Docket: T-499-22
Citation: 2024 FC 88
[ENGLISH TRANSLATION]
Ottawa, Ontario, January 23, 2024
PRESENT: The Honourable Madam Justice Tsimberis
BETWEEN:
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SYLVIE MATAS
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Applicant
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and
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GLOBAL AFFAIRS CANADA
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Respondent
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PUBLIC REASONS AND JUDGMENT
(Confidential Judgment and Reasons issued January 23, 2024)
I. Overview
[1] This is an application for judicial review under subsection 41(1) and section 44.1 of the Access to Information Act, RSC 1985, c A-1 [ATIA] filed by Sylvie Matas [applicant], a retired public servant, of a decision by Global Affairs Canada [respondent] dated October 18, 2021, to refuse to disclose records to the applicant on the basis of subsection 19(1) of the ATIA and following a decision made by the Office of the Information Commissioner [OIC] dated March 22, 2022, declaring the applicant’s complaint against the respondent not well founded.
[2] The applicant complained to the Office of the Information Commissioner regarding her second access request (A-2021-00779), reproduced below, alleging that the respondent had erroneously refused to disclose records pursuant to subsection 19(1) of the ATIA:
[TRANSLATION]
I would like a copy of the inspection report that was done by GAC at the Canadian Embassy in Dakar, Senegal, in 2018. Following this inspection, three local employees were dismissed for fraud. GAC regularly conducts inspections in foreign missions to verify the proper management of Canadian embassies.
[3] The OIC considered the applicant’s complaint to be not well founded because the respondent demonstrated that the information meets the criteria for the personal information of individuals and the respondent provided the following detailed justification as to why the circumstances described in subsection 19(2) of the ATIA do not exist in this case:
The respondent has given specific reasons why it would not have been appropriate to seek the consent of the individuals concerned;
The respondent has demonstrated that the personal information covered by the access to information request is publicly available; and
The respondent has demonstrated that the disclosure of personal information is not in accordance with section 8 of the Privacy Act [PA].
[4] In her application, the applicant alleges that the respondent refuses, without justification, to disclose the investigation reports under subsection 19(1) of the ATIA that are of interest to the applicant. The applicant believes that her records relate to the circumstances, reasons and conclusions of an investigation report carried out in 2018 on the embassy in Dakar |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||. The applicant is seeking the issuance of an order to compel the respondent to disclose the information in the documents concerned to clear up the facts that, according to her, prejudiced her right to adequate housing during the first year of her assignment in Dakar; caused duly documented damage to her health during the first year of her assignment (2015–2016) to the embassy in Dakar; forced her to take sick leave and disability leave upon her return from assignment in August 2028; and resulted in her premature retirement.
[5] The applicant also alleges that the respondent did not properly exercise its discretionary right to allow disclosure of all or part of the investigation reports under subsection 19(2) of the ATIA, including by not severing from the investigation reports any parts that do not contain any personal information under section 25 of the ATIA.
[6] The respondent defends its decision (and that of the OIC) to refuse to disclose the records to the applicant because it determined as follows:
The documents relating to the second access request No. A-2021-00779 (the three investigation reports) contain the personal information of identifiable individuals other than the applicant. The respondent determined that it cannot disclose the requested personal information, in whole or in part, without disclosing the personal information of individuals;
The personal information was not subject to one of the exceptions set out in subsection 19(2) of the ATIA, which permits the disclosure of 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 PA; and
The OIC cannot disclose the requested records, in whole or in part, without disclosing the personal information of individuals because the three reports at issue concern |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||and given the nature of the investigations, the details in the reports and their roles, disclosure of the reports, in whole or in part, risks identifying the individuals concerned and disclosing their personal information.
[7] The Court reproduces in the attached Appendix the legislative provisions relevant to its judgment.
[8] For the following reasons, the Court dismisses this application for review.
II. Issues
[9] This matter raises the following issues:
What is the standard of review applicable to issues raised in an application for review under the ATIA?
Is the information requested by the applicant subject to the personal information provisions in subsection 19(1) of the ATIA?
If so, has the respondent reasonably exercised its discretion under subsection 19(2) of the ATIA?
