Van Den Bergh v. Canada (National Research Council), 2003 FC 1116

Date: 20030929

Docket: T-121-02

Citation: 2003 FC 1116

Ottawa, Ontario, this 29^th day of September, 2003

Present:           THE HONOURABLE MR. JUSTICE O'REILLY                          

BETWEEN:

                                                            JOAN VAN DEN BERGH

                                                                                                                                                       Applicant

                                                                              - and -

                                       NATIONAL RESEARCH COUNCIL CANADA

                                                                                                                                                   Respondent

                                      REASONS FOR JUDGMENT AND JUDGMENT

[1]                 In 1999, the National Research Council ("NRC") began a new program for awarding its hardest-working and most talented employees with performance bonuses. Ms. Van Den Bergh is a Senior Labour Relations Officer with the Research Council Employees' Association, the union representing administrative, secretarial and technical staff at the NRC. In 2000, she asked the NRC, on behalf of the union, to provide the names of all the employees who had been awarded performance bonuses that year. She relied on the Access to Information Act, R.S.C. 1985, c. A-1. Dr. Arthur Carty, President of the NRC, refused Ms. Van Den Bergh's request because he felt that she was asking for personal information protected under the Privacy Act, R.S.C. 1985, c. P-21. (For ease of reference, the relevant provisions of the two Acts are set out in the attached Annex).

[2]                 Ms. Van Den Bergh complained to the Information Commissioner, arguing that her request fell under an exception in the Privacy Act relating to information about discretionary financial benefits (s. 3(l)). The NRC then disclosed the names of some employees - those who had received bonuses by virtue of their membership in a team or group. However, in a letter dated December 12, 2001, the Information Commissioner agreed with the NRC that it was not obliged to release the names of those persons who had received bonuses for individual efforts because that would, in effect, disclose their personal performance ratings.

[3]                 Ms. Van Den Bergh has applied to the Court for judicial review of the NRC's refusal and has asked me to order the NRC to provide those names. I have found that the information Ms. Van Den Bergh seeks is not protected by the Privacy Act and, therefore, that the NRC has a duty to provide it to her.

I. Issues

[4]                 The parties agree that the appropriate standard of review of the NRC's decision is one of correctness, given that it was based on an interpretation of the law, an area in which the NRC has no special expertise: Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] S.C.J. No. 7, 2003 SCC 8">2003 SCC 8 (QL). In other words, I must intervene if I conclude that the NRC's decision was wrong.

There are two issues:

1.          Can the names of persons who receive performance bonuses be disclosed on the basis of an exception in the Privacy Act?

2.          Can the head of the NRC disclose the names under the Access to Information Act?

A.         Can the names of persons who receive performance bonuses be disclosed on the basis of an exception in the Privacy Act?

(1) The legislation in issue

[5]                 The Access to Information Act and the Privacy Act are two sides of a single coin. Together they set out the rules governing disclosure and protection of information held by the federal government. They are equally important statutes and, when applying them, judges must read them together. As Justice Gonthier has stated, these statutes contain "a seamless code with complementary provisions that can and should be interpreted harmoniously". RCMP, supra, at para. 22.

(2) The information sought by Ms. Van Den Bergh

[6]                 The Access to Information Act allows individuals access to government records, but prohibits disclosure of "personal information"(s. 19(1)), defined generally in the Privacy Act as "information about an identifiable individual that is recorded in any form" (s. 3). Clearly, information about a person's job performance is personal information and, as such, it is generally confidential.

[7]                 It must be noted, however, that the information sought here is not very specific. Ms. Van Den Bergh did not ask for any individual performance evaluations, nor did she want to know the amount of any bonuses. She only asked for a list of names of persons who had been awarded bonuses. She claimed to be interested in the overall distribution of the awards across the NRC's various branches.

