Canada (Information Commissioner) v. Canada (Commissioner of The Royal Canadian Mounted Police), docket T-635-99

Date: 19991118

Docket: T-635-99

BETWEEN:

     THE INFORMATION COMMISSIONER OF CANADA

     Applicant

     - and -

     THE COMMISSIONER OF THE ROYAL CANADIAN MOUNTED POLICE

     Respondent

     REASONS FOR ORDER

CULLEN J.:

[1]      This is an application for review, pursuant to paragraph 42(1)(a) of the Access to Information Act. R.S.C. 1985, c. A-1 (hereinafter Information Act), of a decision by the Commissioner of the Royal Canadian Mounted Police, dated February 12, 1999, not to disclose records requested by Mr. Gordon Ronalds. The applicant seeks an order directing the respondent to disclose to Mr. Ronalds the records or portions thereof which do not qualify for exemption from disclosure under subsection 19(1) of the Information Act.

Facts

[2]      Mr. Gordon Ronalds wrote the Royal Canadian Mounted Police (hereinafter RCMP) in a letter dated June 4, 1998, requesting copies and lists of numerous documents under their control or in their possession. Part of this request was made pursuant to the Information Act, including his request of:

" a historical list of postings, including status during the posting and relevant dates, occupied by four RCMP officers;

" copies of all public complaints filed against each of the above individuals;

" name and address for service of members or former members who served as NCO I/C RCMP detachment Baddeck, Nova in August, 1986.

The RCMP replied in a letter dated July 23, 1998 that all the information requested was exempt from disclosure under subsection 19(1) of the Information Act. Subsection 19(1) provides:

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.

[3]      The RCMP took the position that the information in question related to the employment history of the officers named in the request and, therefore, that it was personal information pursuant to section 3 of the Privacy Act. Section 3 provides:

3. In this Act,

"personal information" means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

     [...]

(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

     [...]

3. Les définitions qui suivent s'appliquent à la présente loi.

"renseignements personnels" Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment_:

     [...]

b) les renseignements relatifs à son éducation, à son dossier médical, à son casier judiciaire, à ses antécédents professionnels ou à des opérations financières auxquelles il a participé;

     [...]

[4]      Mr. Ronalds complained to the Information Commissioner of Canada (hereinafter Information Commissioner) in a letter dated July 28, 1998. This office contacted the RCMP on behalf of the requester, taking the position that the RCMP should release the information requested. Supt. Lesser responded, in a letter dated October 27, stating that the RCMP would release information concerning the current postings and positions of the officers in question and the last posting and position of the former officer who had served in Baddeck, N.S. prior to his retirement. The RCMP would not, however, release any other information.

[5]      In a letter dated January 21, 1999, the Information Commissioner began asking for the following information with regards to the officers in question:

     " an historical list of when and where they had been posted,

     " a list of their ranks and when they had attained each rank,

     " their effective dates,

     " their total years of service and

     " their anniversary dates.

The Information Commissioner claimed that this information was exempted from the definition of personal information by subsection 3(j) of the Privacy Act. This subsection provides:

3. In this Act, "personal information" means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,      [...] but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not include      (j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,          (i) the fact that the individual is or was an officer or employee of the government institution,          (ii) the title, business address and telephone number of the individual,          (iii) the classification, salary range and responsibilities of the position held by the individual,          (iv) the name of the individual on a document prepared by the individual in the course of employment, and          (v) the personal opinions or views of the individual given in the course of employment,

3. Les définitions qui suivent s'appliquent à la présente loi. "renseignements personnels" Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment_:      [...] toutefois, il demeure entendu que, pour l'application des articles 7, 8 et 26, et de l'article 19 de la Loi sur l'accès à l'information, les renseignements personnels ne comprennent pas les renseignements concernant_:      j) un cadre ou employé, actuel ou ancien, d'une institution fédérale et portant sur son poste ou ses fonctions, notamment_:          (i) le fait même qu'il est ou a été employé par l'institution,          (ii) son titre et les adresse et numéro de téléphone de son lieu de travail,          (iii) la classification, l'éventail des salaires et les attributions de son poste,          (iv) son nom lorsque celui-ci figure sur un document qu'il a établi au cours de son emploi,          (v) les idées et opinions personnelles qu'il a exprimées au cours de son emploi;

[6]      In a letter dated February 12^th, 1999, the Commissioner of the RCMP refused to release this information. The Information Commissioner sought the consent of the requester in order that it might apply to this Court for an order requiring the Commissioner of the RCMP to do so.

