Canada (Information Commissioner) v. Canada
(Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66,
2003 SCC 8
Information Commissioner of Canada Appellant
v.
Commissioner of the Royal Canadian Mounted Police Respondent
and
Privacy Commissioner of Canada Intervener
Indexed as: Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian
Mounted Police)
Neutral citation: 2003 SCC 8.
File No.: 28601.
2002: October 29; 2003: March 6.
Present: McLachlin C.J. and Gonthier, Iacobucci, Major,
Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
on appeal from the federal court of appeal
An individual requested certain information from the
RCMP pertaining to four of its officers. The RCMP refused to disclose the
information on the grounds that the records contained “personal information”,
as defined by s. 3 of the Privacy Act , and therefore were exempt
from disclosure pursuant to s. 19(1) of the Access to Information Act .
A complaint was made to the Information Commissioner, who undertook an
investigation. During that investigation, the RCMP informed the Information
Commissioner that it would release the current postings and positions of the
four serving RCMP members and the last posting and position of the one retired
RCMP member. However, the RCMP maintained its position that the remaining
information was “personal information” and thus exempt from the disclosure
requirements. The Information Commissioner found that the information relating
to the previous RCMP postings of the four officers, as well as certain other
job‑related information contained in the relevant records, did not
constitute “personal information”. He recommended that the RCMP disclose the
list of the officers’ historical postings, their status and date; the list of
ranks and the dates they achieved those ranks; their years of service; and
their anniversary date of service. The RCMP indicated that it would not follow
the Information Commissioner’s recommendation. The Information Commissioner
applied to the Federal Court, Trial Division, for an order directing the RCMP
to disclose the records or portions thereof which do not qualify for exemption
from disclosure under s. 19(1) of the Access to Information Act .
The Trial Division held that only information related to a public servant’s
current position or a former public servant’s last position needed to be
released. The Federal Court of Appeal upheld that decision.
Held: The
appeal should be allowed.
The RCMP Commissioner should be ordered to disclose
the list of the RCMP members’ historical postings, their status and date; the
list of ranks and the dates they achieved those ranks; their years of service;
and their anniversary dates of service. These are all elements that relate to
the general characteristics associated with the position or functions of an
RCMP member. They do not reveal anything about their competence or divulge any
personal opinion given outside the course of employment — rather, they provide
information relevant to understanding the functions they perform.
In this case, application of the functional and
pragmatic approach indicates that deference to the RCMP Commissioner would be
unjustified and his decision ought to be reviewed on a standard of
correctness. The information sought regarding the four RCMP members is
“information about an identifiable individual”, and therefore “personal
information” within the meaning of s. 3 of the Privacy Act . There
is also no doubt that the requested information relates to employment history
and falls within the scope of s. 3 “personal information” (b).
The information requested is exactly the type of information that a
reasonable person in a working environment would likely characterize as
employment history. However, the information falls under the exemption
provided in s. 3 “personal information” (j) of the Privacy Act .
Section 3(j) is retroactive in nature and there is no reason to
impose a time restriction on its scope. The list of examples provided in
s. 3(j) is not exhaustive and certainly does not limit the application
of the introductory paragraph to the current position held by an employee or to
the last position occupied by an employee now retired. Nevertheless,
s. 3(j) does have a specified scope, as the information must be
related to the position or functions held by a federal employee. This will
exclude information relating, for example, to the competence and
characteristics of the employee. Section 3 (j) should apply only
when the information requested is sufficiently related to the general
characteristics associated with the positions or functions held by an officer
or employee of a federal institution. It is both artificial and unhelpful to
attempt to distinguish between “information about the person” and “information
about the position or functions”. Section 3 (j) applies when the
information — which is always linked to the individual — is directly related to
the general characteristics associated with the position or functions held by
an employee, without the objective or subjective nature of that information
being determinative.
Cases Cited
Applied: Dagg v.
Canada (Minister of Finance), [1997] 2 S.C.R. 403;
referred to: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pezim
v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Canada
(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R.
748; Macdonell v. Quebec (Commission d’accès à l’information), [2002] 3
S.C.R. 661, 2002 SCC 71; 3430901 Canada Inc. v. Canada (Minister of
Industry), [2002] 1 F.C. 421, 2001 FCA 254; Lavigne v. Canada (Office of
the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53; Canada
(Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C.
551.
Statutes and Regulations Cited
Access
to Information Act, R.S.C. 1985, c. A‑1,
ss. 2(1) , 4(1) , 19 , 41 , 42 , 48 , 49 .
Privacy Act, R.S.C. 1985, c. P‑21, ss. 2 , 3 “personal information” (b),
“personal information” (j), 8(2)(m)(i).
Authors Cited
Black’s
Law Dictionary, 6th ed. St. Paul, Minn.: West
Publishing Co., 1990, “relate”.
