T-2783-86
Information Commissioner of Canada (Applicant)
v.
Solicitor General of Canada (Respondent)
INDEXED AS: CANADA (INFORMATION COMMISSIONER) V.
CANADA (SOLICITOR GENERAL)
Trial Division, Jerome A.C.J.—Ottawa, December
3, 1987 and May 4, 1988.
Access to information — Application for review by Informa
tion Commissioner under s. 42(1)(a) Access to Information Act
— Solicitor General refused to disclose portions of report on
Food Services Operations at Saskatoon's Regional Psychiatric
Centre — Evaluations of employees' performance, training or
competence must be deleted as personal information under
Act, s. 19.
Privacy — Definition of `personal information" in s. 3(g)
and (j) of Privacy Act — Releasable information excluded by
s. 3(j) generally matters of objective facts relating to govern
ment employees — No indication qualitative evaluations of
employees' performance intended to be made public — Dis
connected phrases not to be picked out from otherwise exempt
material and released.
This is an application by the Information Commissioner,
pursuant to paragraph 42(1)(a) of the Access to Information
Act. The Solicitor General refused to disclose certain portions
of a report on the Food Services Operations at the Regional
Psychiatric Centre in Saskatoon on the basis that the opinions
about the individuals described therein were exempt from
disclosure under section 19 of the Access to Information Act.
That section exempts from disclosure information falling within
the definition of personal information set out in section 3 of the
Privacy Act. The exempted portions contained opinions on the
adequacy of the training and experience of the employees,
factual incidents and an assessment of actual functions of
individuals compared with their job descriptions. The Informa
tion Commissioner submitted that the opinions are excluded
from the definition of personal information under paragraph
3(j), as they concerned positions and functions of government
employees.
Held, the application should be dismissed.
In determining whether to release personal information, the
principles of neither the Privacy Act nor the Access to Infor
mation Act are to be given pre-eminence. The publicly-funded
report of a publicly-operated institution ought to be available to
the public unless protected by a specific exemption. The intent
of subsection 19(1) of the Access to Information Act, and its
incorporation of section 3 of the Privacy Act is to protect the
privacy of individuals who may be mentioned in otherwise
releasable material. Except for subparagraph 3(j)(v) (the
individual's own views given in the course of employment) all
examples of releasable employment information are matters of
objective fact. The disputed information does not relate to the
employees' positions or functions, but to their performance. It
would be unjust if the details of an employee's job performance
were considered public information simply because that person
is employed by the government. Accordingly, the study could
be disclosed, but opinions as to the training, personality, experi
ence or competence of individuals were to be deleted.
These statutes do not mandate a surgical process whereby
disconnected phrases not containing exempt information are
picked out of otherwise exempt material and released. There
were two objections to such procedure: (1) the resulting docu
ment could be misleading as the information contained therein
is taken out of context and (2) the information given might
provide clues concerning the deleted material. It was better that
the entire passage be deleted in order to protect the individual's
privacy.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, S.C. 1980-81-82-83, c. 111,
Schedule I, ss. 2. 19(1), 25, 42(1)(a).
Privacy Act, S.C. 1980-81-82-83, c. 111, Schedule II,
s. 3.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Robertson and Minister of Employment and Immi
gration (1987), 42 D.L.R. (4th) 552; 13 F.T.R. 120
(F.C.T.D.).
COUNSEL:
M. L. Phelan, Patricia J. Wilson, Paul B.
Tetro for applicant.
Barbara A. Mcisaac for respondent.
SOLICITORS:
Osler, Hoskin & Harcourt, Ottawa, for
applicant.
Deputy Attorney-General of Canada, for
respondent.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This is an application pursuant
to paragraph 42(1)(a) of the Access to Informa
tion Act [S.C. 1980-81-82-83, c. 111, Schedule I],
filed December 23, 1986. The Information Com
missioner seeks a review of the respondent's refus
al to disclose certain portions of a report on the
Food Services Operations at the Regional Psychia
tric Centre in Saskatoon.
That record was requested on February 15,
1985. On May 7, 1985 the requestor received a
copy of the report with a large number of portions
deleted under three of the exempting sections of
the Act. The requestor complained to the Informa
tion Commissioner, who conducted an investiga
tion. As a result of the investigation, the respond
ent agreed to release all of the report except those
portions which had been exempted under subsec
tion 19(1). The Information Commissioner formal
ly recommended to the respondent on September
15, 1985, that the remaining portions of the record
be released as they were not properly exempted
under subsection 19(1). The Solicitor General
refused to release the deleted portions. The
application under section 42 came on for hearing
before me on December 3, 1987. Oral judgment
was rendered March 9, 1988.
The statutory provisions relevant to this applica
tion are subsection 19(1) of the Access to Infor
mation Act and section 3 of the Privacy Act [S.C.
1980-81-82-83, c. 111, Schedule II]:
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 sec
tion 3 of the Privacy Act.
3....
