dagg v. canada
A-675-93
The Minister of Finance (Appellant)
v.
Michael A. Dagg (Respondent)
Indexed as: Dagg v. Canada (Minister of Finance) (C.A.)
Court of Appeal, Isaac C.J., Stone and McDonald JJ.A."Ottawa, January 24, 25 and April 21, 1995.
Construction of statutes " Privacy Act, s. 3 " Finance Minister deleting names, identification numbers, signatures from Departmental log-in sheets as "personal information" " Motions Judge holding information "personal" if "predominant characteristic" personal " Unsupported by case law, definition " Information either personal or not " Unwarranted attempt to amend definition of "personal information" " Also erred in holding Privacy Act to be given limited, restrictive scope " Reference to Minister's speech in House " Purpose of Access to Information Act, Privacy Act reviewed " Acts read together in complementary, harmonious fashion " Neither subordinate to other " No authority for obiter dictum benefit of doubt as to whether information personal should be given to interpretation favouring disclosure.
Access to information " Minister deleting names, identification numbers, signatures from sign-in logs maintained by security staff to assist in locating employees in event of fire " Information sought to ascertain unpaid overtime with view to interesting union in retaining respondent as access to information consultant " S. 41 right to review access refusal limited to Minister's decision though requirement Information Commissioner have reviewed complaint " S. 19(2) discretion properly exercised " No public interest to weigh " Disclosure sought for private, not public, interest.
Privacy " Minister deleting names, identification numbers, signatures from sign-in logs maintained by security staff to assist in locating employees in case of fire " Names appearing with identification numbers, signatures " Personal information relating to identifiable individuals within Privacy Act, s. 3(i) as disclosure of names revealing whereabouts of individuals at specified times " Respondent not discharging onus of showing exceptions to non-disclosure of personal information in s. 3(j) applied " No evidence information on sheets indicating those present working.
This was an appeal from a Trial Division order in an access to information matter allowing the respondent's application for a review of the Minister of Finance's decision to release certain sign-in logs but to delete therefrom the employees' names, identification numbers and signatures, on the ground that such information was "personal" under Privacy Act, section 3. The logs were kept by a security officer at the main entrance to the Department's premises between 6:30 p.m. and 6:00 a.m. to assist in the location of persons in the building in the event of fire. The respondent intended to use the information to interest the union in retaining his services as a professional access to information consultant by providing information about unpaid overtime worked by Department employees. The respondent complained to the Information Commissioner who upheld the Minister's decision. The Motions Judge held that Privacy Act, section 3 did not apply. He held that as virtually all information emanating from the government inevitably discloses, at least indirectly, both personal information regarding individuals and information about the government, or policies or positions within the government, it was necessary to ask "whether the predominant characteristic of the information whose release is sought was `personal' or professionally related" to determine whether the information was "personal" as defined in section 3. If personal, disclosure may be refused; if professionally related, it may not. He concluded that the information in question was not "personal information" within section 3 because: (1) the names on the sign-in logs did not constitute "information relating to the . . . employment history of the individual" (paragraph 3(b)); (2) they did not constitute an "identifying number, symbol or other particular assigned to the individual" (paragraph 3(c)); (3) since they did not appear with any other "personal information" (paragraph 3(i)); and (4) information whose release was sought was "predominantly of a professional and nonpersonal nature".
Privacy Act, section 3 defines "personal information" as any information about an identifiable individual including information relating to the employment history (paragraph 3(b)), any identifying number or the name of the individual where it appears with other personal information (paragraph 3(c)). According to paragraph 3(j) it does not include information that relates to the position or functions of an employee of a government institution. Under paragraph 8(2)(m), personal information may be disclosed where public interest in disclosure outweighs any invasion of privacy.
The issues were whether the Motions Judge erred in concluding that the information was not "personal information" under Privacy Act, section 3; and if so, whether the information ought to be disclosed under paragraph 3(j) or 8(2)(m).
Held, the appeal should be allowed.
The Motions Judge erred in considering the reasons of the Information Commissioner. Section 41 gives a right to a review of refusal of access to a record only if there has been a complaint to the Information Commissioner. That condition does not enlarge the scope of the review to include a review of the Information Commissioner's decision. Only the Minister's decision was before the Motions Judge for review on its merits, regardless of the Information Commissioner's decision or the reasons therefor.
The purpose of the Access to Information Act is to afford the public access to information under the control of the Government of Canada, subject to the limited and specific exceptions contained therein of which section 19, which relates to "personal information", describes but one. Similarly, the purpose of the Privacy Act is to protect the privacy of individuals with respect to "personal information" about themselves held by an institution of the Government of Canada and to provide those individuals with a right of access to that information. Both statutes must be read together, since section 19 incorporates by reference certain provisions of the Privacy Act. Neither statute is subordinate to the other. They are complementary and must be construed harmoniously with each other according to well-known principles of statutory interpretation. The Motions Judge erred in holding that the Access to Information Act was paramount and that the Privacy Act must be given a limited and restrictive scope, a position not supported by case law or the intent of Parliament as expressed by the Minister when he introduced the legislation for third reading in the House.
The predominant characteristic test was supported by neither case law nor the plain language of the statutory definition. Information in a record is either personal or it is not. The injection of the predominant characteristic test was an unwarranted attempt to amend the definition of "personal information" and was contrary to the principle that the judiciary must not trifle with the intent of Parliament.
The names in the sign-in logs were "personal information" as defined in section 3 of the Privacy Act and the Minister correctly refused to disclose them. The conclusion that paragraph 3(i) did not apply because the names did not appear with other "personal information" relating to individuals was contrary to the evidence which established that the names appeared with identification numbers and signatures, which were "personal information" relating to identifiable individuals. The names in the sheets disclosed the whereabouts of individuals at specified times. Such information is personal and relates to identifiable individuals.