Reid, Hubert. Dictionnaire de
droit québécois et canadien avec table des abréviations et lexique
anglais‑français, 2e éd. Montréal: Wilson & Lafleur,
2001, “relatif”.
APPEAL from a judgment of the Federal Court of Appeal,
[2001] 3 F.C. 70, 199 D.L.R. (4th) 309, 267 N.R. 163, 29 Admin. L.R. (3d) 193,
11 C.P.R. (4th) 336, [2001] F.C.J. No. 344 (QL), 2001 FCA 56, dismissing
the appellant’s appeal from a decision of the Trial Division (1999), 179 F.T.R.
75, 29 Admin. L.R. (3d) 177, [1999] F.C.J. No. 1860 (QL). Appeal allowed.
Clayton Ruby and Daniel
Brunet, for the appellant.
Brian J. Saunders and Christopher
Rupar, for the respondent.
Dougald E. Brown and Steven
Welchner, for the intervener.
The judgment of the Court was delivered by
1
Gonthier J. — This case
concerns the application and interaction of the Access to Information Act,
R.S.C. 1985, c. A-1 (the “Access Act ”), and the Privacy Act,
R.S.C. 1985, c. P-21 , as they relate to a request for information pertaining to
four members of the Royal Canadian Mounted Police (“RCMP”). More precisely,
the question is whether the requested information relates to the position or
functions of the individuals, and is therefore excluded from the ambit of s.
19(1) of the Access Act.
I. Factual
Background
2
On June 4, 1998, Gordon Ronalds requested from the RCMP the following
information regarding four RCMP members:
List of communities of postings, including dates, occupied by the
following Royal Canadian Mounted Police officers:
(1) Cst/Acting Corporal Robert Shedden, Wells Detachment, BC;
(2) S/Sgt Kenneth Craig, NCO, Quesnel Detachment, BC;
(3) Corporal Bob Zimmerman, Quesnel Detachment, BC; and
(4) S/Sgt Larry Ronald Wendell, Advisory NCO North Division,
Williams Lake.
Copies of all public complaints filed against each of the above
individuals;
and
Name and address for service of member or former member who served as
NCO IC/Royal Canadian Mounted Police detachment Baddeck, Nova Scotia in August
1986.
3
Mr. Ronalds sought this information in connection with litigation
against the officers. The RCMP refused to disclose the information on the
grounds that the records contained “personal information”, as defined by s. 3
of the Privacy Act , and therefore were exempt from disclosure pursuant
to s. 19(1) of the Access Act.
4
Upon receipt of written notice of this decision, Mr. Ronalds made a
complaint to the Information Commissioner. The RCMP was duly notified of the
complaint and the intention of the Office of the Information Commissioner to
undertake an investigation. During the course of that investigation, the RCMP
Commissioner informed the Information Commissioner that he would release the
current postings and positions of the four serving RCMP members and the last
posting and position of the one retired RCMP member. However, the RCMP
maintained its position that the remaining information was “personal
information” and thus exempt from the disclosure requirements.
5
On January 21, 1999, the Information Commissioner found that the
information relating to the previous RCMP postings of the four officers, as
well as certain other job-related information contained in the relevant
records, did not constitute “personal information”. He recommended that the
RCMP disclose:
a) the list of historical postings, their
status and date;
b) the list of ranks and the dates they
achieved those ranks;
c) their years of service; and
d) their anniversary date of service.
On February
12, 1999, the RCMP indicated that it would not follow the Information
Commissioner’s recommendation.
6
On April 9, 1999, the Information Commissioner applied to the Federal
Court, Trial Division, with the consent of Mr. Ronalds, for a review of the
RCMP Commissioner’s decision to refuse disclosure. The applicant sought an
order directing the RCMP to disclose to Mr. Ronalds the records or portions
thereof which do not qualify for exemption from disclosure under s. 19(1) of
the Access Act. The Trial Division held that only information related
to a public servant’s current position or a former public servant’s last
position needed to be released. The Federal Court of Appeal dismissed the
appeal.
II. Applicable
Legislation
7
Access to Information Act, R.S.C. 1985, c. A-1
2. (1) The purpose of this Act is to extend
the present laws of Canada to provide a right of access to information in
records under the control of a government institution in accordance with the
principles that government information should be available to the public, that
necessary exceptions to the right of access should be limited and specific and
that decisions on the disclosure of government information should be reviewed
independently of government.
4. (1) Subject to this Act , but
notwithstanding any other Act of Parliament, every person who is
(a) a Canadian citizen, or
(b) a permanent resident within the meaning of the Immigration
Act,
has a right to and shall, on request, be given access to any record
under the control of a government institution.
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 .
(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 .
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;
(b) appear before the Court on behalf of any person who has
applied for a review under section 41 ; or
(c) with leave of the Court, appear as a party to any review
applied for under section 41 or 44 .