"personal information" means information about an identifi
able individual that is recorded in any form including, with
out restricting the generality of the foregoing,
(a) information relating to the race, national or ethnic
origin, colour, religion, age or marital status of the
individual,
(b) information relating to the education or the medical,
criminal or employment history of the individual or infor
mation relating to financial transactions in which the
individual has been involved,
(c) any identifying number, symbol or other particular
assigned to the individual,
(d) the address, fingerprints or blood type of the
individual,
(e) the personal opinions or views of the individual except
where they are about another individual or about a pro
posal for a grant, an award or a prize to be made to
another individual by a government institution or a part of
a government institution specified in the regulations,
(J) correspondence sent to a government institution by the
individual that is implicitly or explicitly of a private or
confidential nature, and replies to such correspondence
that would reveal the contents of the original correspond
ence,
(g) the views or opinions of another individual about the
individual,
(h) the views or opinions of another individual about a
proposal for a grant, an award or a prize to be made to the
individual by an institution or a part of an institution
referred to in paragraph (e), but excluding the name of the
other individual where it appears with the views or opin
ions of the other individual, and
(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 sections 7, 8 and 26 and section 19 of
the Access to Information Act, does not include
(j) information about an individual who is or was an
officer or employee of a government institution that relates
to the position or functions of the individual including,
(i) the fact that the individual is or was an officer or
employee of the government institution,
(ii) the title, business address and telephone number of
the individual,
(iii) the classification, salary range and responsibilities
of the position held by the individual,
(iv) the name of the individual on a document prepared
by the individual in the course of employment, and
(v) the personal opinions or views of the individual
given in the course of employment,
(k) information about an individual who is or was per
forming services under contract for a government institu
tion that relates to the services performed, including the
terms of the contract, the name of the individual and the
opinions or views of the individual given in the course of
the performance of such services,
(1) information relating to any discretionary benefit of a
financial nature, including the granting of a licence or
permit, conferred on an individual, including the name of
the individual and the exact nature of the benefit, and
(m) information about an individual who has been dead
for more than twenty years;
The basic disagreement in this application stems
from the definition of personal information in
paragraphs 3(g) and (j). The Solicitor General
maintains that certain information in the report is
exempt as constituting the views or opinions of
another individual (the author) about the individu
als described. The Information Commissioner sub
mits that all this information is excluded from the
definition of personal information as it concerns
the positions and functions of government
employees.
The purposes of the report in question are
outlined in the affidavit material. The author was
commissioned to assess the Food Services Opera
tion at the Psychiatric Unit and to comment on job
descriptions, food consumption and waste and cost
control procedures. All employees of the unit are
government employees. Counsel for the applicant
characterizes the deleted portions of the report as
follows:
(i) the adequacy of the training or experience of individuals
in relation to the actual requirements of the position
filled;
Affidavit of Fred G. Bollman dated December 23, 1986,
Exhibit "B", pages 6, 7, 10, 11
(ii) the inadequacy of support or training provided to super
visory personnel in order to assist in the effectual carry
ing out of their functions;
pages 7, 11
(iii) factual incidents relating to food control and operations;
pages 6, 7, 8, 9, 11
(iv) an assessment of actual functions of individuals filling
given positions compared with the job descriptions for
that position;
pages 8, 9, 11.
The issue is whether the information, as thus
described, constitutes personal information within
the meaning of the two statutes. The applicant
argues that the relevant provisions must be inter
preted in light of the purpose of the Access to
Information Act. As set out in section 2 of the
statute, that purpose is to extend the laws of
Canada to provide a right of access to information
under government control. Necessary exemptions
are to be limited and specific. With that approach
in mind, the applicant states that the Court must
narrowly interpret those provisions which exempt
information from access. In this case, it is argued,
that requires giving the definition of personal
information in paragraphs 3(a) to (i) a narrow
scope and the exceptions to that definition in
paragraphs 3(j) to (n) a broad scope. Although
those provisions are part of the Privacy Act in this
case they are being applied through subsection
19(1) of the Access to Information Act, and it is
the principles of the latter which must apply.
Turning to the specifics of the document
requested, it is the applicant's position that the
intent of paragraph 3(j) is to ensure that informa
tion about how government employees carry out
their responsibilities is disclosed. Only information
that is truly personal or private should be with
held. The examples given of the latter are apprais
als and evaluations of individuals used for person
nel purposes and which chart an employee's career
progress. It is claimed that there is no evidence the
report at issue here was ever used or intended for
such purposes. Instead, this report is a "snapshot"
assessment of the functions of the personnel
involved and recommendations for structural
changes. It is maintained that such material was
intended to be made available.
The respondent, of course, takes the opposite
position. He maintains that it is the Privacy Act
and its purpose which must govern statutory inter
pretation in this case. It is a section of that statute
which is being interpreted, not a provision of the
Access to Information Act. The purpose of the
Privacy Act, as set out in section 2, is to protect
the privacy of individuals with respect to personal
information about themselves. It is with that goal
in mind that the provisions of section 3 must be
seen.