The names of the employees did not fall within paragraph 3(b) because they did not relate to the education or the medical, criminal or employment history of any individual or to financial transactions in which any individual has been involved. Paragraph 3(c) (relating to identifying numbers) did not apply.
There was no authority for the Motion Judge's obiter dictum that the benefit of any doubt as to whether information is personal should be given to the interpretation which favours disclosure.
The respondent failed to discharge the onus of showing that the exceptions to non-disclosure of personal information in paragraph 3(j) applied. There was no evidence to support the contention that the information on the sign-in sheets indicated the working hours of the employees concerned, nor was there any basis for saying that the information related to employees' "position or functions".
Access to Information Act, paragraph 19(2)(c) gives the head of a government institution a discretion to disclose a record containing personal information if the disclosure is in accordance with Privacy Act, section 8. The information on the sheets did not indicate whether the employees were working, only that they were present. Disclosure of the names would not assist the respondent in his entrepreneurial endeavour. In requesting the names, the respondent was pursuing a private, rather than a public, interest in that he was seeking information to sell to a client, without any request by the client therefor. The Minister correctly held that there was no public interest to weigh. He did not exercise his discretion improperly when he declined a public interest waiver pursuant to paragraph 8(2)(m) of the Privacy Act.
statutes and regulations judicially considered
Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 6, 19(1),(2)(a),(b),(c), 31, 37(2),(5), 41, 48, 53(1).
An Act to enact the Access to Information Act and the Privacy Act, to amend the Federal Court Act and the Canada Evidence Act, and to amend certain other Acts in consequence thereof, S.C. 1980-81-82-83, c. 111, Sch. I, II.
Privacy Act, R.S.C., 1985, c. P-21, ss. 2, 3(b),(c),(i),(j) (i),(ii),(iii),(iv),(v), 8(1),(2)(m)(i),(ii).
cases judicially considered
applied:
Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551; (1988), 32 Admin. L.R. 103; 20 F.T.R. 314 (T.D.); Rubin v. Canada (Privy Council, Clerk) (1993), 48 C.P.R. (3d) 337; 62 F.T.R. 287 (F.C.T.D.).
distinguished:
Bland v. Canada (National Capital Commission), [1991] 3 F.C. 325 (abridged); (1991), 36 C.P.R. (3d) 289; 41 F.T.R. 202 (T.D.).
considered:
Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395; (1989), 64 D.L.R. (4th) 413; 28 C.P.R. (3d) 301; 32 F.T.R. 161 (T.D.).
referred to:
Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265; (1988), 52 D.L.R. (4th) 671; 19 F.T.R. 160; 86 N.R. 186 (C.A.).
authors cited
Canada. House of Commons Debates, vol. XVI, 1st Sess., 32nd Parl, 1982.
APPEAL from an order of the Trial Division (Dagg v. Canada (Minister of Finance) (1993), 70 F.T.R. 54 (F.C.T.D.)) allowing an application for review of the Minister of Finance's deletion of employees' names, identification numbers and signatures as "personal information" under Privacy Act, section 3 in releasing Departmental sign-in sheets for certain dates pursuant to a request for access to information. Appeal allowed.
counsel:
Margaret N. Kinnear for appellant.
Alan M. Riddell for respondent.
Denis J. Power, Q.C. and Steven J. Welchner for intervenor Privacy Commissioner of Canada.
Sean Michael Gaudet for intervenor Economists, Sociologists and Statisticians Association.
solicitors:
Deputy Attorney General of Canada for appellant.
Soloway, Wright, Victor, Ottawa, for respondent.
Nelligan, Power, Ottawa, for intervenor Privacy Commissioner of Canada.
Soloway, Wright, Victor, Ottawa, for intervenor Economists, Sociologists and Statisticians Association.
The following are the reasons for judgment rendered in English by
Isaac C.J.: This is an appeal from an order of the Trial Division [(1993), 70 F.T.R. 54 (F.C.T.D.)] allowing the respondent's application for a review of a decision of the Minister of Finance (the Minister). The Minister had refused to disclose parts of records which the respondent had requested, on the ground that those parts contained "personal information" within the meaning of section 3 of the Privacy Act, R.S.C., 1985, c. P-21, (the Privacy Act). The appeal addresses the conflict between the right of access of one citizen to a record under the control of the Government of Canada and the right to privacy of other citizens named in that record.
Background
The respondent is a self-styled professional Access to Information Consultant and Requester. On 16 October 1990, he filed with the Department of Finance, a request,1*ftnote1 Appeal Book, at p. 5. pursuant to section 6 of the Access to Information Act, R.S.C., 1985, c. A-1 (the Access Act), for copies of its departmental sign-in logs, signed by employees on 1, 2, 3, 8, 9, 15, 16, 22, 23, 29 and 30 September 1990. On 6 November 1990, the Minister responded to the request in part as follows:2*ftnote2 Ibid, at p. 6.
Attached are copies of the records that you have requested. Please be advised, however, that some information has been exempted from access in accordance with subsection 19(1) of the Act as it contains personal information as defined in section 3 of the Privacy Act.
The Minister disclosed to the respondent the relevant sheets from the sign-in logs, but he deleted therefrom the names of the employees, their identification numbers and signatures.
On 29 November 1990, the respondent filed with the Information Commissioner a complaint in writing pursuant to section 31 of the Access Act respecting the Minister's refusal.
On 18 March 1991, the respondent wrote to the Minister3*ftnote3 Ibid, at p. 24.
seeking a review of his earlier decision, contending that the names of the employees which had been deleted from the record should be disclosed by virtue of paragraphs 3(j) or 8(2)(m) of the Privacy Act. The Minister reviewed his decision and confirmed it.