Did the respondent err in refusing to sever the records required under section 25 of the ATIA?
III. Analysis
A. The applicable standard of review
(a) Subsection 41(1) and section 44.1 of the ATIA
[10] The applicant’s application is made under subsection 41(1) of the ATIA, which confers a right of review by the Federal Court.
[11] Pursuant to section 44.1 of the ATIA, the Federal Court hears and determines applications under subsection 41(1) of the ATIA as if they were new matters (de novo review), where the Court “steps into the shoes”
of the initial decision maker and determines the matter on its own (Suncor Energy Inc v Canada-Newfoundland and Labrador Offshore Petroleum Board, 2021 FC 138 (Suncor) at paras 64 and 68).
[12] Therefore, this application must be treated as a new proceeding. In this way the Court will act de novo independently of the case as a whole, which will allow the parties to present new evidence and the Court to hear new arguments, to make its own findings and to order any corrective measures (Perrault v Canada (Foreign Affairs), 2023 FC 1051 [Perrault] at para 27, which cites the Federal Court of Appeal in Canada (Health) v Preventous Collaborative Health, 2022 FCA 153 at paras 12 and 14).
(b) Subsections 19(1) and 19(2) and section 25 of the ATIA
[13] In this case, in a trial de novo, the Court is not reviewing a decision of the federal institution in and of itself, but it is determining for itself whether the exemptions from disclosure provided for in section 19 of the ATIA are applicable. However, section 44.1 provides for the Court to simply ask what decision it would have made (Canada (Minister of the Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 83; Perrault, at paras 29 and 43).
[14] Subsection 19(1) of the ATIA creates a prohibition on the disclosure of “personal information”
within the meaning of section 3 of the PA. However, subsection 19(2) of the ATIA permits the disclosure of personal information on a discretionary basis in the cases set out in paragraphs (a) to (c). Discretionary decisions of administrative decision makers are to be reviewed on a standard of reasonableness (Canada (Office of the Information Commissioner) v Canada (Prime Minister), 2019 FCA 95 at para 31).
[15] The Court must consider two aspects when evaluating whether the decision made by the administrative decision maker was unreasonable—the administrative decision maker’s rationale for the decision and the outcome to which it led (Vavilov at para 83). A reasonable decision is one that is based on a coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision (Vavilov at para 85).
[16] In this case, the Court will proceed with a de novo analysis to determine whether the information required by the applicant is subject to the personal information provisions in subsection 19(1) of the ATIA to refuse to disclose the information, and consequently, to analyze whether the discretionary decision of the respondent not to permit the disclosure of information in accordance with subsection19(2) of the ATIA is reasonable. Finally, the Court must give due consideration to the issue of severability of any part that does not contain personal information to determine whether the institutional head properly applied section 25 of the ATIA (Merck Frosst Canada Ltd. v Canada (Health), 2012 SCC 3 [Merck] at para 232; Cain v Canada (Health), 2023 FC 55 [Cain] at para 42).
(c) Burden of proof
[17] Subsection 48(1) of the ATIA establishes that, in any proceedings before the Court arising from an application under subsection 41(1) of the ATIA, the burden of establishing that the head of a government institution is authorized to refuse to disclose a record requested, or a part of such a record, is on the government institution concerned.
[18] Consequently, the burden of actually proving the head of a government institution is authorized to refuse to disclose the records requested by the applicant is on the respondent, and the Court will then draw its own conclusion as to whether any part that does not contain the personal information at issue should be exempt from disclosure.
B. Is the information requested by the applicant subject to the personal information provisions in subsection 19(1) of the ATIA?
[19] Subsection 19(1) of the ATIA provides that the head of a government institution shall refuse to disclose any record requested under this Part that contains personal information.
[20] The definition of “personal information”
in section 3 of the ATIA refers to the definition of “personal information”
in section 3 of the PA, which reads as follows:
personal information: means information about an identifiable individual that is recorded in any form. . . .
