Judgments

[1997] 1 F.C. 164

T-426-95

The Information Commissioner of Canada (Applicant)

v.

The Minister of Public Works and Government Services (Respondent)

and

Matthew McCreery (Added Party)

Indexed as: Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services) (T.D.)

Trial Division, Richard J.—Ottawa, May 13 and September 23, 1996.

Access to information — Judicial review of refusal by Minister of Public Works to disclose names of former MPs in receipt of pension under Members of Parliament Retiring Allowances Act — Requested information personal information prima facie exempted from disclosure under Access to Information Act, s. 19(1) — As much of information publicly available, or release consented to pursuant to s. 19(2)(a), (b) Minister not having discretion to refuse release — Remainder ought to be disclosed since public interest outweighing unsupported claim to personal interest pursuant to s. 19(2)(c) and Privacy Act, s. 8(2)(m)(i) — Public interest being to assist public in assessing fairness of pension scheme — Discretionary benefit exception in s. 3(l) not applicable.

Practice — Parties — Intervention — Information Commissioner applied for judicial review pursuant to Access to Information Act, ss. 3, 42(1)(a) of refusal to disclose names of MPs in receipt of statutory pension — Requester applied pursuant to Access to Information Act, s. 42(2) to be made party — Filing notice of intervention pursuant to R. 1611; indicating intention to raise issue of benefit amounts — R. 1611 allowing intervenor to address Court on issue already before it — S. 42(2) giving right to appear as party to review — Commissioner’s application in accord with RR. 319, 321.1, setting out criteria to be met to grant Court jurisdiction to hear issues raised in application for judicial review — Not requesting disclosure of benefit amounts — Intervenor cannot circumvent process, raise issues not argued by parties.

This was an application for judicial review of a refusal by the Minister of Public Works and Government Services to disclose to the added party, Mr. McCreery, the names of former MPs in receipt of pension benefits pursuant to the Members of Parliament Retiring Allowances Act (the MPRA) since it was enacted in 1952. Under the MPRA Act, an MP who has six years of service and who is retired is entitled to a pension.

Access to Information Act, subsection 19(1) requires the head of a government institution to refuse to disclose any record requested under the Act that contains personal information. The parties agreed that the requested information was personal and exempted from disclosure. Paragraph 3(l) excepts from inclusion in the definition of “personal information” information relating to any discretionary benefit of a financial nature. Subsection 19(2) permits the disclosure of 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 Privacy Act, section 8. Privacy Act, subparagraph 8(2)(m)(i) permits the disclosure of personal information where the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure. The Minister denied the request under the public interest override based on legal advice recommending that where there are doubts about the public availability of the information, the benefit of the doubt must be given in favour of protecting the information. After investigating McCreery’s complaint, the Information Commissioner offered to initiate a court action for the release of the names of former MPs in receipt of pensions, but not for the benefit amounts. The Information Commissioner applied to the Court pursuant to Access to Information Act, section 3 and paragraph 42(1)(a) and filed an originating notice of motion pursuant to Federal Court Rules, Rule 319. McCreery applied to be made a party to the applicant’s judicial review pursuant to Access Act, subsection 42(2) and filed a notice of intervention pursuant to Rule 1611 wherein he indicated an intention to raise the issue of benefit amounts.

The issues were: (1) whether McCreery, as an added party, could raise the issue of benefit amounts; (2) whether the requested information should be disclosed under the discretionary benefit exception set out in paragraph 3(l); (3) whether the requested information should be disclosed pursuant to paragraph 19(2)(a) or (b); and (4) whether the public interest in the information outweighed the private interest in preserving confidentiality.

Held, the application should be allowed.

(1) Rules 319 and 321.1 set out the criteria that must be met for the Court to have jurisdiction to hear issues raised in an application for judicial review. Rule 319 provides that an application to the Court shall be made by originating notice of motion setting out the precise relief sought. Rule 321.1 sets out the general procedure to be followed in originating applications, particularly with respect to the filing of parties’ records. The purpose of Rule 1611 is to grant intervenor status in a judicial review proceeding and to allow the intervenor to address the Court on an issue that is already before it. Access Act, subsection 42(2) gives a person a right to appear as a party to the review, namely that filed in Court pursuant to section 3 and paragraph 42(1)(a) and Rules 319 and 321.1. McCreery could not circumvent this process by raising arguments during the discovery process or by serving a notice of intervention, and the respondent could not grant that jurisdiction by deeds or by consent. Since McCreery was simply an intervenor, he could not raise issues not argued by the parties.