The Information Commissioner investigated the complaint. On 4 September 1991, he reported the results of the investigation to the respondent as required by subsection 37(2) of the Access Act. In his report,4*ftnote4 Appeal Book, at pp. 27-30. the Information Commissioner examined in detail all the issues raised by the Minister's refusal and concluded that the respondent had not been deprived of a right under the Access Act. He indicated that he was unable to support the complaint. As required by subsection 37(5) of the Access Act, he informed the respondent of his right to apply to the Court for a review of the Minister's decision. Pursuant to section 41 of the Access Act, the respondent applied to the Trial Division for a review of the Minister's decision.
Evidence before the Motions Judge
The application was heard by a Motions Judge in the Trial Division. The evidence before him consisted of the affidavits of the respondent, sworn on 18 October 1991, and 23 February 1993, respectively and the exhibits referred to therein;5*ftnote5 Ibid, at pp. 4-14 and 44-49. the affidavit of Joyce McLean, sworn 2 January 1992 and the exhibits referred to therein;6*ftnote6 Ibid, at pp. 15-37. the affidavit of Reginald Langille sworn 2 January 19927*ftnote7 Ibid, at pp. 38-43. and the transcript of the cross-examination of Reginald Langille on that affidavit8*ftnote8 Ibid, Appendix I. together with an exhibit9*ftnote9 Ibid, Appendix II. referred to in the cross-examination.
Reginald Langille is a public servant. At the material times he was Director of Security Services for the Department of Finance. In his affidavit, he explained that, like most departments of the Government of Canada, the Department of Finance controls access to and egress from its premises between the hours of 6:30 p.m. and 6:00 a.m. on week-days, week-ends and statutory holidays, by means of a Control Access/ Egress Register (sign-in logs) kept by a security officer at the main entrance to and exit from the premises. Employees wishing to enter the premises must present their identification cards to the security officer and sign the register, recording therein their names, times of entry, the floor to which they are going, the name of the Department and their identification numbers. In cross-examination, he said that employees record the times of departure when they leave the premises.
In paragraphs 8, 9, and 10 of his affidavit, Mr. Langille explained the purpose of the register and the uses for the information it contains. The primary purpose of the register is to assist emergency personnel in locating persons in the building, for example, in the event of a fire. The information has also been used in investigating incidents of theft or vandalism, although this is not its purpose. Mr. Langille stated that very occasionally he may "authorize release of information to a supervisor or similar individual for the purpose of verifying that an individual was present in the building at a particular time" or to the individual to whom the information pertains. However, in paragraph 11 he stated that the information is not used to verify overtime claims because it does not contain a record of what employees are doing on the premises or whether they are working overtime. The evidence Mr. Langille gave in cross-examination does not contradict the affidavit. Indeed, it confirms the affidavit evidence which was not contradicted.
In his affidavit sworn on 23 February 1993, filed, presumably, in answer to the affidavits of Mr. Langille and Ms. McLean, the respondent deposed as follows in paragraphs 4 and 5:
4. My reason for filing this Access Request was to obtain information upon which to base a marketing initiative with prospective clients. Once I had obtained this information, I planned to use the information to determine how many members of the Economists and Statisticians Group in the Department of Finance were regularly working overtime, and to determine the total number of hours of overtime they were working. It was my intention to find out the total number of these individuals who had sought and obtained compensation for their overtime work. It was my intention to approach the bargaining agent for the Economists and Statisticians Group, ESSA, with this information, for the purpose of demonstrating how my knowledge of the Access to Information Act, and my skills in obtaining information relevant to their members, could be used for the purpose of providing ESSA negotiators with background information useful to their collective bargaining with Treasury Board. My reasoning was that the disclosure to ESSA that many of its members were regularly putting in several hours of overtime every month, without being compensated for this work, could prove to be a useful bargaining tool for ESSA negotiators when renegotiating the collective agreement between their members and Treasury Board, and this particularly during the present era in which its members are permitted no wage increases, pursuant to the present polices (sic) of the Federal Government. I anticipated that ESSA would find such information to be very useful and would subsequently be disposed to retain my professional services.
5. At the time I believed, and still do believe, that the sign-in-sheets provided the best indication of the number of ESSA members who were regularly working overtime, and of the total number of overtime hours which ESSA members, as a group, were regularly putting in. The sign-in-sheets would disclose to me how many different individuals were signing in for work, after hours, and for how long they remained at work. Once I had the sign-in-sheets, I could identify which of these individual (sic) were members of ESSA, by comparing the names thereon to the list of members of the Economics (sic) and Statisticians group. I also believe that, as a general rule, any employee who came into work after hours, and therefore signed the sign in sheet, would be coming in order to work, since Federal Government employees are forbidden to use their work stations and office equipment, after hours, for personal business.
In paragraphs 7 through 10, he defined the consequences to him of the Minister's refusal and his own motivation in pursuing the matter as vigorously as he has:
7. Since the Respondents (sic) refusal to disclose the names on the sign in sheet, I have diligently attempted to obtain the information which I seek through other means, but without success. I know of no method by which to determine how many members of the Economists and Statisticians Group are regularly working overtime, and how many overtime hours the group is putting in, other than the method which I am using and which is described above.
8. When I learned of the Respondents' (sic) refusal to disclose to me the names on the sign-in-sheets, I was most disturbed. The refusal to disclose these poses a serious threat to my business activities, whose seriousness far transcends the resulting failure of my marketing initiative with ESSA. The issue of whether names should be disclosed by the Federal Government when producing documentation requested under the Access to Information Act is a recurring one. It frequently crops up in many of my Access Requests for my established clients.
