Date: 20090529
Dockets: A-413-08
A-379-08
Citation: 2009 FCA 181
CORAM: RICHARD C.J.
SEXTON J.A.
SHARLOW J.A.
A-413-08
BETWEEN:
THE COMMISSIONER OF THE ROYAL
CANADIAN MOUNTED POLICE
Appellant
and
THE INFORMATION COMMISSIONER OF CANADA
Respondent
A-379-08
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
(Respondent on cross-appeal)
and
THE PRIME MINISTER OF CANADA
Respondent
(Appellant on cross-appeal)
Heard at Ottawa, Ontario, on May 27, 2009.
Judgment delivered at Ottawa, Ontario, on May 29, 2009.
REASONS
FOR JUDGMENT BY: SHARLOW
J.A.
CONCURRED
IN BY: RICHARD
C.J.
SEXTON
J.A.
Date: 20090529
Dockets: A-413-08
A-379-08
Citation: 2009 FCA 181
CORAM: RICHARD
C.J.
SEXTON
J.A.
SHARLOW
J.A.
A-413-08
BETWEEN:
THE COMMISSIONER OF THE ROYAL CANADIAN
MOUNTED POLICE
Appellant
and
THE INFORMATION COMMISSIONER OF CANADA
Respondent
A-379-08
(Cross appeal)
BETWEEN:
THE INFORMATION COMMISSIONER OF CANADA
Appellant
and
THE PRIME MINISTER OF CANADA
Respondent
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
This
is an appeal by the Commissioner of the Royal Canadian Mounted Police
(A-413-08), and a cross-appeal by the Prime Minister of Canada (A-379-08), of the
portion of the judgment of Justice Kelen (2008 FC 766) that reflects his
conclusion that certain records under the control of the Royal Canadian Mounted
Police (RCMP) and the Privy Council Office (PCO) that contain the Prime Minister’s
agenda (or parts of it) are subject to disclosure under the Access to
Information Act, R.S.C. 1985, c. A-1 (2008 FC 766, at paragraphs 101 to
127).
[2]
The
RCMP and the PCO are “government institutions” as defined in the Access to
Information Act. Therefore, records under their control are subject to
disclosure, subject to a number of statutory exceptions. One of the exceptions
is found in subsection 19(1) of the Access to Information Act, which
precludes the disclosure of “personal information as defined in section 3 of
the Privacy Act.”
[3]
The
definition of “personal information’ in section 3 of the Privacy Act,
R.S.C. 1985, c. P-21 reads in relevant part as follows (my emphasis):
|
3. In this Act,
|
3. Les
définitions qui suivent s’appliquent à la présente loi.
|
|
"personal
information" means information about an identifiable individual that is
recorded in any form including, without restricting the generality of the
foregoing […]
|
«renseignements
personnels » Les renseignements, quels que soient leur forme et leur support,
concernant un individu identifiable, notamment […]
|
|
[…]
|
[…]
|
|
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 […].
|
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 […].
|
[4]
It
is undisputed that the records in issue are under the control of the RCMP and
the PCO, which are “government institutions” as defined in the Privacy Act.
It is also undisputed that the records contain information about the Prime
Minister, which is prima facie “personal information” within the scope
of the statutory definition. The information relates to the position or
functions of the Prime Minister, which means that paragraph (j) is
potentially in play. It follows that the records cannot be disclosed unless the
exception in paragraph (j) applies. That exception will apply, and the
records must be disclosed, if the Prime Minister is an “officer of a government
institution” within the meaning of those words as used in the Privacy Act.
[5]
Justice
Kelen concluded that the Prime Minister is an officer of a government
institution, and ordered the disclosure of the records. In reaching that
conclusion, he relied on the statutory definitions of “public officer” in the Financial
Administration Act, R.S.C. 1985, c. F-11, and the Interpretation Act,
R.S.C. c. I-21. I agree with the Commissioner of the RCMP and the Prime
Minister that Justice Kelen erred in law in importing into the Privacy Act
the definitions of “public officer” from statutes dealing with different
subjects that use that term in different contexts. The meaning of the phrase
“officer of a public institution” as used in the Privacy Act should be
determined from the contextual factors within the Privacy Act itself
(including its legislative history), and other statutes that are related or
deal with the same subject matter, such as the Access to Information Act.
[6]
The
Information Commissioner argues that, because the Prime Minister presides over
the PCO, the Prime Minister is an “officer” of the PCO (or, in French, un «
cadre » du Bureau du Conseil privé). There would be considerable force in
this argument if paragraph (j) of the definition of “personal
information” in the Privacy Act were read literally and in isolation
from the rest of the Privacy Act.
[7]
However,
as this Court found in three related appeals delivered orally yesterday (Information
Commissioner of Canada v. Minister of National Defence et al., 2009 FCA 175),
the Access to Information Act was drafted on the basis of a well
understood convention that the Prime Minister’s office is an institution of
government that is separate from the PCO. It was for that reason that this
Court agreed with Justice Kelen that the Prime Minister’s office is a government
organization that is separate from the PCO.
[8]
The
same understanding about the special governmental role of the Prime Minister would
have formed part of the foundation for the drafting of the Privacy Act. It
follows, in my view, that if Parliament had intended the Prime Minister to be
treated as an “officer” of the PCO for the purposes of the Privacy Act,
it would have said so expressly. It also follows that it would be inconsistent
with the intention of Parliament to interpret the Privacy Act in a way
that would include the Prime Minister within the scope of the phrase “officer
of a government institution” as used in paragraph (j) of the definition
of “personal information” in section 3 of the Privacy Act.
[9]
For
these reasons, the appeal in A-413-08 will be allowed with costs, and the cross-appeal
in A-379-08 will be allowed without costs, as none were sought. A copy of these
reasons will be placed in each of the Court Files A-379-08 and A-413-08.
“K.
Sharlow”
“I
agree.
J. Richard C.J.”
“I
agree.
J. Edgar Sexton J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-413-08
STYLE OF CAUSE: The
Commissioner of the Royal Canadian Mounted Police v. The Information
Commissioner of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 27, 2009
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: RICHARD C.J.
SEXTON J.A.
DATED: May 29, 2009
APPEARANCES:
|
Daniel Brunet
Marlys Edwardh
Adriel Weaver
|
FOR THE APPELLANT
|
|
Christopher
Rupar
Mandy E. Moore
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Information
Commissioner of Canada
Ottawa, Ontario
Marlys Edwardh Barristers Professional
Corp.
Toronto, Ontario
|
FOR THE APPELLANT
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-379-08
STYLE OF CAUSE: The
Information Commissioner of Canada v. The Prime Minister of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May
27, 2009
REASONS FOR JUDGMENT BY: SHARLOW
J.A.
CONCURRED IN BY: RICHARD
C.J.
SEXTON J.A.
DATED: May
29, 2009
APPEARANCES:
|
Daniel Brunet
Marlys Edwardh
Adriel Weaver
|
FOR THE APPELLANT -
Respondent on cross-appeal
|
|
Christopher Rupar
Mandy E. Moore
|
FOR THE RESPONDENT -
Appellant on cross-appeal
|
SOLICITORS
OF RECORD:
|
Information Commissioner of Canada
Ottawa, Ontario
Marlys Edwardh Barristers Professional
Corp.
Toronto, Ontario
|
FOR THE APPELLANT
Respondent on cross-appeal
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
Appellant on cross-appeal
|
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