Legal Issues

[7]      The Information Commissioner brings this application for review pursuant to paragraph 42(1)(a) of the Information Act. This paragraph provides:

42. (1) The Information Commissioner may      (a)_ apply to the Court, within the time limits prescribed by section 41, for a review of any refusal to disclose a record requested under this Act or a part thereof in respect of which an investigation has been carried out by the Information Commissioner, if the Commissioner has the consent of the person who requested access to the record;

42. (1) Le Commissaire à l'information a qualité pour_:      a) exercer lui-même, à l'issue de son enquête et dans les délais prévus à l'article 41, le recours en révision pour refus de communication totale ou partielle d'un document, avec le consentement de la personne qui avait demandé le document;

He has raised four important issues. The first issue concerns the burden and onus of proof which bears on the parties in this case. The second issue concerns the relevance of the Information Act"s purpose in interpreting subsection 3(j) of the Privacy Act. The third issue concerns whether the information in question is personal information or whether it is caught by an exemption to the definition of personal information found in the Privacy Act, R.S.C. 1985, c. P-21. The fourth issue concerns whether the respondent properly exercised his discretion found in subsection 19(2) of the Information Act.

[8]      As this application is brought under the Information Act, the Court recognizes that the application is subject to the procedural requirements stipulated in the Information Act. As such, section 48 of the Information Act lays the burden of proof squarely on the RCMP to establish that its Commissioner is authorized not to disclose the requested information. Section 48 provides:

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.

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.

As noted by LaForest J."s minority decision in Dagg v. Canada (Minister of Finance) , [1997] 2 S.C.R. 403 (hereinafter Dagg), this burden remains with a tribunal throughout a review. Though counsel for the applicant cited many cases which go to some lengths in describing the onus of proof which the respondent must meet, this Court is satisfied that the term balance of probabilities encompasses the other terms comfortably and is adequate for the purposes of resolving this dispute; see Canada (Information Commissioner) v. Canada (Prime Minister) (T-1418-92, T-1867-92, T-1524-92, T-1390-92, November 19, 1992) (F.C.T.D.).

[9]      The second issue raised by the applicant concerns his assertion that the exemption to the definition of personal information which is found in subsection 3(j) of the Privacy Act should be interpreted narrowly in light of the need to ensure that the purpose of the Information Act is to be given effect. The applicant relies for this proposition on Dagg, supra. Where there are two interpretations which are open to the Court, the applicant relies on Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430 (F.C.A.) (hereinafter Rubin) in submitting that the interpretation least infringing the public"s right to access must be chosen. The respondent allows that the purpose of the Information Act is relevant to the task at hand but submits that Dagg requires a balancing of this purpose with that of the Privacy Act.

[10]      The respondent is correct in asserting that not only is respect be paid to the purpose of the Information Act but that the purpose of the Privacy Act must also weigh in the balance. As La Forest J. wrote in Dagg:

It is clear, therefore, that Parliament did not intend access to be given preeminence over privacy. The appellant correctly points out that under the Access to Information Act, access is the general rule. It is also true that exceptions to that rule must be confined to those specifically set out in the statute and that the government has the burden of showing that information falls into one of these exceptions. It does not follow, however, that the "personal information" exemption should receive a cramped interpretation. To do so would effectively read the Privacy Act as subordinate to the Access to Information Act.

La Forest J. reaffirms this statement later on in his reasons:

The determination of what constitutes "personal information" is an interpretive exercise; an exercise that will inevitably require a consideration of the competing values of access and privacy.

As for Rubin, supra the Court of Appeal had before it the task of interpreting words that were contained within section 16 of the Information Act, a task somewhat different than the one before this Court. Its conclusions must be read with this in mind.

[11]      The third issue raised by the applicant concerns whether subsection 19(1) of the Information Act and subsection 3(j) of the Privacy Act operate together to prevent the disclosure of the information in question. There is no dispute that the information satisfies the definition of personal information found in subsection 3(b) of the Privacy Act. The dispute arises over whether the exemption to subsection 3(b) that is contained in subsection 3(j) applies to the information. If it does, the information will not be governed by subsection 19(1) of the Information Act.