[21] Section 3 of the PA and subsection 19(1) of the ATIA therefore deal with information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing, information described in paragraphs (a) to (i) of section 3 of the PA. The information must be given a generous interpretation and the enumeration in paragraphs (a) to (i) of section 3 is not limitative but illustrative only (Canada (Information Commissioner) v Canada (Transportation Accident Investigation and Safety Board), 2006 FCA 157 [Investigation Board] at para 34).
[22] Moreover, the definition of “personal information”
requires that the information make an individual identifiable and that he or she not be truly identified. An individual will be identifiable where there is a serious possibility that an individual could be identified through the use of that information, alone or in combination with other available information (Gordon v Canada (Health), 2008 FC 258 at para 34).
(a) Paragraphs 3(a) to (i) of the PA
[23] The records in issue, in particular Exhibits D to F of the respondent, cannot be disclosed without disclosing personal information on identifiable individuals, specifically information relating to the employment history of the individual (3(b) of the PA) or the views or opinions of another individual about the individual (paragraph 3(g) of the PA). The investigation reports contain specific information, such as the names of the individuals under investigation and those who were part of the investigations, their functions, their responsibilities, their roles, their employment history, |||||||||||||||||||| and other information, that could identify the individuals.
[24] The very nature of the investigations into the three individuals, following the disclosure of all or part of their information, could make the persons involved not only identifiable, but could also make it possible to identify the persons involved in the investigations.
[25] The Court agrees with the respondent that the disclosure of the three administrative investigations will make it possible to identify the individuals involved, given the limited number of individuals employed by the Embassy with particular roles at the relevant time, the nature of the allegations at the heart of the investigations and the details contained in the reports.
[26] The fact that the applicant claims to know the individuals identified in the investigation reports who were her colleagues because it is a small embassy does not diminish the individual privacy rights of all the people identified in the reports. The ATIA and the PA do not provide for information already known to the requester to be excluded from personal information (Perrault, para 48). The protection of the privacy of individuals is paramount over the right of access, except as prescribed by law, as privacy is a fundamental value in modern, democratic states (H.J. Heinz Co. of Canada Ltd. v Canada (Attorney General), 2006 SCC 13 [Heinz] at para 2; Dagg v Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 S.C.R. 403 [Dagg] at para 48; Canada (Information Commissioner) c Canada (Public Safety and Emergency Preparedness), 2019 FC 1279 [Public Safety] at para 30). Moreover, the Supreme Court of Canada has recognized that the “importance of privacy rights is such that unauthorized release of personal information should be avoided, even if only some members of the public could draw the connections that would link the information to an identifiable individual”
(Public Safety at para 62).
[27] With regard to the applicant’s allegation that her name is cited in the investigation reports, the Court can, with the respondent’s consent, confirm for the applicant that her name does not appear in the records at issue.
[28] Consequently, the Court concludes that the records in question do indeed contain personal information about identifiable individuals which, under subsection 19(1) of the ATIA, must not be disclosed by the respondent.
(b) Paragraphs 3(j) to (m) of the PA
[29] Paragraphs (j) to (m) of section 3 of the PA provide exceptions to the definition of “personal information”
that apply to subsection 19(1) of the ATIA (Investigation Board at para 34). More specifically, paragraph (j) of section 3 of the PA, which was alleged by the applicant and is relevant to the present case, describes information that concerns a current or former officer or employee of a government institution and relates to his or her position or functions:
but, for the purposes of (. . .) 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 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,
[30] The Supreme Court of Canada in Canada (Information Commissioner) v Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8 [Mounted Police] stated as follows at para 38:
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.
[31] Indeed, if the information requested is related to the general characteristics of the position or duties of an employee of a government institution, such as the examples in the non-exhaustive list in subparagraphs (i) to (v) of paragraph 3(j) of the PA, the government institution must refuse to disclose the requested records.
[32] The purpose of paragraph 3(j) of the PA is to ensure that public servants are accountable to the general public, not to completely deprive individuals of their right to privacy. The activities to which paragraph 3(j) of the PA refers are those set out in a job description [Mounted Police at para 38]. As pointed out by the respondent, Parliament did not refer to the expression “employment history”
in the subparagraphs of paragraph 3(j) of the PA when it had the opportunity to do so, having used it expressly in paragraph 3(b) of the PA.