9. The issue of disclosure of names, for example, is a major issue relating to temporary help call-ups, the (sic) which form a great number of the Access Requests which I am paid to file on behalf of my existing clients. On the basis of my experience in attempting to obtain the disclosure of names on documents released to me pursuant to the Access to Information Act, it is my view that there is a serious inconsistency between government departments, as to whether names should be disclosed. This uncertainty constitutes a problem for me and my clients. My reputation and marketability as a professional Access to Information Consultant, depends largely on my ability to predict to my clients whether they will be able to gain access to information, under the Access to Information Act, and obtain useful documentation. The uncertainty makes it more difficult for me to make accurate predictions.
10. It is my hope that the within application will lead to a judicial precedent which will force all government departments to deal with this issue consistently, and to disclose all names wherever this can be shown to be necessary to the proper appreciation of the information by the requester, without unduly interfering in the privacy of individual government employees. Such a precedent will be invaluable to both me and my clients, and will enable me to enhance my marketability with my clients, by better predicting which information they can and cannot obtain.10*ftnote10 Appeal Book, at pp. 45-48.
Judgment of the Motions Judge
On this evidence, the learned Motions Judge allowed the application with costs and, for reasons which I will discuss presently, "overturned"11*ftnote11 (1993), 70 F.T.R. 54, at p. 60. the decision of the Minister.
He concluded that the application for review of the Minister's decision raised three issues for determination: first, "whether the [Minister] erred in concluding that the names on the sheets [from the sign-in logs] constituted personal information within the meaning of the Privacy Act"; secondly, "whether the [Minister] erred in concluding that the names do not fall within the scope of the exemption provided in s. 3(j) of the Privacy Act"; and thirdly, "whether the [Minister] erred in concluding that the public interest override in s. 8(2)(m) of the Privacy Act did not militate in favour of disclosing the names on the sheets."12*ftnote12 Ibid, at p. 56.
After quoting from the decision of the Trial Division in Bland v. Canada (National Capital Commission), [1991] 3 F.C. 325, at page 340, upon which he placed great reliance, the Motions Judge concluded that:13*ftnote13 Ibid, at p. 58.
These responses from the Department and the Commissioner ignore the law applicable here. The names on the sign-in sheets do not fall within the scope of either paragraph 3(b), (c) or (i) of the Privacy Act, nor do they fall within the residual general ambit of this section.
In reaching the conclusion that section 3 of the Privacy Act had no application to the case before him, the Motions Judge purported to apply what he characterized as the "predominant characteristic" test. He started from the premise that "virtually all information emanating from the government inevitably discloses, at least indirectly, both personal information regarding individuals and information about the government, or policies or positions within the government."14*ftnote14 Ibid, at p. 59. He then reasoned that in order to determine whether any such information is "personal information" as defined in section 3 of the Privacy Act, one was required to ask "whether the predominant characteristic of the information whose release is sought is [cad96]personal[cad39] or professionally related." If personal, disclosure may be refused; if professionally related, it may not. Applying that test to the facts of this case, he said:
The information of the sign-in sheets, even if potentially usable to ascertain personal information about the individuals thereon, is nonetheless predominantly of a professional and non-personal nature. The sign-in sheets, taken as a whole, indicate how many individuals are working overtime for the Finance Department.15*ftnote15 Ibid, at p. 59.
He purported to find support for this conclusion in principles said to be laid down in an earlier decision of the Trial Division in Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395.
Having concluded that the information which the Minister had refused to disclose was not "personal information" within the meaning of section 3 of the Privacy Act, the Motions Judge found it unnecessary to deal with the other issues raised by the application.
The Appeal
The appellant filed his notice of appeal against this decision on 1 December 1993.
By order dated 5 April 1994, leave to intervene in this appeal was granted to the Privacy Commissioner of Canada and to the Economists, Sociologists and Statisticians Association of Canada (ESSA), respectively.
The Issues
Three issues were argued before us: first, whether the Motions Judge was wrong in concluding that the information which the Minister had refused to disclose was not "personal information" within the meaning of section 3 of the Privacy Act; if that question is answered in the affirmative, whether the information ought, nonetheless, to be disclosed by reason of the provisions of paragraph 3(j) or, alternatively, of paragraph 8(2)(m) of the Privacy Act.
Before dealing with these issues, however, it might be helpful to reproduce the relevant provisions of the applicable legislation.
Relevant Statutory Provisions
A. Access Act
Purpose of Act
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.
. . .
Personal Information
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. [Emphasis added.]
. . .
Review by the Federal Court
41. Any person who has been refused access to a record requested under this Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Information Commissioner are reported to the complainant under subsection 37(2) . . . .
. . .
48. In any proceedings before the Court arising from an application under section 41 . . . , 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.
. . .
53. (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise.
B. Privacy Act
Purpose of Act
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.
Interpretation
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,
(c) any identifying number, symbol or other particular assigned to the individual,
. . .
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual,
but, for the purposes of . . . 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) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
(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, or
(ii) disclosure would clearly benefit the individual to whom the information relates.
Analysis
Before embarking upon an analysis of the issues in this appeal, I consider it appropriate to make some observations about the manner in which the Motions Judge approached the review under section 41 of the Access Act. The Motions Judge approached the application as if it were one for review not only of the decision of the Minister, but also of the report of the Information Commissioner. Thus, he commenced his analysis of the issues by stating:16*ftnote16 Ibid, at p. 57.
In my view it is necessary to focus in some detail on the responses given to the applicant by the Department of Finance and the Commissioner.
The reply from the Department, and to a lesser extent from the Commissioner, were slanted toward the position of giving sleeves from a vest, namely: what we are giving you and telling you has the appearance of being helpful but in the final analysis lacks real direction or assistance to the information-seeking applicant.
