] can be accessed by any member of the public, at any time, from …publicly[sic] available sources”;
(2) the institutional/community addresses and FPS numbe