[12]      The applicant submits that the information in question falls under the exemption found in subsection 3(j) of the Privacy Act and that it is, therefore, not governed by subsection 19(1) of the Information Act. In particular, the applicant submits that subsection 3(j) exempts not only information pertaining to current positions held by the officers in question but also exempts information about past positions. The applicant further submits, in effect, that subsection 3(j) of the Privacy Act is retrospective in nature vis a vis all information relating to an officer"s position or functions. The applicant submits that the information in question is factual in nature. He finally submits that the information relates to the various positions occupied by the officers in question as opposed to the officer"s themselves.

[13]      In support of the first submission, the applicant argues that the effect of subsection 33(2) of the Interpretation Act, R.S.C. 1985, c. I-21 is to lend a retrospective nature to subsection 3(j). This provision stipulates that words in the singular must be read as including the plural:

33. (2) Words in the singular include the plural, and words in the plural include the singular.

33. (2) Le pluriel ou le singulier s'appliquent, le cas échéant, à l'unité et à la pluralité.

[14]      The applicant submits that, under this subsection the word "position" in subsection 3(j ) is to be interpreted as referring not only to one position but to many positions and, therefore, must be read as referring to all the positions held by an officer throughout his or her career. The respondent submits that any reference to positions could be a reference to several positions held contemporaneously by an officer. Assuming that subsection 33(2) applies in the manner in which the applicant suggests, this Court is satisfied that its use infers that the provision is to apply to a number of positions held simultaneously.

[15]      The applicant also submits that the use of the phrase "in the course of employment" in paragraphs 3(j )(iv) and (v) infers that subsection 3(j) as a whole contemplates past positions. The respondent is correct to point out, however, that the presence of the phrase "in the course of employment" in paragraphs 3(j )(iv) and (v) actually serves to distinguish them from paragraphs 3(j)(i) to (iii) and from the main body of subsection 3(j), which do not contain the phrase. This Court accepts that the principle of statutory interpretation against tautology in a legislative provision applies to the subsection. As Ms. R. Sullivan states in Statutory Interpretation at 56:

The legislature does not include unnecessary or meaningless language in its statutes; it does not use words solely for rhetorical or aesthetic effect; it does not make the same point twice. This is what is meant when it is said that the legislature "does not speak in vain."

The Court cannot infer a retrospective nature to the main body of subsection 3(j) without implying that the phrase "in the course of employment", as found in paragraphs 3(j )(iv) and (v), is merely colourful rhetoric. In the circumstances, it chooses not to do so.

[16]      The applicant submits that the fact that subsection 3(k) of the Privacy Act applies retroactively implies that subsection 3(j) also applies retroactively. The applicant bases this submission on the assertion that the two subsections share a similar intent and structure. The respondent did not address this submission, either in its memorandum or in its oral arguments. The Court is fully capable, nevertheless, of determining this submission due to the faulty basis on which it is grounded.

[17]      The structure of subsection 3(k) is different in one important way from the structure of subsection 3(j). Subsection 3(k) provides:

(k) information about an individual who is or was performing services under contract for a government institution that relates to the services the individual given in the course of the performance of those services, performed, including the terms of the contract, the name of the individual and the opinions or views of

k) un individu qui, au titre d'un contrat, assure ou a assuré la prestation de services à une institution fédérale et portant sur la nature de la prestation, notamment les conditions du contrat, le nom de l'individu ainsi que les idées et opinions personnelles qu'il a exprimées au cours de la prestation;

This provision exempts information concerning services which have been performed in the past pursuant to a contract with a government institution. This is inferred by the provision"s use of the phrase "information [...] that relates to the services performed". Though the difference between the subject matter of both provisions - positions and contracts, might be negligible, subsection 3(j ) contains no such use of the past tense when referring to its subject matter. This is an important difference in the structure of the two subsections, one which renders any analogy between the two potentially misleading. Differences existing between subsection 3(j) and 3(l) also make analogies drawn between these two subsections open to error.

[18]      The applicant submits that Parliament intended to distinguish between private sector information which should not be disclosed and public service related information which should be subject to disclosure. The fine line that must be drawn here, however, is not aided by the exercise in labelling which the applicant proposes. The proper exercise, as noted by LaForest in Dagg is one of balancing interests:

The Access to Information Act clearly provides that "personal information" is not to be disclosed except in certain specified circumstances. Of course, the determination of what constitutes "personal information" will involve a balancing of competing values. Such a balancing process, where mandated by legislation, cannot be avoided simply because it might be easier to apply a clear, bright-line rule that favours one interest over another. By employing the considerations set out in the Privacy Act, courts are perfectly capable of developing a jurisprudence that achieves consistency in principle.