It is submitted that this is personal information
by the opening words of section 3 because it is
information about identifiable individuals and by
paragraph 3(g) because it is the views or opinions
of another individual about them. The information
in the deleted sections does not relate to the
employees' positions or functions, but to their
performance in those positions. Unlike the specific
examples given in paragraph 3(j), the comments
are not objective facts about the person's position,
functions or "work product". A restrictive
approach to those terms is mandated by the pur
pose of the statute and the wording of the provi
sion. Material should not be exempted from the
definition of personal information except on clear
grounds.
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. Clear
ly, what Parliament intènded 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 person
al information. In Re Robertson and Minister of
Employment and Immigration (1987), 42 D.L.R.
(4th) 552; 13 F.T.R. 120 (F.C.T.D.), I considered
the purposes of both statutes in determining
whether the information sought required protec
tion from disclosure, [at pages 557 D.L.R.; 124
F.T.R.] :
The two main purposes of the Access to Information Act and
Privacy Act are to provide access to information under the
control of a government institution and to protect the privacy of
individuals with respect to personal information about them
selves. These principles do not appear to me to require protec
tion from disclosure for a submission made by a public body to
another public body about a publicly funded programme. The
issue is whether the Acts provide protection for an individual
who adds to such a public submission his own personal opinion
on the subject and his signature.
Similarly, in the present case, the report is the
product of a publicly-funded study of a publicly-
operated institution, and ought to be available to
the public, unless it is protected by one of the
specific exemptions in the Access to Information
Act. The intent of subsection 19(1), and its incor
poration of section 3 of the Privacy Act, is clearly
to protect the privacy or identity of individuals
who may be mentioned in otherwise releasable
material. I note that the definition of personal
information is deliberately broad. It is entirely
consistent with the great pains that have been
taken to safeguard individual identity.
The applicant argues that the effect of para
graph 3(j) of the Privacy Act is to create an
exception to this general rule of privacy where
government employees are concerned. I do not
agree. The specific examples of releasable employ
ment information listed in subparagraphs (i)
through (v), while not exhaustive, serve to illus
trate the sort of material the legislators had in
mind when they exempted "information ... that
relates to the position or functions of [government
employees] ". Except for subparagraph (v), (the
individual's own views or opinions given in the
course of employment), all the examples are mat-
ters of objective fact. There is no indication that
qualitative evaluations of an employee's perform
ance were ever intended to be made public. Indeed,
it would be most unjust if the details of an
employee's job performance were considered
public information simply because that person is in
the employ of the government.
I have therefore concluded that, while the Food
Services Study may be disclosed, the author's
opinions about specified individuals and their
training, personality, experience or competence
must be deleted as constituting personal informa
tion.
With this approach in mind, I have closely
reviewed the unexpurgated version of the report
which, pursuant to my order of April 16, 1987,
was filed in a sealed envelope. One of the consider
ations which influences me is that these statutes do
not, in my view, mandate a surgical process where
by disconnected phrases which do not, by them
selves, contain exempt information are picked out
of otherwise exempt material and released. There
are two problems with this kind of procedure.
First, the resulting document may be meaningless
or misleading as the information it contains is
taken totally out of context. Second, even if not
technically exempt, the remaining information
may provide clues to the content of the deleted
portions. Especially when dealing with personal
information, in my opinion, it is preferable to
delete an entire passage in order to protect the
privacy of the individual rather than disclosing
certain non-exempt words or phrases.
Indeed, Parliament seems to have intended that
severance of exempt and non-exempt portions be
attempted only when the result is a reasonable
fulfillment of the purposes of these statutes. Sec
tion 25 of the Access to Information Act, which
provides for severance, reads:
25, Notwithstanding any other provision of this Act, where a
request is made to a government institution for access to a
record that the head of the institution is authorized to refuse to
disclose under this Act by reason of information or other
material contained in the record, the head of the institution
shall disclose any part of the record that does not contain, and
can reasonably be severed from any part that contains, any
such information or material. [Emphasis added.]
Disconnected snippets of releasable information
taken from otherwise exempt passages are not, in
my view, reasonably severable.
In the result, I have determined that the dele
tions made by the Solicitor General's Office, while
perhaps broader than is strictly required by the
statutes, are nonetheless in keeping with the prin
ciples enunciated above. Indeed, in some places, a
clear effort has been made to disclose any informa
tion which could reasonably be released. Where I
would differ with the respondent is as to a few
isolated words which have been removed from
otherwise disclosable paragraphs. Their removal
would seem to be unnecessary in light of the
proper deletions which have been made in the
passages which appear before and after. There are
three examples of this problem on page 7 of the
report, but they are not significant enough to
warrant an order on my part. Counsel admitted at
the hearing that these small deletions were prob
ably made in error.
In all other respects, the respondent's treatment
of this information appears to me to be in keeping
with the requirements of the Access to Informa
tion Act and Privacy Act. For these reasons, there
fore, the application will be dismissed, with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.