(2) Where the Information Commissioner makes an
application under paragraph (1)(a) for a review of a refusal to disclose
a record requested under this Act or a part thereof, the person who requested
access to the record may appear as a party to the review.
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.
49. Where the head of a government
institution refuses to disclose a record requested under this Act or a part
thereof on the basis of a provision of this Act not referred to in section 50 ,
the Court shall, if it determines that the head of the institution is not
authorized to refuse to disclose the record or part thereof, order the head of
the institution to disclose the record or part thereof, subject to such
conditions as the Court deems appropriate, to the person who requested access
to the record, or shall make such other order as the Court deems appropriate.
Privacy Act,
R.S.C. 1985, c. P-21
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.
“Personal
information” is defined by s. 3 of the Privacy Act . It reads:
3. . . .
“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,
. . .
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,
8. (1) .
. .
(2) Subject to any other Act of
Parliament, personal information under the control of a government institution
may be disclosed
. . .
(m) for any purpose where, in the opinion of
the head of the institution,
(i) the public interest in disclosure clearly
outweighs any invasion of privacy that could result from the disclosure, . . .
III. Judicial History
A. Federal Court of Canada, Trial Division (1999), 179
F.T.R. 75
8
Cullen J. began by emphasizing the fact that determining the scope of s.
3 “personal information” (j) (hereinafter s. 3 (j)) requires the
court to take into account the purposes of both the Access Act and
the Privacy Act . After careful consideration and balancing of the
respective interests protected by each enactment, Cullen J. held that the
general nature of s. 3 (j) is not retrospective. The fact that public
servants abandon certain privacy rights upon taking up their positions cannot
result in a wholesale surrender of all rights to privacy in respect of
employment history; were s. 3 (j) given a retrospective bearing, “there
would be little left to contemplate in private and little meaning to the
protection of employment history” (para. 24) given by s. 3 “personal
information” (b) (hereinafter s. 3 (b)). Cullen J. therefore
concluded that paras. (j)(i) to (iii) of s. 3 apply only to a public
servant’s current position or to the position last held by a former public
servant.
9
Cullen J. also found that the respondent did not consider whether the
information might properly have been disclosed under s. 8(2) (m)(i) of
the Privacy Act , and that the respondent thereby failed in its exercise
of the discretion it is required to exercise under s. 19(2) of the Access
Act. Cullen J. therefore ordered the respondent to consider whether the
information ought to be released in accordance with s. 8(2) (m)(i) of the
Privacy Act .
B. Federal
Court of Appeal, [2001] 3 F.C. 70, 2001 FCA 56
10
Létourneau J.A., for the court, held that s. 3 (j) should be
construed in a way that does not allow for the disclosure of an individual’s
“employment history”. Owing to the fact that individual privacy is a
fundamental right which has attracted constitutional protection, it would be
improper to give s. 3 (j) such breadth as to empty the definition of
“personal information” of its contents with respect to “employment history”.
However, Létourneau J.A. ultimately held that s. 3 (j) does
authorize the release of information about an individual’s position, whether
current or past; neither the purpose nor the wording of s. 3 (j) or s. 3 (j)(i)
requires an interpretation that would restrict their application to current
positions. In his view, “[t]he very fact of employment, past or present, can
be revealed and, indeed, is essential to a citizen in determining whether his
request for disclosure is addressed to the appropriate authority and is worth
pursuing” (para. 21).
11
However, Létourneau J.A. did emphasize at para. 22 that “a request about
a named individual’s position, especially in respect of the past positions
held, has to be specific as to time, scope and place. It cannot be a fishing
expedition about all or numerous positions occupied by an individual . . . over
the span of his [or her] employment”. Therefore, a citizen could properly ask
whether John Doe worked for the Department of Justice in 1994, what position he
held, what the duties and responsibilities of that position were, and where he
exercised his function. He could not, however, request information about John
Doe’s positions in the government between 1980 and 1994.
12
Applying these principles to the request in the present case, Létourneau
J.A. concluded that the demand, when assessed in its totality and in relation
to its primary focus, was for specific individuals’ employment histories, and
not information about a current or a specific past position. The Federal Court
of Appeal thus dismissed the appeal with costs to the respondent.
IV. Issues
13
There are two issues to be decided in this appeal:
1. Does the information that the
appellant has requested constitute “personal information” as defined in s. 3 of
the Privacy Act ?
2. If so, does the information fall
within the exception set out in s. 3 (j) of the Privacy Act ?
V. Analysis
A. Standard
of Review
14
Before analysing the decision of the RCMP Commissioner, it is necessary
to determine the appropriate standard of review. The central inquiry in
determining the standard of review concerns the intention of the legislature,
the discerning of which requires the Court to apply the functional and
pragmatic approach (U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R.