(2) The discretionary benefit exception set out in paragraph 3(l) did not apply. There is nothing discretionary about who receives a pension benefit under the MPRA Act. If the two requirements are met i.e. the MP is retired, and he or she had six years of service, then a pension benefit is payable.

(3) The Minister had no discretion to refuse to disclose information that was publicly available or whose release was consented to. The requested information was public knowledge within the meaning of paragraph 19(2)(b). A person may visit the Library of Parliament and request the Canadian Directory of Parliament, which is a list of all former members of Parliament with the day they were first elected. That permission is needed to use the Library of Parliament does not detract from the public availability of the requested information. Moreover, the requested information may be gleaned from other sources. The very small number of MPs who purchased back their prior years of service was not, however, publicly available information.

The release of roughly one third of the requested information has been consented to.

There is no purpose to be served by interpreting paragraphs 19(2)(a) and (b) as discretionary. The purpose of paragraphs 19(2)(a) and (b) is to be directive. If the interested party consents to the release of information, or if information is in the public domain, then the head of a government institution is directed to disclose that information.

(4) Information which was not publicly available or which had not been the subject of a consent to release should also be disclosed since the public interest outweighed the unsupported claim to a private interest. The public interest in the requested information was to assist the public in assessing the fairness of the current pension scheme. The expectation of privacy in this case was diminished because the MPRA Act was enacted by MPs, who are accountable to the public, exclusively for their own benefit. Also a very small number of names was involved so that the public interest far outweighed whatever privacy interest there may have been.

Furthermore, the Minister did not balance the competing interests as required by the Act. Giving the benefit of the doubt does not evince a weighing of competing interests. The Minister accepted without question the legal advice. There was no evidence indicating how the Minister arrived at his decision.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1, ss. 2(1), 3 “government institution”, 4(1)(b ), 19, 41, 42, 48, 53(1).

An Act to amend the Members of Parliament Retiring Allowances Act and to provide for the continuation of a certain provision, S.C. 1995, c. 30.

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.

An Act to make provision for the retirement of members of the Senate, S.C. 1965, c. 4.

Federal Court Rules, C.R.C., c. 663, RR. 319 (as am. by SOR/88-221, s. 4), 321.1 (as enacted idem, s. 7; 92-43, s. 4), 1611 (as enacted idem, s. 19).

Members of Parliament Retiring Allowances Act, R.S.C., 1985, c. M-5.

Members of Parliament Retiring Allowances Act (The), S.C. 1952, c. 45.

Privacy Act, R.S.C., 1985, c. P-21, ss. 3 “personal information”, 7, 8, 26.

CASES JUDICIALLY CONSIDERED

APPLIED:

Dagg v. Canada (Minister of Finance), [1995] 3 F.C. 199 (1995), 124 D.L.R. (4th) 553; 181 N.R. 139 (C.A.); Information Commissioner (Canada) v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 63 (1986), 11 C.P.R. (3d) 81; 5 F.T.R. 287 (T.D.); Canadian Assn. of Regulated Importers v. Canada (Attorney General), [1994] 2 F.C. 247 (1994), 17 Admin. L.R. (2d) 121; 164 N.R. 342 (C.A.).

DISTINGUISHED:

Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (1995), 102 F.T.R. 30 (T.D.); Sutherland v. Canada (Minister of Indian and Northern Affairs), [1994] 3 F.C. 527 (1994), 115 D.L.R. (4th) 265; 77 F.T.R. 241 (T.D.); Terry v. Canada (Minister of National Defence) (1994), 30 Admin. L.R. (2d) 122; 86 F.T.R. 266 (F.C.T.D.).

CONSIDERED:

Kelly v. Canada (Solicitor General) (1992), 6 Admin. L.R. (2d) 54; 53 F.T.R. 147 (F.C.T.D.); affd (1993), 13 Admin. L.R. (2d) 304; 154 N.R. 319 (F.C.A.).

REFERRED TO:

Al Yamani v. Canada (Solicitor General), [1996] 1 F.C. 174 (1995), 129 D.L.R. (4th) 226; 32 C.R.R. (2d) 295; 103 F.T.R. 105; 31 Imm. L.R. (2d) 191 (T.D.); International Fund for Animal Welfare, Inc. v. Canada, [1988] 3 F.C. 590 (1988), 83 N.R. 301 (C.A.); Grand Council of the Crees (of Quebec) v. Canada (Minister of External Affairs and International Trade), [1996] F.C.J. No. 903 (T.D.) (QL).

