Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board)

Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board)
Court (s) Database
Federal Court Decisions
Date
2005-03-18
Neutral citation
2005 FC 384
File numbers
T-465-01, T-650-02, T-888-02, T-889-02
Notes
Reported Decision
Decision Content
Date: 20050318
Dockets: T-465-01, T-650-02, T-888-02, T-889-02
Citation: 2005 FC 384
Ottawa, Ontario, this 18th day of March, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Applicant
- and -
THE EXECUTIVE DIRECTOR OF THE CANADIAN
TRANSPORTATION ACCIDENT
INVESTIGATION AND SAFETY BOARD
Respondent
- and -
NAV CANADA
Respondent
- and -
THE ATTORNEY GENERAL OF CANADA
Intervener
REASONS FOR ORDER
SNIDER J.
[1] In each of four applications before me, the Applicant, the Information Commissioner of Canada (the "Commissioner"), pursuant to s. 42(1)(a) of the Access to Information Act, R.S.C. 1985, c. A-1 (the "ATIA"), seeks judicial review of a refusal by the Respondent, the Executive Director of the Canadian Transportation Accident Investigation and Safety Board (the "TSB"), to disclose requested information. In addition, the Commissioner seeks an Order declaring that s. 9(2) of the Radiocommunication Act, R.S.C. 1985, c. R-2 infringes s. 2(b) of the Canadian Charter of Rights and Freedom (the "Charter").
[2] The information sought by the Commission consists of tapes and transcripts of conversations between air traffic control ("ATC") and aircraft personnel (the "ATC communications"). The applications before me arose as a result of four separate airplane collisions or crashes. A brief description of the incidents, the requests for information and the relevant decisions of the TSB are as follows:
1. The Clarenville Occurrence
Court File T- 465-01 relates to an application made by Mr. Peter Walsh, who works for CBC TV, to the TSB for access to:
All records regarding investigation into Kelner Airways, Pilatus PC-12 plane crash near Clarenville N.F., 19 May 1998, including final report with ministerial briefings, witness statement and audio tape copy of voice cockpit recorder conversations with air traffic control.
The final decision of the TSB to withhold the information was dated December 11, 2000 and confirmed the position of the TSB stated in its letter to the Commissioner dated September 20, 2000.
2. The Penticton Occurrence
Court File T-650-02 relates to an application made by Ms. Anna M. Feglerska, counsel for the underwriters on behalf of the estate of the pilot of the Mooney M20 who was killed in the incident. The TSB refused the requester access to:
Tapes and transcripts of voice communications between Nav Canada and the pilots of the two aircraft [the Cessna 177RG (C-GWYY) and the Mooney M20 C (C-GAR)] involved in the mid-air collision in or near Penticton, British Columbia on August 20, 1999.
The TSB's reasons for the refusal of this request and the requests made in Court files T-888-02 and T-889-02 are contained in the TSB's letter dated January 31, 2002.
3. The Fredericton Occurrence
Court File T-888-02 is based on an application to the TSB by the journalist, Mr. Dean Beeby. The TSB refused the requester access to:
Records of radio communications pertinent to the investigation into the landing of an Air-Canada-Canadian Airlines Fokker 28 aircraft at Fredericton Airport on Nov. 28, 2000, including communications involving Moncton ATC, the Fredericton tower and the pilots.
As noted above, the reasons for the TSB's refusal were contained in the TSB letter dated January 31, 2002. This position, in respect of this incident and the incident in Court File T-889-02 were confirmed the TSB's refusal letter dated March 14, 2002.
4. The St. John's Occurrence
In Court File T-889-02, application is made with the consent of the requester, Mr. Dean Beeby. The TSB refused the requester access to:
All air traffic control tapes turned over to the board's investigation into the Aug. 1, 1999, accident at St. John's Nfld., airport in which an InterCanadian Fokker 28 overshot the runway.
In each case, the reasons given by the TSB were consistent. First, the TSB was of the view that the ATC communications were personal information as contemplated by s. 3 of the Privacy Act. Secondly, the TSB concluded that disclosure of the information pursuant to s. 19(2) of the ATIA was not warranted.