[19]      The applicant submits that the use of the word "including" in subsection 3(j ) implies that the matters contained in the subsection are only examples and that the list laying out these matters is not exhaustive. The applicant relies for this submission on a minority decision of LaForest J. in National Bank of Greece (Canada) v. Katsikonouris, [1990] 2 S.C.R. 1029. LaForest J. was involved, however, in an exercise of contractual interpretation and his comments bear little weight in an exercise of statutory interpretation except to the extent that they rest on the principles applicable to statutory interpretation.

[20]      If the applicant implies that the plain meaning of the word "include" is that whatever appears in a list immediately after the word should be understood to be merely illustrative, then this implication cannot serve to move the Court. The applicant is attempting to give a similar interpretation to the word "include" as was given by La Forest J. in Dagg, supra when interpreting the phrase "including, without restricting the generality of the foregoing". The latter phrase can be found at the beginning of section 3 of the Privacy Act . To give both phrases what amounts to essentially the same meaning would destroy the inference that Parliament will apply different meanings to different words in order to maintain consistency within a provision. The Court is not prepared to do so in the absence of submissions by counsel.

[21]      The applicant submits that the Court should turn to the Treasury Board for guidance in interpreting subsection 3(j) of the Privacy Act and that it should, in particular, adhere in its interpretation to that found in the Treasury Board Manual on Access to Information (Ottawa: Ministry of Supply and Services Canada, 1993) (hereinafter ATIA Manual). The respondent submits that the ATIA Manual is not binding on this Court.

[22]      The ATIA Manual embodies the policies, directives and guidelines developed and implemented by the President of the Treasury Board as Minister designated to co-ordinate the government-wide management of the Information Act. It provides:

Paragraphs [3](j), (k) and (l) exclude specific types of information, normally considered to be personal information, from the meaning of the term where a request for information is made under the Access to Information Act. Thus a section 19 exemption cannot be claimed for information relating to the current or past positions or functions of a government employee (see paragraph) (j))

There is no doubt in the mind of the Court that the President of the Treasury Board is an expert in interpreting the Information Act. It should be noted, however, that no evidence was placed before this Court to suggest that the President is also the Minister designated by section 3 of the Privacy Act to oversee this Act. Section 3 provides:

3. In this Act, "designated Minister", in relation to any provision of this Act, means such member of the Queen's Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of that provision;

3. Les définitions qui suivent s'appliquent à la présente loi. "ministre désigné" Le membre du Conseil privé de la Reine pour le Canada chargé par le gouverneur en conseil de l'application d'une ou de plusieurs dispositions de la présente loi.

Nor is there any evidence before this Court that the ATIA Manual constitutes the directives and guidelines concerning the operation of the Privacy Act which the designated Minister is required to create. Paragraph 71(1)(d) of the Privacy Act provides:

71. (1) Subject to subsection (2), the designated Minister shall      [...]      (d) cause to be prepared and distributed to government institutions directives and guidelines concerning the operation of this Act and the regulations; and

71. (1) Sous réserve du paragraphe (2), le ministre désigné est responsable_:      [...]      d) de la rédaction des directives nécessaires à la mise en oeuvre de la présente loi et de ses règlements et de leur diffusion auprès des institutions fédérales;

The Court is engaged in an exercise of interpreting both section 19 of the Information Act and section 3 of the Privacy Act. The Court must place less weight on the text within the ATIA Manual than the applicant no doubt would wish while it is engaged in the second part of this exercise. The Court is surprised that no evidence was placed before it concerning the guidelines and policies promulgated under paragraph 71(1)(d).

[23]      Interpreting section 3 of the Privacy Act involves not only the use of principles of statutory interpretation but also leans heavily on the purposes of both the Information Act and the Privacy Act. After careful consideration and the balancing of the respective interests entrenched in both enactments, the Court must conclude that the general nature of subsection 3(j) is not retrospective. The exceptions to this general nature are to be found in paragraphs 3(j)(iv) and (v) which the applicant correctly submits cry out for an historical application. The applicant emphasized how many privacy rights public servants abandon upon taking up their positions but this abnegation of rights cannot result in the wholesale surrender of all rights to privacy in respect of employment history.