1048; Pezim v. British Columbia (Superintendent of Brokers),
[1994] 2 S.C.R. 557; and Pushpanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982). This approach — the appropriateness of
which has been repeatedly affirmed by this Court — requires the court to take
four factors into account: the presence or absence of a privative clause or
statutory right of appeal; the expertise of the tribunal relative to that of
the reviewing judge; the purpose of the legislation; and the nature of the
question before the tribunal.
15
Applying this approach to the case at hand, it must be noted at the
outset that the Access Act does not contain a privative clause. Rather,
s. 41 provides a process by which a person who has been refused access to a
record may apply to the Federal Court for a review of that decision. Section
42 provides a mechanism by which the Information Commissioner may apply to the
court, with the consent of the applicant, for a review of that decision, and s.
49 provides that the Federal Court may order the head of the institution to
disclose the record requested, “if it determines that the head of the
institution is not authorized to refuse to disclose the record or part
thereof” (emphasis added). It also is noteworthy that s. 2(1) indicates that
it is a purpose of the Access Act to ensure that “decisions on the
disclosure of government information should be reviewed independently of
government”. The absence of a privative clause is not determinative by itself
(Canada (Director of Investigation and Research) v. Southam Inc., [1997]
1 S.C.R. 748). However, that factor, in conjunction with the explicit
provision for the court to review refusals, and the importance ascribed by the Access
Act to independent review, are indicative of a Parliamentary intention that
the court have broad powers of review.
16
Also indicative of the appropriate standard of review is the fact that
the finding under review is the Commissioner of the RCMP’s interpretation of
the Access Act and the Privacy Act . Relative to a reviewing
judge, the Commissioner has no expertise in statutory interpretation. This
fact further invites the application of broad powers of review.
17
The purpose of the Access Act is set out in s. 2(1) in the
following terms:
2. (1) The purpose of this Act is to extend
the present laws of Canada to provide a right of access to information in
records under the control of a government institution in accordance with the
principles that government information should be available to the public, that
necessary exceptions to the right of access should be limited and specific and
that decisions on the disclosure of government information should be reviewed
independently of government.
In my opinion,
this purpose is advanced by adopting a less deferential standard of review.
Under the federal scheme, those responsible for answering access to information
requests are agents of a government institution. This is unlike the situation
under many provincial access to information statutes, where information
requests are reviewed by an administrative tribunal independent from the
executive (Macdonell v. Quebec (Commission d’accès à l’information), [2002]
3 S.C.R. 661, 2002 SCC 71). A less deferential standard of review thus
advances the stated objective that decisions on the disclosure of government
information be reviewed independently of government. Further, those charged
with responding to requests under the federal Access Act might be
inclined to interpret the exceptions to information disclosure in a liberal
manner so as to favour their institution (3430901 Canada Inc. v. Canada
(Minister of Industry), [2002] 1 F.C. 421, 2001 FCA 254, at
para. 30). As such, the exercise of broad powers of review would also advance
the stated purpose of providing a right of access to information in records
under the control of a government institution in accordance with the principle
that necessary exceptions to the right of access should be limited and
specific.
18
Finally, the nature of the issue before the Court also militates in
favour of providing broad powers of review. The dispute requires the RCMP
Commissioner to interpret s. 3 (j), and in particular, the statement that
personal information does not include “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 . . .”. Thus, the Commissioner is
called upon to interpret the Access Act and the Privacy Act ,
taking into account the general principles underlying them. This is a question
of law that does not turn on any finding of fact. It is also a question of a
highly generalized nature, owing to the fact that the Access Act and the
Privacy Act determine the disclosure obligations for each of the many
institutions governed by the Access Act. These factors further indicate
that courts ought not to be restrained in reviewing the Commissioner’s
decisions.
19
Considering the factors discussed above, and particularly the nature of
the issue before the RCMP Commissioner and the absence of a privative clause, I
am of the view that Parliament did not intend to leave the interpretation of s.
3 (j) to the RCMP Commissioner. In this context, deference to the RCMP
Commissioner would be unjustified, and courts ought to review his decision on a
standard of correctness. Such a conclusion is also consistent with this
Court’s decision in Dagg v. Canada (Minister of Finance), [1997] 2
S.C.R. 403, at para. 107, where La Forest J. dissenting, but not on this point,
described s. 49 of the Access Act as authorizing the court to substitute
its opinion where the head of the government institution is not authorized to
refuse disclosure:
It is clear that in making this determination, the reviewing court may
substitute its opinion for that of the head of the government institution. The
situation changes, however, once it is determined that the head of the
institution is authorized to refuse disclosure. Section 19(1) of the Access
to Information Act states that, subject to s. 19(2) , the head of the
institution shall refuse to disclose personal information. Section 49
of the Access to Information Act , then, only permits the court to
overturn the decision of the head of the institution where that person is “not
authorized” to withhold a record. Where, as in the present case, the requested
record constitutes personal information, the head of the institution is
authorized to refuse and the de novo review power set out in s. 49 is
exhausted. [Emphasis in original.]