APPLICATION for judicial review of the Minister’s refusal to disclose the names of former MPs in receipt of pension benefits pursuant to the Members of Parliament Retiring Allowances Act since it was enacted in 1952. Application allowed.

COUNSEL:

Daniel Brunet for applicant.

Terrence Joyce for respondent.

APPEARANCE:

Matthew McCreery on his own behalf.

SOLICITORS:

Office of the Information Commissioner of Canada for the applicant.

Attorney General of Canada for respondent.

ADDED PARTY ON HIS OWN BEHALF:

Matthew McCreery.

The following are the reasons for order rendered in English by

Richard J.: This is an application by the Information Commissioner pursuant to section 41 of the Access to Information Act,[1] (the Access Act), for a review of the decision by the respondent Minister to withhold records in his control relating to the names of former members of Parliament in receipt of pension benefits pursuant to the Members of Parliament Retiring Allowances Act,[2] (the MPRA Act), since it was enacted in 1952 [S.C. 1952, c. 45].

Legislative History

Under the MPRA Act, a member of Parliament (MP) who has six years of service and who is retired is entitled to a pension. An MP whose service has been interrupted may elect to direct his/her prior years of service toward the six-year requirement. For example, an MP who had two non-consecutive five-year terms of parliamentary service would be entitled to a pension under the MPRA Act if that MP elected to reinstate, or “buy-back”, the first term of service.

In 1965, the MPRA Act was amended to provide coverage for the members of the Senate of Canada [An Act to make provision for the retirement of members of the Senate, S.C. 1965, c. 4].

In 1995 [S.C. 1995, c. 30] the MPRA Act was again amended, after a federal election in which pensions were part of the public debate, to provide MPs, among other things, the option of donating their pension benefits as a gift to the Crown.

Background

On September 1, 1993, Matthew McCreery, a resident of Canada pursuant to paragraph 4(1)(b) of the Access Act, made an access request to the Department of Supply and Services seeking the following information:

1) As of September 1, 1993, the identity of every actual and eligible recipient of a retirement pension by or under the Members of Parliament Retiring Allowances Act since its original enactment;

2) In the case of actual recipients to whom pension payments have ceased, the total amount of the retirement pension that has been issued to each such recipient;

3) In the case of actual recipients to whom pension payments continue, the total amount of the retirement pension that has been issued to each such recipient as of September 1, 1993; and

4) For each actual recipient, the actual or true portion of the total amount of the retirement pension issued to each recipient that is attributable to any form of Government contribution, adjustment, or other pecuniary credit or expenditure.

Shortly after Mr. McCreery’s request was denied, he lodged a complaint with the Information Commissioner who, after his own investigation, sent the following letter to Mr. McCreery dated January 11, 1995:

With your consent, I am prepared to initiate, and bear the expenses of, a court proceeding pursuant to paragraph 42(1)(a) of the access law. A form is included on which you may record your consent should you decide to give it.

In coming to your decision about giving consent, you should be aware that I would be only asking the Federal court to order the release of the names of former MPs in receipt of pensions. I would not be seeking disclosure of all the information which you originally sought. Should you wish to have the Court consider whether all the information withheld from you should be disclosed, you must make application to the Court on your own, pursuant to section 41 or 42(2),[3] within 45 days of receiving this report.

Nature of the Application for Judicial Review

(1)       The Status of the Added Party

The first issue before me is the status of Mr. McCreery in this proceeding.

The Information Commissioner told Mr. McCreery that he could appear, pursuant to subsection 42(2) of the Access Act, as a party to the review, being the Information Commissioner’s application which, as explained by him, is a request for the disclosure only of the names of former MPs in receipt of pension payments. The letter stated that if Mr. McCreery wished to seek disclosure of all the information encompassed by his original request, then Mr. McCreery would have to file his own application for judicial review with this Court pursuant to section 41 of the Access Act.

The Information Commission filed the following originating notice of motion on March 3, 1995:

TAKE NOTICE that an application will be made by the Information Commissioner of Canada, pursuant to paragraph 42(1)(a) of the Access to Information Act, R.S.C. 1985, c. A-1 (the Act) before the Federal Court at Ottawa, at a date to be fixed by the Court upon motion for directions to be followed by the parties.

The applicant seeks a review of the refusal of the respondent to disclose some of the information contained in records requested under the Act by the above-mentioned individual (the requestor).