ISSUES
[3] The issues raised by these applications are as follows:
1. Do the ATC communications constitute "personal information" as defined in s. 3 of the Privacy Act, 1980-81-82-83, c. 111, Sch. II "1" (the "Privacy Act") thus preventing disclosure under s. 19(1) of the ATIA?
2. Did the TSB err in determining that disclosure of the ATC communications was not warranted by s. 19(2) of the Privacy Act of the ATIA?
3. Does s. 20(1) of the ATIA prohibit the disclosure of the ATC communications?
4. Can the personal information in the ATC communications reasonably be severed from the remaining information pursuant to s. 25 of the ATIA?
5. Does s. 9(2) of the Radiocommunication Act R.S.C. 1985, c. R-2, infringe s. 2(b) of the Charter which guarantees freedom of expression and, if so, is such an infringement justified under s.1 of the Charter?
THE STATUTORY SCHEME
[4] The principal issue in this case is whether the ATC communications contain "personal information" as defined by s. 3 of the Privacy Act and, as such, were exempt from disclosure by virtue of s. 19(1) of the ATIA. Section 3 defines "personal information" as follows:
s. 3 "personal information" means information about an identifiable individual that is recorded in any form...
[5] Section 19(1) of the ATIA is as follows:
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.
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.
[6] Section 19(2) of the ATIA sets out the circumstances in which the head of a government institution may disclose a record containing personal information:
(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.
(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 accas;
c) la communication est conforme à l'article 8 de la Loi sur la protection des renseignements personnels.
[7] Section 8(2)(m)(i) of the Privacy Act provides that personal information may be disclosed where, "in the opinion of the head of the institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure".
[8] The final provision to consider is s. 25 of the ATIA, which contemplates categorizing the information into personal and non-personal categories and then severing the two, allowing disclosure of the non-personal information:
25. Notwithstanding any other provision of this Act, where a request is made to a government institution for access to a record that the head of the institution is authorized to refuse to disclose under this Act by reason of information or other material contained in the record, the head of the institution shall disclose any part of the record that does not contain, and can reasonably be severed from any part that contains, any such information or material.
25. Le responsable d'une institution fédérale, dans les cas où il pourrait, vu la nature des renseignements contenus dans le document demandé, s'autoriser de la présente loi pour refuser la communication du document, est cependant tenu, nonobstant les autres dispositions de la présente loi, d'en communiquer les parties dépourvues des renseignements en cause, à condition que le prélèvement de ces parties ne pose pas de problèmes sérieux.
ANALYSIS
Issue #1: Are the ATC communications "personal information" within the meaning of s. 3 of the Privacy Act?
[9] The parties agree that the issue of whether this is personal information is the most critical question for determination. They also agree that the TSB's determination is to be reviewed on a standard of correctness (Canada (Information Commissioner) v. Canada (RCMP), [2003] 1 S.C.R. 66, at paras. 14 - 19).
[10] Both the TSB and NAV Canada argue that the ATC communications are personal information. The Commissioner submits that they are not. There is nothing that specifically covers this type of information in either the ATIA or the Privacy Act. Further, none of the jurisprudence referred to is directly on point. Accordingly, the determination of whether the ATC communications are personal information within the meaning of s. 3 must be made on the application of general principles and a measure of common sense.
[11] Section 3 defines personal information as "information about an identifiable individual that is recorded in any form". There are three components to the definition:
· the information must be "about" an individual;
· the individual must be identifiable; and
· the information must be recorded.
[1] Speaking for the minority, but supported in his views on the interpretation of s. 3 by the majority of the Supreme Court of Canada, Justice La Forest in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paras. 68 - 69, had the following to say about the definition:
. . . 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; see J. Alan Leadbeater, "How Much Privacy for Public Officials?", speech to Canadian Bar Association (Ontario), March 25, 1994, at p. 17. Such an interpretation accords with the plain language of the statute, its legislative history and the privileged, foundational position of privacy interests in our social and legal culture. [emphasis added]
[2] These views of Justice La Forest were cited with approval by the Supreme Court of Canada in the recent decision in Canada (Information Commissioner) v. Canada (RCMP), [2003] 1 S.C.R. 66 at para. 23.