The respondent's complaint was that he had been refused access to a record under the control of the Department of Finance. I read section 41 as giving to the respondent a right to a review of that refusal by this Court only if he had previously complained to the Information Commissioner. But that condition does not enlarge the scope of the review to sweep in a review of the decision of the Information Commissioner. The latter decision and the reasons therefor are certainly of interest; however, it was the decision of the Minister and not the decision of the Information Commissioner which was before the Motions Judge for review. The Minister's decision fell to be assessed on its merits, irrespective of the decision of the Information Commissioner or the reasons given therefor. Consequently, the Motions Judge was wrong to take into account the reasons of the Information Commissioner in reaching the conclusion that he did.
I turn now to the central issues in this appeal and deal with them in order.
I) IS THE INFORMATION WHICH THE MINISTER REFUSED TO DISCLOSE "PERSONAL INFORMATION" WITHIN THE MEANING OF SECTION 3 OF THE PRIVACY ACT?
The Motions Judge gave four reasons for concluding that the information which the Minister had refused to disclose was not "personal information" within the meaning of section 3 of the Privacy Act.
First, he said the names on the sign-in logs do not constitute "information relating to the . . . employment history of the individual" within the meaning of paragraph 3(b) of the Privacy Act. Secondly, he said those names do not fall within paragraph 3(c) of the Privacy Act, because they cannot constitute an "identifying number, symbol or other particular assigned to the individual". Thirdly, he said since those names do not appear there with any other "personal information," paragraph 3(i) of the Privacy Act does not shield them from disclosure. Fourthly, he said that the information whose release was sought was "predominantly of a professional and nonpersonal nature"17*ftnote17 Ibid, at p. 59. and therefore, not "personal information" as defined in section 3 of the Privacy Act.
The appellant, supported by the intervenor, the Privacy Commissioner of Canada, contends that the Motions Judge erred in several respects, to be discussed later, when he concluded that the information which the Minister had refused to disclose was not "personal information" within the meaning of section 3 of the Privacy Act. They contend further that the Minister properly exercised his discretion in deciding, pursuant to paragraph 8(2)(m) of the Privacy Act, that, in the circumstances of this case, the public interest in disclosure did not outweigh the invasion of privacy that could result from disclosure of the information. The respondent, supported by the intervenor, the Economists, Sociologists and Statisticians Association, contends to the contrary.
A. The Access Act and the Privacy Act should be construed on the same footing
I begin the analysis by adverting to the interpretative approach which the Motions Judge took in construing the two statutes in issue in this case, because that approach appears to have infected his view of the issues he was called upon to decide. In purported reliance on Secretary of State for External Affairs, supra, he stated:18*ftnote18 Ibid, at p. 59.
This court has pointed out virtually all information emanating from the government inevitably discloses, at least indirectly, both personal information regarding individuals and information about the government, or policies or positions within the government. This being the case, the question of whether information falls within the scope of "personal information" as defined in section 3 of the Privacy Act is to be determined by whether the predominant characteristic of the information whose release is sought is "personal" or professionally related: Information Commissioner of Canada v. Secretary of State for External Affairs (supra).
The information of the sign-in sheets, even if potentially usable to ascertain personal information about the individuals thereon, is nonetheless predominantly of a professional and non-personal nature. The sign-in sheets, taken as a whole, indicate how many individuals are working overtime for the Finance Department.
Later, in purported reliance on a passage from Bland, supra, at page 336 that cases under the Access Act must be decided from the perspective that "[t]he general rule is disclosure, the exception is exemption and the onus of proving the entitlement to the benefit of the exception rests upon those who claim it," he stated:19*ftnote19 Ibid, at p. 60.
The respondent makes the point that the disclosure of the names of individuals on the sign-in sheets would indicate on which day and at which time these individuals entered and/or exited the premises of the Department of Finance and that the whereabouts of named individuals on a given day is prima facie personal information about the individuals, as described in the definition of personal information which appears in the Privacy Act.
For reasons stated earlier, I cannot accept the proposition because of the far-reaching negative impact it would have on the citizens' rights under the Access to Information Act, R.S.C. 1985, c. A-1. Also, I am satisfied that any objective analysis of s. 3 of the Privacy Act clearly indicates that Parliament intended that only a very limited and specific type of information constitutes "personal information" and that most information emanating from government should in fact be disclosed.
It is my respectful view that any "objective analysis" of the two statutes in issue here will show the contrary. The Access Act and the Privacy Act were enacted by Parliament as schedules to An Act to enact the Access to Information Act and the Privacy Act, to amend the Federal Court Act and the Canada Evidence Act, and to amend certain other Acts in consequence thereof,20*ftnote20 S.C. 1980-81-82-83, c. 111, Sch. I and II. and came into force at the same time. Their purposes are not obscure. The purpose of the Access Act, stated in subsection 2(1) of that Act, is to afford to the public access to information under the control of the Government of Canada in accordance with the principles expressed in the legislation and subject to the limited and specific exceptions contained therein. Section 19 of that Act, which relates to "personal information", describes only one of many such "limited and specific exceptions" contained in the Act. Similarly, the purpose of the Privacy Act is expressly stated in section 2 thereof in plain and unambiguous language. It is two-fold: to protect the privacy of individuals with respect to "personal information" about themselves held by an institution of the Government of Canada and to provide those individuals with a right of access to that information.
It is obvious that both statutes are to be read together, since section 19 of the Access Act does incorporate by reference certain provisions of the Privacy Act. Nevertheless, there is nothing in the language of either statute which suggests, let alone compels, the conclusion that the one is subordinate to the other. They are each on the same footing. Neither is pre-eminent. There is no doubt that they are complementary and must be construed harmoniously with each other according to well-known principles of statutory interpretation in order to give effect to the stated parliamentary intention and in order to ensure the attainment of the stated parliamentary objectives.