B. General
Interpretive Principles
20
This is not the first time that this Court has been called upon to
resolve a conflict between the Access Act and the Privacy Act .
In Dagg, supra, this Court was similarly required to determine
whether certain information requested was “personal information” as defined in
the Privacy Act . More particularly, the Court had to determine whether
copies of logs with the names, identification numbers and signatures of
employees entering and leaving the workplace on weekends is information that
“relates to the position or functions of the individual”, as defined in the
exception set out in s. 3 (j) of the Privacy Act .
21
The majority of the Court agreed with La Forest J., when he provided a
detailed description of the interpretive principles applicable in a case of
conflict between those two statutes. I will not repeat that analysis.
However, I wish to recall the main principles that must guide courts in their
application of the two enactments. First, it is clear that the Privacy Act and
the Access Act have to be read jointly and that neither takes precedence
over the other. The statement in s. 2 of the Access Act that exceptions
to access should be “limited and specific” does not create a presumption in
favour of access. Section 2 provides simply that the exceptions to access are
limited and that it is incumbent on the federal institution to establish that
the information falls within one of the exceptions (see also s. 48 of the Access
Act).
22
Further, I note that s. 4(1) of the Access Act states that the
right to government information is “[s]ubject to this Act ”. Section 19(1) of
the Access Act expressly prohibits the disclosure of a record that
contains personal information “as defined in section 3 of the Privacy Act ”.
Thus, s. 19(1) excludes “personal information”, as defined in the Privacy
Act , from the general access rule. The Access Act and the Privacy
Act are a seamless code with complementary provisions that can and should
be interpreted harmoniously.
C. Does
the Requested Document Contain “Personal Information”?
23
The Access Act provides a general right to access, subject to
certain exceptions, such as that in s. 19(1), which prohibits the disclosure of
a record that contains personal information “as defined in section 3 of the Privacy
Act ”. As its name indicates, the Privacy Act protects the privacy
of individuals with respect to personal information about themselves held by
government institutions. By defining “personal information” as “information
about an identifiable individual that is recorded in any form including . . .”,
Parliament defined this concept broadly. In Dagg, supra, La
Forest J. commented on the definition of “personal information” at paras.
68-69:
On a plain reading, this definition is undeniably expansive. Notably,
it expressly states that the list of specific examples that follows the general
definition is not intended to limit the scope of the former. As this Court has
recently held, this phraseology indicates that the general opening words are
intended to be the primary source of interpretation. The subsequent
enumeration merely identifies examples of the type of subject matter
encompassed by the general definition; see Schwartz v. Canada, [1996] 1
S.C.R. 254, at pp. 289-91. Consequently, if a government record is captured by
those opening words, it does not matter that it does not fall within any of the
specific examples.
As noted by Jerome A.C.J. in Canada (Information
Commissioner) v. Canada (Solicitor General), supra, at p. 557, the
language of this section is “deliberately broad” and “entirely consistent with
the great pains that have been taken to safeguard individual identity”. Its
intent seems to be to capture any information about a specific person,
subject only to specific exceptions. [Emphasis in original.]
24
It seems fairly clear that the information sought regarding the four
RCMP members is “information about an identifiable individual”, and therefore
“personal information” within the meaning of s. 3 . Indeed, this much was
apparently agreed to by the parties. Generally, once it is determined that the
information requested falls within the opening words of the definition of
“personal information” in s. 3 of the Privacy Act , it is not necessary
to consider whether it is also encompassed by one of the specific,
non-exhaustive examples set out in paras. (a) to (i). However,
considering that the dispute in this case concerns the relationship between
“employment history” (which is protected as an example of “personal
information” in s. 3 (b)) and the exception to “personal information” set
out in s. 3 (j), it is essential to determine the meaning of “employment
history”. I will then go on to consider whether the information in dispute is
related to employment history.
25
In my view, there is no reason to limit the scope of the
expression “employment history” to particular aspects of employment or to
modify its usual meaning. Parliament referred broadly to “employment history”
and did not qualify that expression. There is no evidence of an intent to
limit its meaning. Further, the wording of s. 3 (b) suggests that it has
a broad scope. Indeed, the provision does not state that personal information
includes “employment history” itself. Rather, it stipulates that it includes
“information relating to . . . employment history” (emphasis added). Black’s
Law Dictionary (6th ed. 1990) defines the word “relate” at p. 1288 as “to
bring into association with or connection with”. The wording of the French
version of s. 3 (b) is equally general: “Les
renseignements, quels que soient leur forme et leur support, concernant un
individu identifiable, . . . relatifs à . . . ses antécédents
professionnels . . .” (emphasis added). The Dictionnaire
de droit québécois et canadien (2nd ed. 2001) defines
“relatif” at p. 477 as “[q]ui concerne, qui se rapporte à”.