[3] Further, I note Justice La Forest's view, at para. 94 of Dagg:
[I]nformation relating primarily to individuals themselves or to the manner in which they choose to perform the tasks assigned to them is "personal information". [emphasis added]
[4] An expansive interpretation of s. 3 does not necessarily mean that every utterance of an individual is protected from disclosure under the Privacy Act. Even if a particular recording meets the definition of personal information, it may lose protection by the operation of a number of provisions of both the Privacy Act and the ATIA. For example, information that falls within the description of s. 3(j), (k), (l) or (m) of the definition (none of which is relevant here) is not considered personal information for certain purposes of the ATIA. In addition, despite information being personal, disclosure may be authorized pursuant to s. 19 of the ATIA.
[5] In my view, the legislative scheme provides a balance that is sensible and workable. Parliament has recognized the importance of individual privacy at the same time as it has provided a framework for weighing those privacy concerns against the important needs, at times, for disclosure. The public interest is well served by taking a broad view of what is "personal information" and then considering, under an equally expansive scheme, whether that information should, nevertheless, be disclosed.
[6] With these principles in mind, I turn to the facts of this case. There is no question that the ATC communications were recorded. The views differ on the other two aspects of the definition. I will consider each in turn.
Are the ATC communications about an individual?
[7] The Commissioner submits that the ATC communications are merely an exchange of information related to the provision of services. They are, in his view, "transactions" recorded in a system designed to keep track of information. ATC communications provided by NAV Canada are regulated as to content by s. 2 of the Civil Air Navigation Services Commercialization Act, S.C. 1996, c. 20 and s. 6 of the Radiocommunication Regulations SOR/96-484. The content of the communications is limited to the safety and navigation of aircraft, the general operation of the aircraft, and the exchange of messages on behalf of the public. These messages are highly regulated and transmitted over frequencies reserved specifically for aeronautical services. Users of these frequencies are statutorily required not to identify themselves using their names. All of this is correct.
[8] The Commissioner points out that the records contain information about the status of the aircraft, weather conditions, matters associated with air traffic control and the utterances of the pilots and controllers. Only a very few lines in one of the communications contain direct references to names or other information that the Commissioner acknowledges is personal.
[9] I agree with the Commissioner that these are recordings of "transactions" and that the information is almost exclusively technical. However, in my view, the ATC communications, when viewed in context, are also much more. The fact that they are a record of transactions and contain factual information does not preclude them from being personal information or information about the individuals.
[10] In this case, there are two different types of individuals involved; the ground crew of air traffic controllers and flight specialists and the air crew. To establish the nature of the communications, I look to the purpose for which they are made and used.
[11] Canada is a signatory to the Convention on International Civil Aviation signed at Chicago, Illinois on December 7, 1944 (the "ICAO Convention"). Included in Annex 10, Volume II to the ICAO Convention is a provision which mandates the logging of ATC communications. These standards are incorporated into Part VIII - Subpart 2 of the Canadian Aviation Regulations, SOR /96-433.
[12] Most of the time - thankfully - any given flight takes place without incident. In those cases, the tapes are kept for 30 days and are then destroyed. However, in a very few cases there may be an "aviation occurrence", which is defined in s. 2 the TSB Act as:
(a) any accident or incident associated with the operation of an aircraft, and
(b) any situation or condition that the Board has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (a).
Tout accident ou incident lié à l'utilisation d'un aéronef. Y est assimilée toute situation dont le Bureau a des motifs raisonnables de croire qu'elle pourrait, à défaut de mesure corrective, provoquer un tel accident ou incident.
[13] In such an event, the ATC communications become very important indeed. NAV Canada will notify the TSB of the incident. The TSB may commence an investigation of the occurrence, as happened with each of the occurrences that are the subject of these proceedings. The relevant ATC tapes are then provided to the TSB investigators. In the hands of the TSB, these tapes become much more than a "transaction"; they are used as part of the TSB investigation. As stated in the TSB Act:
7. (1) The object of the Board is to advance transportation safety by
(a) conducting independent investigations, including, when necessary, public inquiries, into selected transportation occurrences in order to make findings as to their causes and contributing factors;
(b) identifying safety deficiencies as evidenced by transportation occurrences;
(c) making recommendations designed to eliminate or reduce any such safety deficiencies; and,
(d) reporting publicly on its investigations and on the findings in relation thereto.