[8]                 Counsel for the NRC argued that releasing the list of names would make it very easy to determine a particular person's performance rating. Therefore, he argued, the personal information involved here includes employees' actual performance evaluations, not just their names. The Information Commissioner agreed with this position. He endorsed the NRC's decision to release the names of persons who received bonuses for reasons other than individual achievement and then said: "In my view, this decision eliminates the discretion issue because the names that remain withheld involve the individual performance ratings evaluation".

[9]                 The NRC's submission is flawed. It developed general criteria for granting performance bonuses, but allowed individual branches to alter or supplement them. Under the general criteria, employees became eligible for a bonus if they performed at the "superior" or "outstanding" level. However, some sectors of the NRC departed from that approach. Some employees were eligible for a bonus if they performed at the "fully satisfactory" level or higher. Others were eligible even without achieving any particular performance rating so long as they satisfied other criteria instead. The managers of the various branches established and published the guidelines that applied to their employees.

[10]            Accordingly, if the NRC were to identify the persons who received bonuses, one could merely deduce that, in certain branches, the named individuals had achieved performance ratings at the upper end of the spectrum and, in others, that they must have made some kind of special contribution to their workplace. One would not know the rating that a particular person had achieved. In any case, even the general information that Ms. Van Den Bergh requested from the NRC comes within the broad definition of "personal information" in the Privacy Act. However, the Act goes on to list a number of exceptions to that definition. Accordingly, the next question is whether there is an exception that applies here.

(3) The applicable exception

[11]            The Privacy Act declares that information relating to "any discretionary benefit of a financial nature . . . including the name of the individual and the exact nature of the benefit" is not "personal information" (s. 3(l)). Clearly, the employees who received bonuses from the NRC obtained a financial benefit. The only question is whether that benefit was "discretionary".

[12]            In my view, the entire bonus program was discretionary. The NRC had no obligation to establish it. Senior managers evaluated their employees' contributions to the workplace and assigned performance ratings accordingly. Where other factors played a role, senior managers had to weigh them. In turn, they determined the amount given to each recipient. Everything about the program was discretionary.

[13]            In this respect, the NRC's program differs from a pension scheme based on precise eligibility criteria. The latter is not a discretionary benefit and, therefore, the exception set out in s. 3(l) of the Privacy Act does not apply to it: Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), [1997] 1 F.C. 164 (QL) (T.D.).

[14]            Accordingly, the Privacy Act's exception relating to discretionary financial benefits appears to apply here. However, there is a further issue to consider.

[15]            The Privacy Act contains another exception relating to information about public servants (s. 3(j)). It permits disclosure of a number details about public employees, including their job titles, addresses, telephone numbers, job classifications and salary ranges. Counsel for the NRC argued that this exception defines exhaustively the kinds of information that can be disclosed about public servants and that the other exceptions in the Privacy Act, including the one relating to discretionary benefits, simply do not apply to public servants.

[16]            The case law supports this argument - but only to a limited degree. The Supreme Court has held that personal information about public employees that is not specifically mentioned in s. 3(j), including performance appraisals, cannot be disclosed: RCMP, supra. Justice Gonthier, speaking for the entire Court, said, at para. 35:

A considerable amount of information that qualifies as "employment history" remains inaccessible, such as the evaluations and performance reviews of a federal employee, and notes taken during an interview. Indeed, those evaluations are not information about an officer or employee of a government institution that relates to the position or functions of the individual, but are linked instead to the competence of the employee to fulfil his task.

[17]       Similarly, because s. 3(j) refers specifically to the "salary range" of a public employee, Justice Muldoon held that the parallel exception for discretionary financial benefits in s. 3(l) does not permit disclosure of a person's specific salary or daily fee: Rubin v. Canada (Clerk of the Privy Council), [1993] F.C.J. No. 287 (QL) (T.D.).

[18]            Still, neither of these cases suggests that the information Ms. Van Den Bergh seeks cannot be disclosed. According to the RCMP case, the personal performance evaluations of public employees should remain confidential, even though other details about their employment history can be disclosed. However, as noted above, the NRC would not be revealing the performance evaluations of its employees simply by naming those who received bonuses.