Considering the wording of the provision, it would seem that the personal
information referred to is that relating to employment history. In the absence
of clear legislative intent to the contrary, the ordinary meaning of the
legislative provision must prevail. The ordinary meaning of “employment
history” includes not only the list of positions previously held, places of
employment, tasks performed and so on, but also, for example, any personal
evaluations an employee might have received during his career. Such a broad
definition is also consistent with the meaning generally given to that
expression in the workplace.
26
This definition of “employment history” is consistent with the
objectives of the Privacy Act . Indeed, that statute has as its aim the
protection of information relating to individual identity (as is necessary in a
democratic country such as ours), subject to specific exceptions. Recently, in
Lavigne v. Canada (Office of the Commissioner of Official Languages),
[2002] 2 S.C.R. 773, 2002 SCC 53, I wrote extensively on the importance of the
right to privacy, characterizing the Privacy Act as
quasi-constitutional. Parliament set out s. 3 of the Privacy Act in
very broad language, and it is not for this Court to limit the scope of that
section. This point was recognized by this Court in Dagg, supra,
at paras. 68 and 69. In the case at bar, there is no doubt that the requested
information relates to “employment history” within the meaning of s. 3 (b)
of the Privacy Act . Indeed, the information requested — a chronological
list of the members’ postings, their years of service, and their anniversary
dates of service — is exactly the type of information that a reasonable person
in a working environment would likely characterize as “employment history”. In
fact, the parties agree to such a characterization. As such, the information
falls within the scope of s. 3 (b).
D. Is the Requested Information Excluded
from the Definition of “Personal Information” by Virtue of Section 3 (j) of the
Privacy Act ?
27
The appellant submits that even if the information he requested is prima
facie “personal information”, it falls under the exemption provided in s.
3 (j) of the Privacy Act . That provision states:
3. . . .
“personal information” . . .
. . . 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.
Specifically,
the appellant contends that the information requested pertains to the RCMP
members’ positions, and therefore falls within the general opening words of (j)
which, according to him, is not limited to current employment. In his view,
this subsection is retroactive in its application to information that relates
to the past positions or functions of a federal officer or employee.
1. The Retroactive Nature of Section 3 (j)
28
Cullen J. declined to extend the scope of s. 3 (j) to past
postings of the RCMP members. According to him, if this section were to be
given a retrospective bearing, “there would be little left to contemplate in
private and little meaning to the protection of employment history given by s.
3 (b)” (para. 24).
29
With respect, I see no reason to impose a time restriction on the scope
of s. 3 (j). First, the wording itself makes reference to
“information about an individual who is or was an officer or employee of
a government institution . . .” (emphasis added). It therefore invokes a
certain retroactivity. As well, s. 3 (j)(i) mentions expressly that
personal information does not include “the fact that the individual is or
was an officer or employee of the government institution” (emphasis
added). Furthermore, I note that the examples given in this section are not
exhaustive and do not reduce the general scope of the introductory phrase.
Parliament has clearly expressed its intention that the introductory phrase
keep its wide and general meaning by providing only non-exhaustive examples.
It uses the expression “including” or “notamment” in the French
version. I had the opportunity in Lavigne, supra, to express the
following comments regarding the meaning of that expression in the context of
the application of the Privacy Act , at para. 53:
Parliament made it plain that s. 22(1)(b)
retains its broad and general meaning by providing a non‑exhaustive list
of examples. It uses the word “notamment”, in the French version, to
make it plain that the examples given are listed only for clarification, and do
not operate to restrict the general scope of the introductory phrase. The
English version of the provision is also plain. Parliament introduces the list
of examples with the expression “without restricting the generality of the
foregoing”. This Court has had occasion in the past to examine the
interpretation of the expression “without restricting the generality of the
foregoing” in similar circumstances: in Dagg, supra, at para. 68,
La Forest J. analyzed s. 3 of the Privacy Act , the wording of which
resembles the wording of s. 22(1)(b) of that Act :
In its opening paragraph, the provision states that “personal
information” means “information about an identifiable individual that is
recorded in any form including, without restricting the generality of the
foregoing”. 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.
Thus, the list
of examples provided in s. 3 (j) is not exhaustive, and certainly does
not limit the application of the introductory paragraph to the current position
held by an employee or to the last position occupied by an employee now
retired. The purpose of s. 3 (j) is to ensure that the state and its
agents are held accountable to the general public. Given the lack of any
indication that Parliament intended to incorporate such a limitation into the
legislation, the fact that a public servant has been promoted or has retired
should not affect the extent to which she or he is held accountable for past
conduct.