(2) In making its findings as to the causes and contributing factors of a transportation occurrence, it is not the function of the Board to assign fault or determine civil or criminal liability, but the Board shall not refrain from fully reporting on the causes and contributing factors merely because fault or liability might be inferred from the Board's findings. [emphasis added]
7. (1) Le Bureau a pour mission de promouvoir la sécurité des transports :
a) en procédant à des enquêtes indépendantes, y compris des enquêtes publiques au besoin, sur les accidents de transport choisis, afin d'en dégager les causes et les facteurs;
b) en constatant les manquements à la sécurité mis en évidence par de tels accidents;
c) en faisant des recommandations sur les moyens d'éliminer ou de réduire ces manquements;
d) en publiant des rapports rendant compte de ses enquêtes et présentant les conclusions qu'il en tire.
(2) Dans ses conclusions, le Bureau n'est pas habilité à attribuer ni à déterminer les responsabilités civiles ou pénales; ses conclusions doivent toutefois être complètes, quelles que soient les inférences qu'on puisse en tirer à cet égard.
[14] In doing its job, the TSB must examine how individuals involved with the occurrence did their jobs. What caused the accident? Were there safety deficiencies? More pointedly, did the actions of the controllers or the pilots involved contribute to the occurrence? One significant way of evaluating the individual performances of the personnel is through the ATC communications. The ATC communications are used to assess the manner in which the air traffic controllers and the aircraft personnel chose to perform the tasks assigned to them. A simple way of looking at this information is that the sole purpose for the existence of the ATC communications is to carry out an evaluation of the performance of the parties to those communications in the event that something goes wrong.
[15] For these reasons, I conclude that the ATC communications are "about" the individuals involved.
Are the individuals identifiable?
[16] The Commissioner submits that controllers cannot be identified unless a person has access to NAV Canada's shift log books. Neither common sense nor the evidence before me bears out this assertion. ATC communications only come to the attention of the TSB when there has been an unfortunate event. When an airplane crash or near miss occurs, significant interest by the press and the public will almost certainly follow. It is simply unrealistic to expect that pilots or, in some cases, traffic controllers will not be identified as being connected with an accident.
[17] The practice of air traffic controllers is to not refer to persons by name. However, this is not the only way in which the persons can be identified. Ms. Kathleen Fox, Assistant Vice-President of Air Traffic Services at NAV Canada, has 30 years of experience in the area of air traffic control. In her affidavit and in cross-examination on her affidavit, she opined that listening to the ATC tapes would allow identification of the aircraft, the location and operating initials of the specific controller. Further, the voices of the individual controller and pilot may be heard and identified. When asked, during cross examination on her affidavit, whether there were other identifiers which could lead a person to discover or locate the individuals, Ms. Fox stated:
Well, there's the aircraft identification itself. The civil registration or the flight number. There's the way the speaker identifies themselves as the [name of tower]. And there's also the use of operating initials by the individual controllers or specialists in conducting interphone conversations. There's certainly the voice of those - for those who may know that individual, who would recognize the voice. Especially if they knew where they worked and the date and time of the occurrence. So all of those things can lead to identification of the individuals involved.
[18] In the context of a request for information for ATC communications for an earlier incident involving the tragic crash of Swiss Air 111 off the coast of Nova Scotia, the Commissioner himself stated:
In my view, the voices, along with the tonal and emotive characteristics constitute personal information of the three air traffic controllers and the two pilots. Disclosure would link the information to identifiable individuals. It would also link the content contained in the public transcript to identifiable individuals. [emphasis added]
[19] Further evidence that controllers are identifiable was provided by Mr. Ron Brown, whose father was killed in the crash of a small plane in British Columbia (not one of the occurrences at issue in these proceedings). In a letter to NAV Canada seeking access to the tapes of the accident, Mr. Brown identified the controller on duty.
[20] I am persuaded that the individuals involved in the ATC communications are identifiable. Perhaps not with 100% accuracy but sufficiently to meet the requirement of s. 3 of the Privacy Act.
Do the individuals have a reasonable expectation of privacy?
[21] The Commissioner submits that, according to the analysis of Justice La Forest in Dagg, to be personal information, the individuals whose words are in issue must have a reasonable expectation of privacy. Building on this belief, the Commissioner argues that the controllers can have no expectation of privacy since they must be aware that: (a) the TSB may use and release the information contained in the ATC communications in the course of its investigation and report on an occurrence; and (b) parties are able to lawfully listen on scanners to the conversations in real time.