The applicant requests an order pursuant to s. 49 of the Act directing the respondent to disclose to the requestor the records or portions thereof which the applicant concluded pursuant to s. 37 of the Act, do not qualify for exemption from disclosure under the provisions relied upon by the respondent, being: section 19 of the Act. In particular, the applicant requests an order directing the respondent to disclose to the requestor the names of former Members of Parliament in receipt of benefits under the Members of Parliament Retiring Allowances Act [R.S., 1985 c. M-5; 1992, c. 46, s. 81] (the “MPRA act”). This information is hereinafter referred to as the `disputed information’.

Mr. McCreery elected to be made a party to the applicant’s judicial review pursuant to subsection 42(2) of the Access Act, and filed a notice of intervention on March 24, 1995. However, the notice of intervention included the following paragraphs:

AND FURTHER TAKE NOTICE that in addition to the issues raised by the Information Commissioner of Canada, the added party will raise the following issues:

— the issue of the amounts of benefits for each former MP recipients.

Mr. McCreery raised the issue of the benefit amounts again during the discovery process leading up to this judicial review causing some confusion amongst the parties. When counsel for the respondent was asked whether the amounts received by pension recipients as well as their names were the issues before the Court, he agreed and sought leave to file further affidavit evidence in support of the Minister’s decision to withhold information concerning the amounts.

In order to clarify the issues before me, I asked counsel for the applicant what the Information Commissioner was seeking. Counsel stated that the Information Commissioner sought only the release of the names of former MPs in receipt of pension payments under the MPRA Act as of the date of Mr. McCreery’s initial request, September 1, 1993.

(2)       Jurisdiction to Hear Issues not Raised by the Applicant

Counsel for the respondent questioned the Court’s jurisdiction to hear Mr. McCreery on the issue of the amount of the pension benefits; notwithstanding his former statements and his application to seek leave to file further affidavit evidence on the subject. Counsel for the respondent argued that neither his words nor his actions could confer jurisdiction on this Court to hear Mr. McCreery on the amounts of the benefits if that jurisdiction did not exist before. I asked for written submissions on this matter.

Pursuant to section 3 and paragraph 42(1)(a) of the Access Act, jurisdiction to review a refusal of disclosure is given to this Court by filing an originating notice of motion as required by Rule 319 of the Federal Court Rules [C.R.C., c. 663 (as am. by SOR/88-221, s. 4)]. Rule 319 requires that an originating notice of motion set out the precise relief sought. In addition to Rule 319, an applicant must also satisfy Rule 321.1 [as enacted idem, s. 7; 92-43, s. 4] which sets out the general procedure to be followed in originating applications, particularly with respect to the filing of the parties’ records.

Since the purpose of Rules 319[4] and 321.1[5] is to commence a judicial review, they are detailed in their requirements so that the issues are clearly set out between the parties and before the Court so that the judicial review may proceed smoothly and fairly with opposing parties fully apprised of the issues in advance of the hearing.

The Information Commissioner made its application to the Court pursuant to section 3 and paragraph 42(1)(a) of the Access Act and filed an originating notice of motion pursuant to Rule 319 of the Federal Court Rules. On the other hand, Mr. McCreery made an application pursuant to subsection 42(2) and filed a notice of intervention pursuant to Federal Court Rule 1611 [as enacted by SOR/92-43, s. 19].[6]

The purpose of Rule 1611 is to grant a person intervenor status in a judicial review proceeding and to allow that person to address the Court on an issue that is already before it. Subsection 42(2) of the Access Act gives a person a right to appear as a party specifically to the review. In this case, the review is that which had been filed in this Court pursuant to section 3 and paragraph 42(1)(a) and in accordance with Rules 319 and 321.1; namely, the Information Commissioner’s application for the release of names of former MPs in receipt of pension payments under the MPRA Act as of September 1, 1993, the date of the original request.

Rules 319 and 321.1 set out the criteria that must be met to grant this Court jurisdiction to hear issues raised in an application for judicial review. Mr. McCreery cannot circumvent this process by raising arguments during the discovery process or by serving a notice of intervention, nor can respondent’s counsel grant that jurisdiction to this Court by deeds or by consent. It is an elementary rule of administrative law that parties cannot consent to the jurisdiction of a court if that court does not already possess the jurisdiction to hear the matter.