30
Finally, I note that some might be tempted to view use of the word
“position” in the singular in s. 3 (j) as an indication of Parliamentary
intent to limit the scope of s. 3 (j) to the position currently held
by an employee. Like Cullen J., I am of the opinion that this word should be
understood as including the plural. It would be absurd for instance that a
person requesting information could only obtain information about a single
position where a federal employee holds two positions simultaneously. There is
nothing to justify an interpretation that would lead to such a result. Thus,
the word “position” as it appears in s. 3 (j) should be read as
applicable to multiple positions. Information that would have been available
at the time that the individual held a certain position or exercised certain
functions remains available subsequent to that individual’s promotion or
retirement.
31
The Federal Court of Appeal agreed that s. 3 (j) applies equally
to past and current positions. However, the court added that a request about a
named individual’s position, especially in respect of past positions held, has
to be specific as to time, scope and place. Létourneau J.A. explained
that it cannot be a “fishing expedition” about all or numerous positions
occupied by an individual over the span of his or her employment, because this
would empty the meaning of s. 3 (b), which prevents access to “employment
history”.
32
With respect, I view this interpretation as unnecessarily restrictive
and without sufficient legal foundation. The Court of Appeal’s approach fails
to recognize that it is the nature of the information itself that is relevant –
not the purpose or nature of the request. The Privacy Act defines
“personal information” without regard to the intention of the person requesting
the information. Similarly, s. 4(1) of the Access Act provides that
every Canadian citizen and permanent resident “has a right to and shall, on
request, be given access to any record under the control of a government
institution”. This right is not qualified; the Access Act does
not confer on the heads of government institutions the power to take into
account the identity of the applicant or the purposes underlying a request. In
short, it is not open to the RCMP Commissioner to refuse disclosure on the
grounds that disclosing the information, in this instance, will not promote
accountability; the Access Act makes this information equally available
to each member of the public because it is thought that the availability of
such information, as a general matter, is necessary to ensure the
accountability of the state and to promote the capacity of the citizenry to
participate in decision-making processes. The interpretation suggested by the
Court of Appeal leads to the curious result that whether requested information
related to past positions held by a federal employee is considered to be
“personal information” will depend on the precision with which the request is
made. Take for instance the situation where an individual wants to know if Mr.
X was an employee between 1990 and 1996 and formulates a request in broad
terms. If we apply the test suggested by the Court of Appeal, the request will
likely be refused. However, if another individual wants the same information
about Mr. X, and divides his request into three separate requests spread out
over several months, he will likely succeed in obtaining the information. The
Court of Appeal recognized at para. 22 the difficulties of applying such a
test:
Therefore, for example, a citizen could properly ask whether John Doe
worked for the Department of Justice in 1994, what position he held at that
time, the duties and responsibilities of that position and where he exercised
his functions. But he could not, without being properly opposed paragraph 3 (b),
request information about John Doe’s positions in the government between 1980
and 1994. Of course, between these two clear extremes there is a wide
variety of requests about a named individual’s position which may be more or
less specific and which would have to be addressed on their own merits in order
to determine whether they fall into the principle of non disclosure or the
exception. [Emphasis added.]
33
In my opinion, it is impossible to justify an approach that results in
two people requesting the same information from the same federal institution
obtaining different responses. Such an interpretation leads to an inequitable
result and is incompatible with the objectives of the Privacy Act . The Privacy
Act defines “personal information” in a permanent manner. A particular
class of information either is or is not personal information. The purpose
or motive of the request is wholly irrelevant. The strategy used by the person
filing a request cannot modify the nature of the requested information.
34
By way of explanation of his approach, Létourneau J.A. for the Court of
Appeal stated that he did not want to adopt an interpretation “which, in the
end, will or is likely to empty the definition of ‘personal information’ of its
contents with respect to ‘employment history’” (para. 20). While this is a
valid concern, an interpretation of s. 3 (j) that includes past
positions without regard to the formulation of the request does not empty the
definition of “employment history”. Section 3 (j) applies only to an
“individual who is or was an officer or employee of a government institution”,
and only for the purposes of ss. 7, 8 and 26 and s. 19 of the Access Act.
In contrast, s. 3 (b) is of general application. Parliament has
therefore chosen to give less protection to the privacy of federal employees
when the information requested relates to their position or functions. It
follows that if a federal institution has in its possession the employment
history of an individual who has never worked for the federal government, that
information remains confidential, whereas federal employees will see the
information relating to their position and functions released. Section 3 (b)
therefore has a wider scope, as it applies to every “identifiable individual”,
and not just individuals who are or were officers or employees of a government
institution.
35
Further, only information relating to the position or functions of the
concerned federal employee or falling within one of the examples given is
excluded from the definition of “personal information”. 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. Clearly, there are
aspects of employment history that are not related to functions or past
positions. Therefore, to accept that s. 3 (j) authorizes the
communication of information that relates to both current and past positions
and functions of federal officers and employees, without regard to the
formulation of the request, does not empty the definition of “employment
history” of meaning.