[19]            Further, there is no tension here between s. 3(j) and s. 3(l), as there was in Rubin, supra. There, one provision specifically permitted disclosure of a public employee's salary range, while the other dealt generally with financial benefits. The Court simply concluded that the specific provision should prevail over the general one. Here, Ms. Van Den Bergh asks the NRC to disclose the names of employees who received a bonus - not their salary, nor even the amount of the bonus. There is no tension between the two exceptions at issue here, and no basis for concluding that s. 3(l) cannot apply to public employees.

[20]            Accordingly, the information Ms. Van Den Bergh seeks is not "personal information" according to the Privacy Act. Therefore, the NRC should have granted her request.

B.          Can the head of the NRC disclose the names under the Access to Information Act?

[21]            Ms. Van Den Bergh argued that there were two other grounds on which the information she sought could be released. Because I have already concluded that the information at issue here can be disclosed, it is unnecessary for me to address these additional arguments in any great detail. However, because these issues were contested, I will discuss them briefly.

[22]            The head of the NRC had a discretion whether to release the names, and his decision is entitled to some deference: Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403. I make no specific finding as to whether his decision was reasonable. I merely note the bases on which he might have exercised his discretion differently.

(1) Consent

[23]            Under the Access to Information Act, the head of a government institution may disclose personal information if "the individual to whom it relates consents" (s. 19(2)(a)).

[24]            When the NRC announced its program, it informed employees that the "names of performance bonus recipients may be made public by NRC, but other information will be kept private" (NRC Performance Bonus Guidelines, 5.15.4.10). In due course, bonus recipients were asked if they consented to having their names made public. Many said yes.

[25]            However, the President of the NRC decided that the consents were not clear. I do not have before me all of the consent forms (each branch seems to have created its own), but the ones I have seen seem clear enough. The following are some examples:

"I wish to see my name appear on any list of bonus recipients".

"I agree to have my name made public".

"J'accepte que mon nom soit publié".

[26]            I do not see any ambiguity in these consents, particularly when the NRC had already informed its employees that the names might be made public.

(2) The public interest

[27]            The head of a government institution may also disclose personal information where "the public interest in disclosure clearly outweighs any invasion of privacy that could result" (Access to Information Act, s. 19(2)(c); Privacy Act, s. 8(2)(m)(i).

[28]            According to the Information Commissioner, the NRC duly weighed the public interest and the privacy of its employees. He concluded that "the public interest override is not justified in this case." As Justice Muldoon said of this weighing exercise: "The mere assertion of the result falls far short of justification by appropriate reasons" (Bland v. National Capital Commission, [1991] 3 F.C. 325 (QL) (T.D.), at p. 341).

[29]            It is unclear to me why the head of the NRC concluded that the privacy interest was paramount over the public interest here. Given that the information Ms. Van Den Bergh sought was of a general nature and the purpose for which she was seeking it was to undertake a legitimate analysis of the expenditure of public funds, a serious weighing of the public and private interests at stake might well have justified disclosure.

II. Conclusion

[30]            The identity of persons who received performance bonuses from the NRC is not "personal information" because it is information relating to a discretionary financial benefit under s. 3(l) of the Privacy Act. As such, Ms. Van Den Bergh is entitled to have access to that information.

[31]            Accordingly, this application for judicial review is allowed. The National Research Council is ordered to provide Ms. Van Den Bergh with the names of employees who received performance bonuses in the year 2000. Ms. Van Den Bergh is entitled to her costs.

                                                                        JUDGMENT

IT IS HEREBY ADJUDGED that:

1.          The application for judicial review is allowed;

2.          The National Research Council is ordered to provide Ms. Van Den Bergh with the names of the employees who received performance bonuses in the year 2000;

3.          Costs to the applicant.

                                                                                                                                      "James W. O'Reilly"        

                                                                                                                                                               Judge                   

                                                                            ANNEX