In the two passages that I have just quoted, the Motions Judge appears to be of the view that the Access Act is paramount and that the Privacy Act must of necessity be given a limited and restrictive scope. In my respectful view, neither Bland, supra, nor Secretary of State for External Affairs, supra, is warrant for such an interpretative approach. In pretending to see such an approach in those cases and in applying it to the facts of this case, the Motions Judge fell into serious error by giving to the Access Act a pre-eminence over the Privacy Act that it does not have. Moreover, his approach is contrary to the earlier decision of the Trial Division of this Court in Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.) where it was stated at pages 556-557:
On the issue of which purpose is to govern interpretation in this case, I do not believe that either statute should be given pre-eminence. Clearly, what Parliament intended by the incorporation of a section of the Privacy Act in subsection 19(1) of the Access to Information Act was to ensure that the principles of both statutes would come into play in the decision whether to release personal information.
This approach is also contrary to the intention of Parliament as expressed by the Minister of Communications when he introduced the legislation for third reading in the House of Commons. This is what he said:21*ftnote21 Canada, House of Commons Debates, vol. XVI, 1st Sess., 32nd Parl., at p. 18853.
Combining access to information and privacy legislation in one bill has permitted the complete integration of these two complimentary types of legislation.
Parallel rights of access to information held by the government and parallel rights of review of decisions to refuse access have been created . . . . Thus the term "personal information" has the same meaning in both the privacy and access to information legislation.
Also the disclosure of information under the access to information portion of the bill is determined by the principles regarding disclosure of personal information to third persons set out in the privacy portion. This approach will ensure complete consistency between the treatment of personal information under both statutes, thus avoiding the situation which has developed in some countries where competing rights to privacy and to access to government-held information have been created.
B. "Predominant Characteristic" test
There is a further issue of construction with which I find it necessary to deal. It relates to the reference in the first passage that I have quoted to the so-called "predominant characteristic test" used by the Motions Judge to determine whether or not the sheets from the sign-in log were "personal information" as defined in section 3 of the Privacy Act. For convenience, I repeat here what he said:22*ftnote22 (1993), 70 F.T.R. 54, at p. 59.
. . . the question of whether information falls within the scope of "personal information" as defined in s. 3 of the Privacy Act is to be determined by whether the predominant characteristic of the information whose release is sought is "personal" or professionally related . . . .
The appellant and his supporting intervenor say that this test is clearly wrong. The respondent and his supporting intervenor cited no authority to support it and I have found none. Moreover, Secretary of State for External Affairs, supra, upon which the Motions Judge purported to rely, does not afford any support for that proposition. Furthermore, the test is clearly not in accord with the plain language of the statutory definition which states simply that "`personal information' means information about an identifiable individual that is recorded in any form". Information in a record is either "personal information" or it is not. The injection of the "predominant characteristic test" is an unwarranted attempt by the Motions Judge to amend the definition of "personal information" and is contrary to the admonition expressed by the Trial Division of this Court in Rubin v. Canada (Privy Council, Clerk) (1993), 48 C.P.R. (3d) 337, at pages 343-344, as follows:
Whilst it is trite that courts are responsible to interpret what Parliament enacts, only a naïve primitive would think that courts are free to do just as they please in such circumstances. The judiciary must exercise self-restraint, and must not trifle with the intent of Parliament as expressed in its enactments. The judiciary must never slip easily, if at all, into defiance of Parliament, since this country is founded on the principles of the rule of law.
C. Definition of "personal information" in section 3 of the Privacy Act
I pass now to consider whether the names on the sheets from the sign-in logs constitute "personal information" within section 3 of the Privacy Act. In this case, the Minister invoked subsection 19(1) of the Access Act when he refused to disclose those names on the basis that they were "personal information" within the meaning of section 3 of the Privacy Act. Subsection 19(1) of the Access Act incorporates by reference section 3 of the Privacy Act and, subject to subsection 19(2), mandates the refusal of a request for a record which contains "personal information" as defined in section 3 of the Privacy Act. The language is imperative.
However, subsection 19(2) invests the head of a government institution with a discretion to disclose a record that contains "personal information" in three circumstances specified in the subsection:
(a) if the individual to whom the information relates consents to the disclosure;
(b) if the information is already in the public domain; or,
(c) if the disclosure is in accordance with section 8 of the Privacy Act.
In deciding on the respondent's request under the Access Act, the Minister was thus required to consider and apply sections 3 and 8 of the Privacy Act. His refusal of the respondent's request is based upon a consideration of both provisions of the Privacy Act. The Motions Judge concluded that the Minister was wrong in his construction of section 3 of the Privacy Act and, quite properly, he declined to deal with the Minister's decision based on section 8 of that Act.
Section 3 of the Privacy Act contains a broad definition of "personal information", which I have already reproduced, but which I repeat here for convenience. The definition reads:
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 . . . .
This broad definition is enlarged by nine classes of information or illustrations, as the appellant and his supporting intervenor argue, and four classes of exceptions.
Before the Motions Judge it was contended that, having regard to the circumstances of this case, only the following three classes of illustrations need be considered:
3. . . .
(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,
(c) any identifying number, symbol or other particular assigned to the individual,
. . .
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual. [Emphasis added.]
Before us the appellant and his supporting intervenor contend that the names of the employees in the sign-in logs fall within the opening words of the definition of "personal information" in section 3 of the Privacy Act and within paragraph 3(i), since, in context, the names of the employees will disclose that they were on the premises on particular days and at specified times. Whether an employee is at a particular place and when he or she is there is information personal to that employee and therefore information about an identifiable individual. For this reason, they argued that the Motions Judge was in error in concluding that the information did not fall within the opening words of section 3 of the Privacy Act or within paragraph 3(i).