2. The Applicable Test for Section 3 (j) of the Privacy
Act
36
The appellant submits that this Court has developed a test for the
application of s. 3 (j) that distinguishes between subjective and
objective information. He explains that test in the following terms:
Any subjective or evaluative information about a public
official’s employment history will fall within paragraph 3 (b). However,
where the information requested is objective or factual in nature, the
Court in Dagg found that the information falls within the exception set
out in paragraph 3 (j) and, hence, does not qualify for exemption under
subsection 19(1) of the Access to Information Act . [Emphasis added.]
He bases his
interpretation on the following statement by Cory J. in Dagg, supra,
at para. 12:
In my view, there is neither a subjective aspect
nor an element of evaluation contained in a record of an individual’s presence
at the workplace beyond normal working hours. Rather, that record discloses
information generic to the position itself.
The appellant
thus submits that the RCMP Commissioner ought to disclose the information
sought to the Information Commissioner, because it is objective and factual information
that relates to the RCMP members’ positions or functions. I cannot agree that
this is the proper basis for requiring the RCMP to disclose the information in
question.
37
In my opinion, the appellant has mischaracterized this Court’s reasons
in Dagg. Dagg does not stand for the proposition that objective
and factual information that relates to the position or functions of the
individual is to be provided to the public, while subjective or evaluative
information that relates to the position or functions of the individuals is
protected by the Privacy Act . Indeed, such an interpretation is
contrary to this Court’s reasons in Dagg. As the passage quoted above
indicates, the reason that the names and identification numbers on the sign-in
logs were disclosed is not because the information contained therein was
objective and factual, but because the Court regarded it as “information ‘that
relates to’ the position or function of the individual, and thus falls under
the opening words of s. 3 (j)” (Dagg, supra, at para. 8).
38
As I explained above, the examples mentioned in s. 3(j) are not
exhaustive. However, s. 3(j) does have a specified scope, as the
information must be related to the position or functions held by a federal
employee. For instance, in Canada (Information Commissioner) v. Canada
(Solicitor General), [1988] 3 F.C. 551 (T.D.), Jerome A.C.J. held that
certain opinions expressed about the training, personality, experience or
competence of individual employees did not fall under s. 3(j).
Such information is not a direct function of the individual’s position —
rather, it concerns the competence and characteristics of the employee.
Section 3(j) should apply only when the information requested is
sufficiently related to the general characteristics associated with the
position or functions held by an officer or employee of a federal institution.
As La Forest J. explained in Dagg, supra, at para. 95:
Generally speaking, information relating to the
position, function or responsibilities of an individual will consist of the
kind of information disclosed in a job description. It will comprise the terms
and conditions associated with a particular position, including such
information as qualifications, duties, responsibilities, hours of work and
salary range.
Obviously, a
request that relates to the past or present position of a federal employee is
necessarily about an individual. Given that “personal information” is defined
in s. 3 of the Privacy Act as information “about an identifiable
individual”, and given that s. 3 (j) is, after all, an exception to the
manner in which “personal information” generally is treated, it follows that s.
3 (j) must contemplate information about an individual. In my
opinion, it is both artificial and unhelpful to attempt to distinguish between
“information about the person” and “information about the position or
functions”. Section 3 (j) applies when the information — which is always
linked to an individual — is directly related to the general characteristics
associated with the position or functions held by an employee, without the
objective or subjective nature of that information being determinative.
39
In my opinion, (1) the list of the RCMP members’ historical postings,
their status and date; (2) the list of ranks, and the dates they achieved those
ranks; (3) their years of service; and (4) their anniversary dates of service,
are all elements that relate to the general characteristics associated with the
position or functions of an RCMP member. They do not reveal anything about
their competence or divulge any personal opinion given outside the course of
employment – rather, they provide information relevant to understanding the
functions they perform. Put another way, the aspects of employment described
above shed light on the general attributes of the position and functions of an
RCMP member.
VI. Conclusion
40
For these reasons, I would allow the appeal, set aside the judgments
below, and order the RCMP Commissioner to disclose to the appellant the
following information with respect to the four RCMP officers, Robert Shedden,
Kenneth Craig, Bob Zimmerman and Larry Ronald Wendell:
(1) the list of historical postings, their status and date;
(2) the list of ranks, and the dates they achieved those ranks;
(3) their years of service; and
(4) their anniversary date of service.
41
Costs are awarded to the appellant throughout.
Appeal allowed with costs.
Solicitor for the appellant: Office of the Information
Commissioner of Canada, Ottawa.
Solicitor for the respondent: Deputy Attorney General of
Canada, Ottawa.
Solicitors for the intervener: Nelligan O'Brien Payne,
Ottawa.
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