[33] The respondent alleges that the personal information requested by the applicant clearly exceeds the exception provided for in paragraph (j) of section 3 of the PA, as it does not concern the very fact that the individuals were employed by the institution, their titles or contact information, their classifications or salaries, or their names. I agree with the applicant that the reports requested by the applicant |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| are not of the same nature as those that would be found in a job description and are not a direct function of the position or duties of the job. Rather, the reports refer to highly personal characteristics, such as employment history and the views or opinions of another individual about the individual, and do not focus on the general nature of the employee’s position or functions (Mounted Police at para 38) and therefore do not fall within the exception in paragraph 3(j) of the PA.
[34] The applicant alleges that paragraph 3(l) of the PA, reproduced below, applies to the situation at hand, since the three dismissed employees received discretionary benefits of a financial nature in the course of their duties. The applicant misinterpreted paragraph 3(l) of the PA. She claims that the three local employees who were dismissed received discretionary benefits of a financial nature in the course of their duties:
(l) information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit
[35] Section 3(l) refers to discretionary benefits, in particular the granting of permits or licences. Investigation reports revealing |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||, are not examples that fall within the exception of paragraph 3(l) of the PA.
[36] Consequently, the Court concludes that the respondent is obliged to refuse disclosure of the investigation reports which contain personal information of individuals within the meaning of section 3 of the PA and are not covered by the exemptions set out in paragraphs 3(j) and 3(l) of the PA, since the information is subject to subsection 19(1) of the ATIA.
C. Whether the respondent reasonably exercised its discretion under subsection 19(2) of the ATIA
[37] The purpose of subsection 19(2) of the ATIA is to give government officials discretionary power to disclose records containing the personal information of individuals in certain situations that are otherwise not permitted under subsection 19(1) of the ATIA.
[38] Subsection 19(2) of the ATIA nevertheless allows the head of a government institution to disclose records containing personal information where (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 PA.
[39] Subsection 8(1) of the PA prohibits the disclosure of an individual’s personal information without his or her consent. Paragraphs (a) to (m) of subsection 8(2) of the PA provide situations where the institution may, at its discretion, authorize disclosure.
[40] Indeed, as long as one or more of the exceptions set out in subsection 8(2) of the PA apply, subsection 19(2) of the ATIA allows the government institution to disclose records containing personal information in the exercise of its discretionary power.
(i) Paragraph 19(2)(a) - the individual to whom it relates consents to the disclosure
[41] The applicant criticizes the respondent for failing to produce evidence that the individuals concerned did not consent to the disclosure of personal information. The respondent states that it did not obtain the consent of the individuals concerned because it was unreasonable and inappropriate to seek the consent of the many people involved, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||. In this case, the Court can easily understand that it was reasonable not to have sought the consent of all the individuals concerned. Indeed, seeking the concerned persons’ consent to investigations |||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.The same applies to third parties who were involved in the investigation. In my opinion, the chances of obtaining their consent were minimal, if not non-existent.
[42] The applicant also submits that individuals consented to the disclosure of personal information via social media, without, however, demonstrating such disclosure. She refers to a link on the LinkedIn site, but this does not demonstrate that the information or investigation has been published and/or is available to the public. Rather, it demonstrates general information, such as the individuals’ experience and the positions they hold. Therefore, the exception provided for in paragraph 19(2)(a) of the ATIA does not apply in this case.
(ii) Section 19(2)(b) - the information is publicly available
[43] The Court finds that the applicant’s allegation that the information is public because employees and officials have access to it via the respondent’s internal Intranet is unfounded. There is no evidence to this effect in the Court’s file. Information such as |||||||||||||||||||||||||||||||||||||||||| investigations are not generally described in general employee profiles. On the contrary, it would be unreasonable to include this type of information in employee profiles so that it would be accessible to all other employees in the organization. Moreover, the fact that the profiles of all employees are accessible via the respondent’s Intranet does not mean that they are accessible to the public or to portion of the population. Therefore, the exception provided for in paragraph 19(2)(b) of the ATIA does not apply in this case.
