Date: 19980522
Docket: T-2790-96
BETWEEN:
DANIEL JOHN MISLAN
Applicant
- and -
MINISTER OF REVENUE CANADA
Respondent
REASONS FOR ORDER
ROTHSTEIN J.:
[1] The issue in this application is whether "personal information" about both the applicant and another person must be disclosed to the applicant under the Privacy Act, R.S.C. 1985, c. P-21, as amended.
[2] The applicant was the subject of a report prepared by an employee of the Department of National Revenue arising out of a sexual harassment complaint against him. Pursuant to an application under the Privacy Act the applicant obtained the report. However certain portions were expurgated. As a result of an appeal by the applicant to the Privacy Commissioner, further portions of the report were disclosed to him. However, some information was not disclosed on the basis that it was personal information about an individual other than the applicant. In this application the applicant seeks the information that has not yet been disclosed.
[3] Personal information is defined in section 3 of the Privacy Act. The pertinent portions of the definition are as follows:
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"personal information" means information about an identifiable individual that is recorded in any form... |
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[4] Subsection 12(1) of the Privacy Act provides a right of access to one's own personal information:
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12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of the Immigration Act has a right to and shall, on request, be given access to |
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(a) any personal information about the individual contained in a personal information bank; and |
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(b) any other personal information about the individual under the control of a government institution... |
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[5] Under section 26 the head of a government institution may refuse to disclose personal information about an individual other than the individual who made the request and shall refuse to disclose such information when disclosure is prohibited under section 8. Subsection 8(1) provides:
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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. |
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[6] Subsection 8(2) gives the head of a government institution discretion to disclose certain types of personal information. For example paragraph 8(2)(a) provides:
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8. (2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed |
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(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose. |
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[7] In this case the information at issue is personal information about both the applicant and another individual. The information is contained in the report involving a sexual harassment complaint. While the applicant is not referred to in each and every excerpt of the confidential information, there is no doubt the information is about him. With respect to the other individual (and in a few instances yet a third individual) there is no doubt that each excerpt refers to that individual and is personal information about that individual.
[8] Applicant's counsel suggested that some of the excerpts were "views of the individual given in the course of employment" and therefore, by definition not personal information by reason of subparagraph (j)(v) in the definition of personal information in section 3. However the information here is not "given in the course of employment". What is referred to in subparagraph (j)(v) would be views respecting matters within the scope of employment of employees of the Department of National Revenue. Views of a person respecting a sexual harassment complaint in which he or she is involved clearly qualify as personal information.
[9] The question is whether the applicant's right to personal information about himself is paramount to the discretionary power conferred on the head of the government institution to refuse to disclose information about another individual. I have concluded that the paramount power is the discretionary power granted to the head of the government institution.
[10] The purpose of the Privacy Act is set out in section 2:
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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. |
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[11] In Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147, aff'd (1993), 154 N.R. 319 (C.A.), Strayer J., as he then was, commenting on the purpose of the Privacy Act states at page 150:
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The primary purpose is to protect privacy, and the right of access given to any person to his own data must as much as possible be exercised so as to respect the right of others to the privacy of their data. |
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This observation provides a basis for the analysis in this case.
[12] Under subsection 12(1) the right of the individual to access personal information is "[s]ubject to this Act". The right is therefore not absolute. There are numerous exceptions to the right. For example under section 20 the head of the government institution may refuse to disclose any personal information requested under subsection 12(1) where the disclosure of such information could reasonably be expected to be injurious to the conduct by the Government of Canada of Federal Provincial Affairs.
[13] Under section 26 the right of the person making the request under subsection 12(1) to access his or her own personal information is subject to the requirement on, or the exercise of discretion by, the head of the government institution not to disclose information about another person. Specifically, when the information in question is about both the person making the request and another person the discretion to refuse disclosure by the head of the government institution is paramount to the right of the person making the request for his own personal information.
[14] In Kelly v. Canada (supra), Strayer J. outlines the procedure in cases such as this at page 149:
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It will be seen that these exemptions require two decisions by the head of an institution: first, a factual determination as to whether the material comes within the description of material potentially subject to being withheld from disclosure; and second, a discretionary decision as to whether that material should nevertheless be disclosed. |
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[15] As to the first decision I have reviewed the factual decision made to refuse disclosure and I am satisfied the information at issue is personal information about the applicant and another individual.
[16] As to the second decision Strayer J. provides the following guidance on page 149:
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The second type of decision is purely discretionary. In my view in reviewing such a decision the court should not itself attempt to exercise the discretion de novo but should look at the document in question and the surrounding circumstances and simply consider whether the discretion appears to have been exercised in good faith and for some reason which is rationally connected to the purpose for which the discretion was granted. |
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[17] I am satisfied that the discretion that was exercised was for a reason rationally connected to the purpose for which it was granted. The information is personal information about both the applicant and another individual and the exercise of such discretion is contemplated by section 26 and paragraph 8(2)(a) of the Act. There is no suggestion of bad faith or other reason that would render the exercise of discretion in this case unlawful.
[18] Having regard to these considerations there is no basis for the Court to interfere with the exercise of discretion by the head of the government institution.
[19] As noted by Strayer J. in Kelly v. Canada (supra) at page 148, in explaining why the decision of the head of the government institution to refuse disclosure is being upheld, I must not reveal the very information which I find has been properly withheld. However, I would observe that a number of excerpts not disclosed appear to be innocuous and it is not entirely clear why, in view of the personal information that was disclosed, some of the innocuous information has been kept confidential. However, as I have indicated, it is not for the Court to exercise discretion de novo.
[20] The application is dismissed.
"Marshall Rothstein"
J U D G E
TORONTO, ONTARIO
MAY 22, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2790-96
| STYLE OF CAUSE: DANIEL JOHN MISLAN |
- and -
| MINISTER OF REVENUE CANADA |
DATE OF HEARING: MAY 14, 1998
PLACE OF HEARING: CALGARY, ALBERTA
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: MAY 22, 1998
APPEARANCES:
Mr. William Johnston
For the Applicant
Mr. James Shaw
For the Respondent
SOLICITORS OF RECORD: McGowan, Johnston
245-1209 50th Avenue South East
Calgary, Alberta
T2H 2P6
For the Applicant
Department of Justice
Edmonton Regional Office
211 Bank of Montreal
10199-101 Street
Edmonton, Alberta
T5J 3Y4
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980522
Docket: T-2790-96
Between:
Applicant
- and -
| MINISTER OF REVENUE CANADA |
Defendant
REASONS FOR ORDER
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