[22] There are two reasons why I do not accept the arguments of the Commissioner on this point. The first is that the Commissioner is reading words into both s. 3 and the analysis of Justice La Forest. The definition of "personal information" does not include the requirement that the parties hold a reasonable expectation of privacy. Further, Justice La Forest in Dagg, at para. 71, in considering "the reasonable expectation of privacy" principle, stated that it was not strictly necessary for his analysis. The question of whether someone holds an expectation of privacy may well enter into a subsequent analysis of whether, in spite of information being personal, it should be disclosed pursuant to s. 19(2) of the ATIA. But, it is not relevant for a determination of whether information is "personal information" as contemplated by s. 3.
[23] The second reason for rejecting this argument is that, even if this is a requirement, in the circumstances, I am satisfied that the air traffic controllers and the pilots - the parties to the communications - would not expect strangers to have access to the ATC communications in the manner sought by the Commissioner. Certainly, both the controllers and the pilots would know and expect that any mishap would be investigated, that the ATC communications would be carefully examined as part of that investigation and that the results of an investigation could make reference to (or even include) the ATC communications. However, this is a far cry from an admission that there is no expectation of confidentiality.
[24] This use of the ATC communications falls within the type of information that was referred to by Justice La Forest in Dagg, at para. 75:
In determining whether an individual has a reasonable expectation of privacy in a particular piece of information, it is important to have regard to the purpose for which the information was divulged; see Dyment, supra, at pp. 429-30, per La Forest J.; R. v. Plant, [1993] 3 S.C.R. 281, at pp. 292-93. 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. As I stated in Dyment, supra, at pp. 429-30, "situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected". [emphasis added]
[25] The ATC communications do not lose their character as personal communications merely because there is a legal obligation for the conversations to be recorded or for the tapes to be provided to the TSB if requested. The controllers and pilots have every right, in my view, to expect that use by the TSB of the ATC communications will be restricted to the purposes for which they were obtained. The information was not obtained by the TSB for the purposes of distributing it to the public at large; the TSB is not a publishing house for ATC communications.
[26] As a review of the record before me demonstrates, there are many indicators of the confidential nature of the ATC communications.
· The consistent policy of NAV Canada has been to protect the ATC communications and to not make them available to the public.
· The collective agreements governing the relationship between the unions and NAV Canada contain a clause prohibiting use of the tapes beyond what is required by law. NAV Canada training manuals require that such communications be treated as confidential.
· The policy of the TSB (discussed in more detail below, beginning at paragraph 59 has been to keep the ATC communications confidential.
· As noted earlier, the ICAO Convention guides the investigation of aviation occurrences. Section 5.12 of the convention provides that the State conducting the investigation shall not make ATC communications available for purposes other than the accident or incident investigation except in certain circumstances where the public interest outweighs the interest in non-disclosure. To a large degree, the TSB investigation mandate provided in its enabling legislation tracks precisely the relevant provisions of the ICAO Convention.
· A review of international practices demonstrates that non-disclosure of information of this nature is the norm.
[27] The Commissioner made much of the fact that third parties may listen to the ATC communications through the use of scanners. There appears to be a significant interest by a small community of persons in following the conversations between ground personnel and air crews. However, under s. 9(2) of the Radiocommunication Act, "no person shall intercept and make use of, or intercept and divulge" the ATC communications. Even if I accept that third parties may lawfully listen to the ATC conversations (an assumption with which I have considerable difficulty), further use or divulgence of the ATC communications would be contrary to s. 9(2). This reinforces the expectation that the conversations will be kept confidential.
[28] In conclusion on this point, this is not, as stated by the Commissioner, "a sound track of public business information. Rather the ATC communications exist for disclosure in a limited and controlled way. Thus, I am satisfied that the parties to the ATC communications have a reasonable expectation that their privacy will be respected.
Conclusion
[29] With respect to this issue, I am satisfied that the TSB was correct in concluding that the ATC communications are personal information within the meaning of s. 3 of the Privacy Act.
Issue #2: Should this personal information be disclosed?