The respondent and his supporting intervenor, on the other hand, support the decision of the Motions Judge on two bases. First, they contend that the Motions Judge was right in concluding that the names of the employees did not fall within paragraphs (b), (c) and (i) of section 3 or within the opening words of that section. Secondly, and in the alternative, they contend that, even if those names constituted "personal information" within the meaning of paragraph 3(i) or within the opening words of section 3, they fell within the exception mentioned in paragraph 3(j). They say that the Motions Judge was right in concluding that they should be disclosed. For convenience, I reproduce relevant portions of paragraph 3(j):
3. . . .
(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,
. . .
(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.
They also contend that the information ought to have been disclosed in the public interest pursuant to paragraph 8(2)(m) of the Privacy Act.
I am in respectful agreement with the Motions Judge that the names of the employees do not fall within paragraph 3(b) of the Privacy Act since they are not information relating to any of the matters mentioned in that paragraph. They do not relate to the education or the medical, criminal or employment history of any individual or to financial transactions in which any individual has been involved.
No argument was addressed to us either by the parties or by the intervenors concerning the applicability of paragraph 3(c) of the Privacy Act and, upon independent review, I conclude that the Motions Judge was right in saying that it had no application to this case.
The appellant and his supporting intervenor contend that the Motions Judge erred when he concluded that paragraph 3(i) had no application to this case. For convenience, I reproduce that paragraph here:
3. . . .
(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual.
The Motions Judge concluded that the names on the sign-in logs did not constitute "personal information" within the meaning of paragraph 3(i). He gave two reasons: first, he said that they did not appear with other "personal information" relating to individuals; secondly, he said that the disclosure of the names itself would not reveal information about the individuals.
In my respectful view, the first conclusion is clearly contrary to the evidence. Mr. Langille deposed that the names appeared in the logs together with identification numbers and signatures of the individuals concerned, and the identification numbers and signatures were certainly "personal information" relating to identifiable individuals. The Motions Judge evidently ignored this evidence. In doing so, he concluded, wrongly, that the first branch of paragraph 3(i) had not been satisfied. Furthermore, I am in agreement with the appellant's submission in paragraph 34 of his memorandum of fact and law that the Motions Judge was wrong in concluding that the second branch of paragraph 3(i) had not been satisfied. The names in the sign-in logs would certainly disclose that those individuals were on specific premises, on particular days and between specified times. In other words, they were information about the whereabouts of the individuals concerned at specified times. According to Mr. Langille's evidence, this was the primary purpose for which the sign-in logs were kept. It enabled the security officers to know, in case of emergency, which individuals were on the premises, where they were and when they were there. I have no doubt that this information is personal and relates to identifiable individuals.
I conclude then that the names which the Minister had refused to disclose were "personal information" as defined in section 3 of the Privacy Act and that the Minister was right in refusing to disclose them unless they were excepted by other provisions of the Privacy Act or the Access Act.
I would not want to leave this aspect of the appeal without commenting on the following passage in the reasons of the Motions Judge lest my silence be construed as approbation of what he said:23*ftnote23 Ibid, at p. 59.
In this regard it is important to recall the rule enunciated by this court, that when there is any doubt as to whether information constitutes "personal information" which should or should not be released to members of the public, the benefit of the doubt is to be given to the interpretation which favours disclosure . . . .
The passage is obviously obiter dictum since nowhere in his reasons is there evidence that the Motions Judge had any such doubt. More importantly, neither the respondent nor its supporting intervenor sought to defend this "rule" by reference to any authority and I was unable to find any. Moreover, Secretary of State for External Affairs, supra, which he offers as support for that statement, does not in fact support it. The issue in that case was whether information about the security clearance classification relating to various employment positions was "personal information" as defined in section 3 of the Privacy Act. This Court held that the information related to the positions which the individuals held and therefore was not "personal information" within the meaning of the statute. No doubt existed in that case either and it was not necessary to give the benefit of that doubt to "the interpretation which favours disclosure".
Before us, the respondent, supported by ESSA, contends that even if the Motions Judge was wrong in deciding that the names were not "personal information" within section 3 (and I have concluded that he was), they ought, nevertheless, to have been disclosed by reason of the provisions of subparagraphs 3(j)(iii) and (iv) and paragraph 8(2)(m) of the Privacy Act.
II) WHETHER THE INFORMATION WHICH THE MINISTER REFUSED TO DISCLOSE FALLS WITHIN THE EXCEPTION IN PARAGRAPH 3(j) OF THE PRIVACY ACT
A. Paragraph 3(j) of the Privacy Act
I deal first with the submission respecting the applicability of paragraph 3(j), which I reproduce here for convenience:
3. . . .
(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,
. . .
(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 . . . .
The respondent's contention, as it relates to subparagraph 3(j)(iii), is that the sheets in the sign-in log disclose information about the responsibility which the employees of the Department of Finance feel they have to work overtime. As it relates to subparagraph 3(j)(iv), the contention is that those sheets on which employees sign and record their names and other "personal information" are documents which they have prepared in the course of employment and, therefore, "fall squarely" within this subparagraph. Finally, he contends that the names fall within the opening words of paragraph 3(j) because they constitute information about individuals who are or were officers or employees of a government institution that relates to their positions or functions. These contentions were supported by the intervenor, ESSA. It is sufficient to say that the respondent has the onus of showing that the exceptions in paragraph 3(j) clearly apply to him and that he has failed to discharge it. As discussed below, there is no evidence to support the respondent's contention that the information contained on the sign-in sheets indicates the working hours of the employees concerned. In these circumstances, there is no basis for saying that the information relates to the employees' "position or functions" as indicated in the paragraph. In other words, I find these contentions to be devoid of any merit whatsoever. I therefore conclude that paragraph 3(j) is inapplicable in gross or in detail.
B. Paragraph 19(2)(b) of the Access Act
The intervenor ESSA added that the names should have been disclosed for the further reason that they were publicly available and subject to disclosure by virtue of paragraph 19(2)(b) of the Access Act which reads:
19. . . .