Since Mr. McCreery is simply an intervenor in this matter, I note the well-established principle that an intervenor cannot raise issues not argued by the parties.[7]

(3)       The Meaning to be Given to the Abbreviation “MP”

Finally, there was some discussion as to whether the use of the abbreviation “MP” includes Senators, so that Mr. McCreery could be heard on the issue of the names of Senators in receipt of pension benefits, since the MPRA Act was amended in 1965 to include members of the Upper Chamber, and since a cross-examination of one of the affiants revealed that there are six Senators whose records found their way into the hands of the respondent Minister. It is clear from the record that the references by the Information Commissioner to MPs is intended to designate members of the House of Commons and not members of the Senate. Indeed, the Access Act does not apply to the Senate.[8]

(4)       Conclusion on Nature of the Application

Therefore, the application before the Court is for the release of the names of former MPs, that is, members of the House of Commons, in receipt of pension payments under the MPRA Act as of September 1, 1993 (the requested information).

Having determined the nature of the application before me, I turn now to this Court’s review of the Minister’s decision not to disclose the requested information.

Section 19: The Personal Information Exemption

The Minister claims that the requested information is exempted from disclosure pursuant to section 19, the personal information exemption of the Access Act.[9]

The operation of section 19 of the Access Act was most recently canvassed in Canadian Jewish Congress v. Canada (Minister of Employment and Immigration)[10] and followed in Grand Council of the Crees (of Quebec) v. Canada (Minister of External Affairs and International Trade).[11] The first step is to determine whether the Minister properly found that the requested information was exempted from disclosure pursuant to the personal information exemption.

Paragraphs 3(a) through 3(i) of the Privacy Act [R.S.C., 1985, c. P-21] broadly define “personal information” as being “information about an identifiable individual that is recorded in any form”. Paragraphs 3(j) through 3(m) provide exceptions to what is included in the definition of “personal information” for the purposes of sections 7, 8 and 26 of the Privacy Act and section 19 of the Access Act. As explained by Chief Justice Isaac in the Dagg v. Canada (Minister of Finance)[12] case:

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 … [etc.[13]] 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.

The initial burden of proof rests with the party claiming the personal information exemption pursuant to section 48 of the Access Act. Once that has been satisfied, the onus shifts to the applicant to establish that one of the four exceptions set out in paragraphs 3(j) through 3(m) of the Privacy Act apply.

In this case, the applicant and the respondent agree that the requested information is exempted from disclosure as it qualifies as personal information under the Access Act. However, Mr. McCreery argued that the requested information should be disclosed as it fits into the “discretionary benefit” exception set out in paragraph 3(l)[14] and the people who are benefited by the MPRA Act are also the ones who control it.

The MPRA Act entitles all retired MPs who meet the six-year requirement to a pension. Thus, a recipient under the MPRA Act is no longer an MP, but a private citizen who, like all other Canadian citizens, is entitled to the pension programme he or she has paid into. There is nothing discretionary about who receives a pension benefit under the MPRA Act. There are two requirements an MP must meet before he or she can receive a pension: he or she must be retired, and he or she must have six years of service. If those two qualifications are met, then a pension benefit is issued. If those two qualifications are not met, then no pension benefit is received. Accordingly, the discretionary benefit exception set out in paragraph 3(l) of the Privacy Act does not apply and the requested information is personal information which is excluded from disclosure.

The next step is to look at subsection 19(2), which provides, that notwithstanding the information may be properly withheld under the Access Act, the Minister may nevertheless disclose the requested information if it falls within the exceptions set out in paragraphs 19(2)(a), (b) or (c) of the Access Act.

Public Availability and Consent to Disclosure of the Requested Information

The applicant submits that the requested information is “publicly available”, pursuant to paragraph 19(2)(b) of the Access Act, and ought to be disclosed, except for those MPs who did not have six years of continuous service or who made a gift of their pension benefit to the Crown. The applicant concedes that for this latter category of names, there is no public information available to indicate which MPs purchased their previous years of service, or which MPs made a gift of their pension benefit to the Crown. I note that the issue of which MPs made Crown gifts out of their pension benefits does not arise here since that amendment was made in 1995 and Mr. McCreery’s information request is dated 1993.

In relation to the stated facts, the Information Commissioner wrote to the Deputy Minister of the Department of Supply and Services on February 16, 1995 stating that the requested information was publicly available for the following reason:

Anyone, even a grade school child of average intelligence, could go to a library, consult the Parliamentary Guide and compile this information with minimal effort. It is a simple matter to determine what former members have served for six years or more.

The respondent disagreed on the basis that the requested information does not exist in a complete and final form but needs to be collated from several sources.