(iii) Section 19(2)(c) – the disclosure is in accordance with section 8 of the PA
[44] Finally, with respect to subparagraph 8(2)(m)(i) of the PA, there is no reason to believe in this case that the public interest in disclosure clearly outweighs any invasion of privacy of all the individuals involved that could result from the disclosure. Not only would disclosure not clearly outweigh any invasion of privacy, but it would not outweigh at all. The protection of individual privacy prevails over the right of access to information, as privacy is a fundamental value in modern, democratic states (Heinz at para 2; Public Safety at para 30). Therefore, the exception provided for in paragraph 19(2)(c) of the ATIA does not apply in this case.
[45] For these reasons, the Court is of the opinion that the respondent exercised its discretion appropriately since the circumstances set out in subsection 19(2) of the ATIA do not exist in this case and cannot justify the disclosure of the personal information in question.
D. Whether the respondent erred in refusing to sever any part of the record, under section 25 of the ATIA
[46] The Supreme Court of Canada in Merck commented on the application of section 25 of the ATIA as follows at paras 236 to 238:
[236] To begin, it is important to recognize that applying s. 25 is mandatory, not discretionary. The section directs that the institutional head “shall [not ‘may’] disclose any part of the record that does not contain” exempted information, provided it can reasonably be severed: see Dagg, at para. 80. Thus, the institutional head has a duty to ensure compliance with s. 25 and to undertake a severance analysis wherever information is found to be exempt from disclosure.
[237] The heart of the s. 25 exercise is determining when material subject to the disclosure obligation “can reasonably be severed” from exempt material. In my view, this involves both a semantic and a cost-benefit analysis. The semantic analysis is concerned with whether what is left after excising exempted material has any meaning. If it does not, then the severance is not reasonable. As the Federal Court of Appeal put it in Blank v. Canada (Minister of the Environment), 2007 FCA 289, 368 N.R. 279, at para. 7, “those parts which are not exempt continue to be subject to disclosure if disclosure is meaningful”. The cost-benefit analysis considers whether the effort of redaction by the government institution is justified by the benefits of severing and disclosing the remaining information. Even where the severed text is not completely devoid of meaning, severance will be reasonable only if disclosure of the unexcised portions of the record would reasonably fulfill the purposes of the Act. Where severance leaves only “[d]isconnected snippets of releasable information”, disclosure of that type of information does not fulfill the purpose of the Act and severance is not reasonable: Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.), at pp. 558-59; SNC-Lavalin Inc., at para. 48. As Jerome A.C.J. put it in Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 (T.D.):
To attempt to comply with section 25 would result in the release of an entirely blacked-out document with, at most, two or three lines showing. Without the context of the rest of the statement, such information would be worthless. The effort such severance would require on the part of the Department is not reasonably proportionate to the quality of access it would provide. [Emphasis added; pp. 160-61.]
[238] That said, one must not lose sight of the purpose of s. 25. It aims to facilitate access to the most information reasonably possible while giving effect to the limited and specific exemptions set out in the Act: Ontario (Public Safety and Security), at para. 67.
[47] The respondent alleges that personal information that could identify individuals is found throughout the records: for example, the elements of the investigation reports that could identify individuals include their names, workplaces, positions, job descriptions, names of co-workers and third parties involved, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| And therefore, severance is not possible without leaving only disconnected snippets of unintelligible information. I agree (Merck at para 237). Also, the fact that there are a limited number of people who held limited positions at the Canadian Embassy in Dakar at the time of the investigations would mean that severance is not possible without the risk of identifying the people concerned and disclosing their personal information.
[48] Accordingly, the Court concludes that the respondent met its obligation to consider whether any part of the record that did not contain any such personal information could be severed and properly refused to make the said severance among the records, in accordance with section 25 of the ATIA.
IV. Conclusion
[49] The Court dismisses this application for judicial review. Subsection 53(1) of the ATIA provides that the costs of and incidental to all proceedings in the Court under this Part shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise. In its discretion, the Court is of the opinion that it is not appropriate in this case to award the costs of and incidental to this proceeding against the applicant in favour of the respondent.
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