[30] A conclusion that information is personal information does not end the analysis. Although s. 19(1) of the ATIA prohibits the head of a government institution from disclosing any record that contains personal information, s. 19(2) of the ATIA describes certain situations in which the head has the authority to release the information. Briefly, the exceptions provided in s. 19(2) are the following:
· the individual to whom it relates consents to the disclosure (s. 19(2)(a));
· the information is publicly available (s. 19(2)(b)); or
· the disclosure is in accordance with s. 8 of the Privacy Act (s. 19(2)(c)).
[31] Should any one of these exceptions exist, s. 19(2) provides that the head of the government institution may disclose the information. In this case, the first of these exceptions is not applicable and was not argued before me.
Is s. 19(2)(b) applicable?
[32] The second situation in which the TSB would have the authority to release personal information is where the information is publicly available (ATIA, s. 19(2)(b)). The parties agree that the standard of review of this determination is one of correctness; that is, I must be satisfied that the TSB was correct in concluding that the ATC communications were not "publicly available", within the meaning of s. 19(2)(b) of the ATIA. The Commissioner submits that the ATC communications are publicly available and thus meet the requirement of s. 19(2)(b).
[33] To ascertain whether s. 19(2)(b) would operate to authorize the TSB to release the information, I begin with the question of whether the ATC communications that are the subject of these applications are "publicly available".
[34] I will consider first the argument of the Commissioner that, because parties may intercept or listen to the communications, they are publicly available. Once again, I will put aside the Commissioner's argument that listening to the ATC communications through the use of scanners is a legal activity.
[35] To begin, I am not even aware that anyone listened to these particular communications by way of radiocommunication scanners. While I was presented with evidence that demonstrates that the use of scanners is widespread, I have no evidence to show that the ATC communications in this case (other than the Clarenville ATC communications that are discussed below) were heard by anyone.
[36] Further, even if the ATC Communications in this case had been intercepted, I do not believe that a one-time listening by one or more individuals brings the information into the public domain. It appears to me that, for information to be in the public domain, it must be available on an ongoing basis for use by the "public". For example, in Timiskaming Indian Band v. Canada (Minister of Indian and Northern Affairs), [1997] F.C.J. No. 676 (T.D.) at para. 34, this Court stated that documents that had not been disclosed before were in the public domain because "they have been available to the public who attend at the Registry and conduct searches and make specific requests for them under the existing Registry system". In these cases, there is no public registry or repository where a member of the public can search for these recordings or find the transcripts of these ATC communications. Thus, it is my view that information that is listened to once is not, without evidence of further and ongoing availability, in the public domain or publicly available.
[37] Next, I note that the words of the section use the present tense. That is, the provision allows the head of a government institution to disclose information if the information "is" publicly available. The ATC communications, even if I conclude that they were "publicly available" at the time they were made, are not now available for review or in the public domain. This applies to all of the ATC communications, except perhaps for those related to the Clarenville Occurrence.
[38] The situation with respect to the Clarenville Occurrence is different. The ATC audio recording and transcript were disclosed twice by the TSB upon receipt of ATIA requests. The request that is the subject of this application was the third request for the ATC Communications.
[39] The parties who received the Clarenville information are journalists. One of the journalists, a producer and director of the CTV news documentary programme W-Five, based a segment of a broadcast, in part, on the ATC communications and the other journalist included some of the information in a published book. Thus, with respect to the Clarenville ATC communications, dissemination of the information in the tapes and transcripts has been widespread. While, to date, neither of the journalists has played the entire contents of the tapes or printed the complete transcripts, it is possible that they still retain copies and could release those at any time. It is difficult, therefore, to conclude that the Clarenville ATC communications are not publicly available. For these reasons, I am satisfied that the Clarenville ATC communications are publicly available and, therefore, that the requirement of s. 19(2)(b) is met.
[40] If I am correct in this assessment of the Clarenville ATC Communications, the TSB had the authority to release the ATC communications upon request. The next question is whether the TSB was required to exercise this authority and release the information.