I find that the Minister erred in determining that the requested information is not a matter of public knowledge. A person may visit the Library of Parliament and request the Canadian Directory of Parliament, which is a list of all former members of Parliament with the day they were first elected. The fact that a person needs permission to use the Library of Parliament, as submitted by the respondent, does not detract from the public availability of the requested information. Moreover, the requested information may be gleaned from other sources, such as a Who’s Who of Canada, old copies of newspapers, or Elections Canada which is required by law to keep the results of all federal elections.

Thus, I find that the requested information is public knowledge within the meaning of paragraph 19(2)(b). However, I find that the very small number of MPs who purchased back their prior years of service is not publicly available information. These make up a very small number, which the Minister has asked not to be disclosed for reasons which, frankly, escape me as I do not see what privacy interests there can be in the number itself. The government records of these MPs is personal information in the control of the respondent Minister, but there is no information available to the public to indicate who these MPs are. Accordingly, whether the names of these few MPs ought to be released will have to be determined under paragraph 19(2)(c) and the public interest override provision in the Privacy Act.

The applicant also raises the issue of consent pursuant to paragraph 19(2)(a) of the Access Act. The release of the requested information has been, in part, consented to, since, as part of its investigation into Mr. McCreery’s information request, the Minister sent out a total of 265 letters dated February 23, 1995 to former MPs asking for consent to disclose their names. I find that those who consented to the release of the information did so in a fully informed manner.

The confidential evidence filed before me[15] indicates that as of the date of the original information request, September 1, 1993, there were 265 people receiving pension benefits under the MPRA Act. This number includes information which is not the subject of this application, such as the names of surviving spouses in receipt of a pension benefits under the MPRA Act, so that the actual number of names in question is less than 265. As of October 27, 1995, 88 former MPs refused to sign a release form, 78 signed, and 99 failed to reply, so that the release of roughly a third of the requested information has been consented to, one consent coming from an MP who purchased back his/her previous years of service.

Analysis of Subsection 19(2)

In Canadian Jewish Congress v. Canada (Minister of Employment and Immigration)[16] Deputy Justice Heald stated the following, at pages 282-283, 286-287:

Subsection 19(2) provides that if the personal information falls within one of the three exceptions listed in paragraphs 19(2)(a), (b) or (c), then the head of the institution may disclose the record. Accordingly, it follows that the exemption provided for by section 19 operates as a discretionary exemption in circumstances to which the exceptions in paragraphs 19(2)(a), (b) and (c) apply….

…

Parliament chose to use the word “may” in subsection 19(2), a term which has been interpreted as imposing a discretion. Parliament used the word “shall” in various other provisions throughout the Act, a term which has been interpreted as imposing a mandatory obligation. If it were intended that subsection 19(2) operate so as to impose a mandatory obligation on the head of the institution to disclose the information, it is my opinion that the appropriate wording would have been employed.

…

Accordingly, I conclude that when properly interpreted, subsection 19(2) sets out a discretionary exemption from disclosure and not a mandatory exemption.

Heald D.J. noted that, in Kelly v. Canada (Solicitor General),[17] Mr. Justice Strayer held that in the matter of a review of a Ministerial discretion the Court must only consider whether or not the discretion was properly exercised, but should not itself attempt to exercise the discretion de novo. Consequently, Heald D.J. sent the matter back for redetermination.

After conducting my own survey of the jurisprudence, I reach a different conclusion with respect to whether paragraphs 19(2)(a) and (b) are discretionary.

The issue of whether paragraphs 19(2)(a), (b) or (c) are discretionary was not properly before Mr. Justice Rothstein in Sutherland v. Canada (Minister of Indian and Northern Affairs).[18] In that case, Mr. Justice Rothstein concluded at page 545 that the “personal information” in question did not come within subsection 8(2) of the Privacy Act. Thus, he held that paragraph 19(2)(c) of the Access Act was not applicable, and that subsection 19(1) operated to require a head of a government institution to withhold the requested information. Whether the “personal information” could be excepted pursuant to paragraph 19(2)(a) or (b) was not discussed.

Similarly, the issue of whether subsection 19(2) is discretionary was not properly before Mr. Justice Rouleau in Terry v. Canada (Minister of National Defence).[19] Here too the requested documents were held to be “personal information” and subsequently did not qualify for disclosure pursuant to paragraphs 19(2)(b) or (c), as argued by the applicant. The possibility of disclosing the documents pursuant to paragraph 19(2)(a) was not raised in that case.