[24]      This result also respects the legislative context within which subsection 3(j) rests. It acknowledges that the retrospective character of paragraphs 3(j)(iv) and (v) is not built on superfluous words and it respects the attempt by Parliament, as evinced in subsection 3(b), to shelter the employment history of its servants from total exposure. Were all paragraphs of subsection 3(j) given a retrospective bearing, there would be little left to contemplate in private and little meaning to the protection of employment history given by subsection 3(b). Paragraph (iii) in particular contains many of the touchstones of a public servant"s career and should be thrown into the public sphere only on the clearest of indications in respect of Parliamentary intentions.

[25]      The respondent having satisfied his burden of establishing that the general nature of subsection 3(j) of the Privacy Act is not retrospective, there is no need for this Court to examine whether the information in question is factual in nature. Nor will this Court comment on whether the requested information relates to the positions held by the four officers as opposed to the officers themselves. Suffice it to say that paragraphs 3(j)(i) to (iii) apply only to a public servant"s current position or to the position last held by a former public servant.

[26]      The fourth issue that the applicant submitted concerns whether the respondent properly fulfilled the requirements of subsection 19(2) of the Information Act. The applicant argues that the respondent did not properly exercise a requirement to turn his mind to the question of whether the requested information could be disclosed in accordance with section 8 of the Privacy Act. The applicant further argues that the information falls under subparagraph 8(2)(m)(i) of the Privacy Act and, therefore, that it should be disclosed. The applicant requests that this Court make a determination in its favour with respect to both of these matters. The respondent made no submissions in this regard.

[27]      There are two distinct steps which must be taken in exercising the discretionary decision-making powers under subsection 19(2) of the Information Act. Subsection 19(2) provides:

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.

The first step is for the tribunal, in the present case the respondent, to consider whether the information in question falls under one of the enumerated paragraphs. The second step is the actual decision itself. The applicant argues that there is no evidence before this Court to suggest that the respondent considered the applicant"s request for a public interest waiver pursuant to section 8 of the Privacy Act . This Court agrees.

[28]      The applicant submits that this Court should follow in the footsteps of Muldoon J. in Bland v. Canada (National Capital Commission), [1991] 3 F.C. 325 (F.C.T.D.) (hereinafter Bland) and exercise the respondent"s discretion to disclose the information in question pursuant to subparagraph 8(2)(m )(i) of the Privacy Act. This Court considers itself bound in this matter, however, by the reasons of La Forest J. in Dagg, supra. La Forest J. addressed the very issue that the applicant raises after a review of Bland, supra, and other similar decisions:

To the extent that these decisions can be said to stand for the proposition that the Minister's decision to refuse to disclose a record pursuant to the public interest exception set out in s. 8(2)(m)(i) of the Privacy Act is to be reviewed on a de novo standard, they are clearly incorrect.

[29]      The proper approach in reviewing a decision (or lack thereof) under subparagraph 8(2)(m)(i) of the Privacy Act was also considered by La Forest J. in the following passage:

In Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147, Strayer J. discussed the general approach to be taken with respect to discretionary exemptions under the Privacy Act.    He stated, at p. 149:

         [...]

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.

In my view, this is the correct approach to reviewing the exercise of discretion under s. 8(2)(m)(i) of the Privacy Act.

[30]      As mentioned previously, there is no evidence that the respondent has exercised his statutory discretion to consider whether the information in question might be disclosed pursuant to subparagraph 8(2)(m)(i) of the Privacy Act. On an application of the appropriate standard of review for discretionary decisions, therefore, this Court finds that the respondent has failed in his exercise of discretion required under subsection 19(2) of the Information Act.

Conclusion

[31]      The information requested by the applicant was not required to be disclosed pursuant to subsection 19(1) of the Information Act. The respondent failed, nevertheless, in the exercise of his discretion under subsection 19(2). This Court orders, therefore, that the matter of whether the information should be released pursuant to subparagraph 8(2)(m)(i) of the Privacy Act be considered by the respondent.

[32]      As the applicant sought to apply principles that are well founded no order as to costs will be awarded under subsection 53(2) of the Information Act.

     "B. Cullen"

     Judge

Ottawa, Ontario

November 18, 1999