[41] The Commissioner relies on the decision of this Court in Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services) [1997] 1 F.C. 164, at paras. 43 - 44 ("Public Works") to argue that, once public availability has been established, the TSB has no discretion to refuse to disclose the information. Specifically, the Commissioner refers to the words of Justice Richard (as he then was) as follows:
The purpose of the Act not only calls for "a right of access to information", but states "that necessary exceptions to the right of access should be limited and specific." In this case, it is not clear why Parliament in these circumstances would grant a residual discretion to withhold information. Indeed, why should the Minister have an overriding concern in information that is in the public domain and that has been consented to be released? There is no public policy objective to be served by giving a discretion to refuse to disclose information which is publicly available or which has been consented to. Therefore, there is no purpose to be served by interpreting paragraphs 19(2)(a) and (b) as discretionary. The Access Act is replete with exemptions. Information from foreign states, commercial information and national security are just some of the exemptions contained in the Access Act. I see no reason to add one more.
Conversely, if subsection 19(2) is discretionary then why would the legislators use the superfluous language in paragraphs (a) and (b)? Why not just say the head of the government institution may disclose any record if the disclosure is in accordance with the public interest? Indeed, if paragraphs 19(2)(a) and (b) are discretionary then why discuss them at all? . . . . Parliament must have intended a useful purpose by including paragraphs 19(2)(a) and (b).
I find the purpose of these two paragraphs to be directive. If the interested party consents to the release of information, or if information is in the public domain, then the head of a government institution is directed to disclose that information.
[42] These comments are sensible and, at first blush, appear to be applicable to this case. If I follow this decision, the Commissioner tells me that I would be required to find that s. 19(2)(b) obligates the TSB to disclose those records. In other words, I am urged to conclude that the "may" in s. 19(2)(b) is directive.
[43] However, I do not think that this would be a just result in this situation. The earlier releases of the Clarenville ATC communications were made without any consideration of whether they contained personal information or whether they should be disclosed. Indeed, the subsequent analysis and conclusion by the TSB of these questions was that this information was personal information that should not be released. If correct in its subsequent decision, the first two releases should never have been made. Should the TSB be forced to compound that error by releasing the information again? In my view, this is a situation in which the TSB could reasonably exercise the discretion given it by inclusion of the word "may" in s. 19(2) and refuse to disclose the tapes and transcripts again. Further, in interpreting the "may" in s. 19(2)(b) as discretionary, I note the words of Justice La Forest in Dagg, at para. 108, where he stated that:
Of course, s. 19(2) of the Access to Information Act provides that the head of a government institution may disclose information in certain circumstances. Generally speaking, the use of the word "may", especially when it is used, as in this case, in contraindication to the word "shall", indicates that an administrative decision maker has the discretion and not the duty, to exercise a statutory power . . .
[44] Thus, while it may well be that the refusal to disclose could be of no practical effect if the journalists themselves decide to release the tapes and transcripts, I am not prepared, in these circumstances, to order the TSB to do so.
[45] On this matter, one further observation was made by the Commissioner. The ATC communications in respect of the Penticton Occurrence appear to have been before the Supreme Court of British Columbia in Sabourin Estate v. Watterodt Estate, 2004 BCSC 243. In that case, the Court was considering issues of liability arising from the incident. Excerpts from the transcript are included in the judgment. In my view, this does not lead to a conclusion that the ATC communications are "publicly available". Personal information is almost always available, through various means, to assist the courts in civil and criminal law cases. Further, in this case, the Commissioner provided me with no details of how the evidence was introduced or dealt with in the Supreme Court of British Columbia. While reference to and selective quotations from the ATC communications are included in the judgment, it may well be that the audio recording and transcripts themselves are subject to a confidentiality order. It would be regrettable if otherwise private information subject to non-disclosure obligations becomes "publicly available" and subject to mandatory disclosure merely because it has been referenced in a civil law suit.
Is s. 19(2)(c) of the ATIA applicable?
[46] In the circumstances of this case, the final way in which the TSB would have the authority to disclose the ATC communications is if disclosure of the information would be in accordance with s. 8 of the Privacy Act. The Commissioner presents arguments based on two different aspects of this section.
1. Are section 8(2)(a) and (b) of the Privacy Act applicable?
[47] The Commissioner first argues that s. 8(2)(a) and (b) apply to these facts. Pursuant to these provisions, the head of an institution is authorized to disclose personal information:
(a) for the purpose for which the information was obtained or compiled by the institution o