And, while Heald D.J. concluded in Canadian Jewish Congress (supra) that subsection 19(2) is discretionary, his remarks are strictly confined to paragraph 19(2)(c) as he skipped over a discussion of whether the impugned information was publicly available pursuant to paragraph 19(2)(b) and paragraph 19(2)(a) was never raised in that case.

By contrast, in the case before this Court, the impugned information has been found to be in part publicly available pursuant to paragraph 19(2)(b) and the disclosure of some of the requested information has been consented to pursuant to paragraph 19(2)(a). Thus, in this case, parts of the requested information satisfy one of the three conditions enumerated in paragraphs 19(2)(a), (b) or (c), unlike all previous cases concerning the interpretation of subsection 19(2) where the impugned information failed to satisfy one of these three conditions.

In Information Commissioner (Canada) v. Canada (Minister of Employment and Immigration),[20] Jerome A.C.J. rejected counsel’s argument that subsection 19(2) provided the head of a government institution with a discretion not to disclose the personal information even though the information had been consented to be released pursuant to paragraph 19(2)(a). He did so for two reasons. First, at page 67, the Associate Chief Justice stated the following:

In terms of statutory interpretation, when legislators intend to create an obligation to do something, they use the word “shall”. When they intend instead to establish a discretion or a right to do it, they use the word “may”. Had the legislators intended here to repose residual discretion in the head of the government institution not to disclose information, even though the conditions of section 19(2) had been met, that appropriate and precise language would have been used …. The language chosen expresses the intent to establish a discretion to release personal information under certain circumstances. Those conditions having been fulfilled, it becomes tantamount to an obligation upon the head of the government institution to do so, especially where the purpose for which the statute was enacted is, as here, to create a right of access in the public.

Jerome A.C.J.’s second reason is found on page 69.

To repeat, the purpose of the Access to Information Act is to codify the right of access to information held by the government. It is not to codify the government’s right of refusal. Access should be the normal course. Exemptions should be exceptional and must be confined to those specifically set out in the statute.

I find myself in agreement with the Associate Chief Justice in this matter. The purpose of the Act not only calls for “a right of access to information”, but states “that necessary exceptions to the right of access should be limited and specific.”[21] In this case, it is not clear why Parliament in these circumstances would grant a residual discretion to withhold information. Indeed, why should the Minister have an overriding concern in information that is in the public domain and that has been consented to be released? There is no public policy objective to be served by giving a discretion to refuse to disclose information which is publicly available or which has been consented to. Therefore, there is no purpose to be served by interpreting paragraphs 19(2)(a) and (b) as discretionary. The Access Act is replete with exemptions. Information from foreign states, commercial information and national security are just some of the exemptions contained in the Access Act. I see no reason to add one more.

Conversely, if subsection 19(2) is discretionary then why would the legislators use the superfluous language in paragraphs (a) and (b)? Why not just say the head of the government institution may disclose any record if the disclosure is in accordance with the public interest? Indeed, if paragraphs 19(2)(a) and (b) are discretionary then why discuss them at all? For example, the decision in Canadian Jewish Congress (supra) proceeded directly to a discussion of paragraph 19(2)(c), ignoring counsel’s arguments on whether the information in that case was in the public domain, thereby rendering paragraph 19(2)(b) ineffective. Parliament must have intended a useful purpose by including paragraphs 19(2)(a) and (b).

I find the purpose of these two paragraphs to be directive. If the interested party consents to the release of information, or if information is in the public domain, then the head of a government institution is directed to disclose that information.

Does the Public Interest Override the Private Interest?

Paragraph 19(2)(c) invests the head of a government institution with a discretion to disclose a record requested under the Access Act if the disclosure is made in accordance with section 8 of the Privacy Act. The applicant submits that I need only turn my attention to the “public interest override” contained in subparagraph 8(2)(m )(i) of the Privacy Act[22] if an MP’s name is not publicly available and if the MP did not consent to the release of his or her name. For the reasons given above, I would accept this submission. However, if I am wrong in my analysis of subsection 19(2) and the public availability or consent to release of the information, the following reasoning should apply to all of the requested information.

For the names of those MPs who purchased back their previous years of service, the applicant submits that the names ought to be disclosed as the public interest in this information outweighs the private interest in preserving confidentiality, pursuant to subparagraph 8(2)(m)(i) of the Privacy Act. The respondent submits that the Minister properly exercised his discretion under subparagraph 8(2)(m)(i) of the Privacy Act and determined that the public interest in the requested information did not override the private interests to justify releasing any parts of the requested information.