(2) The head of a government institution may disclose any record requested under this Act that contains personal information if
. . .
(b) the information is publicly available . . . .
This contention is based on evidence given by Mr. Langille in cross-examination on his affidavit that it was possible for a member of the public, under the guise of signing a sheet in the sign-in logs, to see the names of those employees who had already signed in. Under this paragraph, disclosure is in the discretion of the head of the government institution concerned. No argument was addressed to us that the discretion was improperly exercised and I was unable to find any in the record. I also find this submission unmeritorious since it is based upon a premise not supported by the evidence.
III) WHETHER THE MINISTER SHOULD HAVE DISCLOSED THE NAMES ON THE SIGN-IN SHEETS PURSUANT TO PARAGRAPH 8(2)(m) OF THE PRIVACY ACT
There remains now the contention that there was an improper exercise of the Minister's discretion under paragraph 8(2)(m) of the Privacy Act.
I reproduce the relevant portions here for convenience:
8. (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.
(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, or
(ii) disclosure would clearly benefit the individual to whom the information relates.
It is useful to recall here that paragraph 19(2)(c) of the Access Act invests the head of a government institution with a discretion to disclose a record requested under that Act that contains "personal information" if the disclosure is made in accordance with section 8 of the Privacy Act.
It is the contention of the respondent and his supporting intervenor that the Minister was wrong in exercising his discretion under both branches of that provision by refusing to disclose the names and further, that the reasons given by him for such refusal were deficient. For the latter proposition, reliance was placed upon Bland, supra, upon exemption 6 of the Freedom of Information Act, 5 U.S.C. 552(b)(6) (1988) and upon jurisprudence decided by courts in the United States of America. Before proceeding further on this issue, I state emphatically, as I did during oral argument, that I find the references to legislative and jurisprudential materials from the United States unhelpful for two reasons: first, the legislation is structured differently and has a different focus from the legislation in issue in this appeal; secondly, the interpretation which courts in the United States of America have placed on the language used in that legislation must, of necessity, be understood against the statutory background. For these two reasons I have ignored those materials altogether.
I return now to the respondent's main submission on this issue. It is based upon his affidavit, sworn 23 February 1993, portions of which have been reproduced earlier in these reasons, and is stated in paragraph 65 of his memorandum in the following terms:
It is submitted that there is a clear public interest in the disclosure of the information requested by the Respondent. The Respondent is seeking release of the sign-in sheets to determine whether there is a concerted practice within the Department of Finance, for employees to work overtime without claiming remuneration at the behest of the employer. This practice, if it existed, would constitute a breach of the terms of the collective agreement between the unionized majority of employees in that department and Treasury Board. As such, this practice would therefore directly impinge upon the rights of many employees in the Department of Finance.
The principal difficulty with this submission is that it proceeds from a false premise. The uncontradicted evidence of Mr. Langille is that the information which the sheets in the sign-in logs contain does not indicate whether the employees are working, whether they are working overtime or if so, the number of hours they have worked. They record only that identifiable individuals were present in the premises, their location and the dates and times of their arrival and departure. Furthermore, the uncontradicted evidence is that this record was kept to enable the security officers to know, in case of fire or other emergencies, the identities of the employees in the building on specified days and at specified times and their location. It is true that the record has been used occasionally to facilitate investigations of fraud, theft or vandalism in the building, but it has never been used as a record of overtime worked by employees. In the face of this evidence, it is idle to construct an argument based on public interest, as the respondent and his supporting intervenor do, that that information would assist the respondent in the entrepreneurial endeavour he describes, namely, to sell to ESSA information concerning unpaid overtime which the management of the Department of Finance had caused the members of ESSA to work, in breach of the relevant collective agreement. On the uncontradicted evidence, disclosure of the names will not yield that result.
Moreover, in requesting the names on the sheets in the sign-in logs, the respondent was clearly pursuing a private interest as contrasted with a public interest. He was seeking information to sell to a client, without any request or solicitation whatsoever on the part of the client. In these circumstances the Minister was right, in responding to the respondent's request for a review of his earlier decision, that there was no public interest to weigh. This is how the Minister formulated his response:24*ftnote24 Appeal Book, at p. 26.
I now turn to your request for a "public interest" waiver of the personal information exemption in accordance with paragraph 19(2)(c) of the [Access] Act. As I am sure you can appreciate, any waiver of the protection provided individuals in the Privacy Act must be undertaken only after very careful consideration and must be balanced against the threat to an individual's privacy. I do not believe that you have demonstrated that if there were any public interest that it clearly overrides the individual's right to privacy.
I read this paragraph as communicating to the respondent that his representations had been considered and that, in the Minister's opinion, they had not raised a clear public interest sufficient to outweigh the employees' right to privacy as required by the first branch of paragraph 8(2)(m). This conclusion is entirely consistent with the record in this appeal and with well-recognized legal principles. In these circumstances I find no basis for interference by this Court with the Minister's discretion on the first branch of the paragraph. See Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 (C.A.).
The respondent and his supporting intervenor contend further that this Minister's reasons are deficient when considered in light of Bland, supra. I disagree. I see nothing in the language used in Bland, supra, which mandates that conclusion. And, in any case, that case was decided on different facts.
Finally, in light of Mr. Langille's evidence concerning the purpose of the sign-in log and the nature of the information it contains, I am unable to discern any clear benefit accruing to the individuals concerned from disclosure of their names as is required by the second branch of paragraph 8(2)(m). I conclude, therefore, that the Minister did not exercise his discretion improperly when he declined a public interest waiver pursuant to paragraph 8(2)(m) of the Privacy Act.
The appeal will therefore be allowed with costs to the appellant both here and below and the decision of the Motions Judge will be set aside. There will be no costs for or against either of the intervenors.
Stone J.A.: I agree.
McDonald J.A.: I agree.