The Information Commissioner stated, in a letter to the Deputy Minister dated January 11, 1995, that the public interest in the requested information is the following:

It seems to me that there is a strong public interest in the disclosure of this disputed information. The current debate over MPs pensions in the media and on the floor of the House of Commons is evidence that there is more than mere public curiosity at play here. The disclosure of the names of pension recipients may assist members of the public in assessing the fairness of the current pension scheme.

The legislation seeks to strike a balance between the competing interests of a person’s entitlement to a reasonable expectation of privacy and the public interest in the disclosure of government information. In striking this balance the context in which the interests are balanced will vary. For example, the MPRA Act, unlike other federal legislation, is not one of general application but was enacted by MPs, who are accountable to the public, exclusively for their own benefit so that the expectation of privacy in the instant case is diminished if the fairness of the legislation is to be known.

Additionally, we are dealing with a very small number of names so that the public interest far outweighs what privacy interests there may be in withholding the identity of these MPs, let alone the simple matter of the number of MPs who purchased back their prior years of service.

What were the considerations that lead to the Minister’s decision to withhold the requested information under the public interest override? The respondent avers to legal advice it received from the Department of Justice as the basis for its refusing to disclose the requested information. That legal advice was filed as part of the confidential record and the relevant aspect of it was read in open Court with the consent of the respondent’s counsel. The disclosed legal advice states the following:

Therefore, given the doubts about the public availability of this information, we must, as we always do in cases involving personal information, give the benefit of the doubt in favour of protecting the information.

Indeed, this legal advice is referred to in a February 25, 1994 correspondence to Mr. McCreery from the Minister’s designate outlining the Minister’s reasons for reversing himself on whether to disclose the names of the pension recipients.

On November 10, 1993, the department advised you that most of the information you were seeking qualified for exemption under section 19(1)”Personal Information of the Access to Information Act , except for the name of the actual member of parliament in receipt of a pension. Our department was obligated to review the disclosure of the name and sought legal advice from the Department of Justice. Based on this advice our department has determined that the list of names of recipients also qualifies for exemption under section 19 of the Act.

The Access Act requires the Minister to balance the competing interests. He did not do so in this case. Giving the “benefit of the doubt" does not evince a weighing of the competing interests. The fact that the requested information deals with persons does not itself suffice to make the privacy interest paramount. What the memorandum indicates is that the Minister never addressed his mind to weighing the competing interests; rather, the Minister accepted, without question, the legal advice submitted to him.

In Canadian Assn. of Regulated Importers v. Canada (Attorney General)[23] the Court of Appeal held that a court may interfere with a discretion when the policy decision is based entirely or predominantly on irrelevant factors or when there is an absence of evidence to support the policy decision.

In the instant case, there is no evidence indicating how the Minister arrived at his decision. I have before me only assertions that the Minister weighed the conflicting policy considerations and a memorandum advising him to err on the side of privacy. Assertions do not tell the story of how the Minister arrived at his decision, and the legal advice indicates a complete absence of policy consideration.

Consequently, I find that the head of the government institution improperly exercised his discretion by withholding the requested information pursuant to the public interest override contained in subparagraph 8(2)(m)(i) of the Privacy Act and paragraph 19(2)(c) of the Access Act.

Conclusion

For the above reasons, I conclude that the Minister erred in deciding not to disclose the requested information, that being the names of former members of the House of Commons in receipt of pension payments under the MPRA Act as of September 1, 1993.

The requested information is private information which is prima facie exempted from disclosure pursuant to subsection 19(1) of the Access Act. However, much of the information is publicly available or its release has been consented to, pursuant to paragraphs 19(2)(a) and (b) and therefore the Minister has no discretion to refuse to release it. That information which is not publicly available or which has not been the subject of a consent to release ought also to be disclosed since the public interest outweighs the unsupported claim to a private interest, pursuant to paragraph 19(2)(c) of the Access Act and subparagraph 8(2)(m)(i) of the Privacy Act.

Accordingly, I order that the added party’s additional issue concerning the amounts of benefits raised in his notice of intervention dated March 24, 1995, is rejected.

I also order that the Minister disclose the names of all former members of the House of Commons, in receipt of pension payments under the Members of Parliament Retiring Allowances Act who have served six years consecutively as of September 1, 1993, and that the Minister disclose the name of any former member of the House of Commons, in receipt of pension payments under the Members of Parliament Retiring Allowances Act who purchased back his/her prior years of service to meet the six-year requirement as of September 1, 1993.

Costs will follow the events pursuant to subsection 53(1)[24] of the Access Act.

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