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Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403

 

Michael A. Dagg                                                                                Appellant

 

v.

 

The  Minister of Finance                                                               Respondent

 

and

 

The Privacy Commissioner of Canada and

the Public Service Alliance of Canada                                              Interveners

 

Indexed as:  Dagg v. Canada (Minister of Finance)

 

File No.:  24786.

 

1997:  January 22; 1997:  June 26.

 

Present:  Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

 

on appeal from the federal court of appeal

 


Access to information -- Privacy ‑‑ Personal information ‑‑ Request made for sign‑in logs of government department ‑‑ Personal identifying features deleted from information ‑‑ Whether information should be disclosed ‑‑ Whether part of information can be withheld because “personal information” ‑‑ Access to Information Act, R.S.C., 1985, c. A‑1 , ss. 2 , 4 , 19(1) , (2) , 21(1) (b), 25 , 31 , 41 , 48 , 49 , 54  ‑‑ Privacy Act, R.S.C., 1985, c. P‑21 , ss. 2 , 3 (i), (j), 8(2) (m).

 

The appellant filed a request with the Department of Finance for copies of logs with the names, identification numbers and signatures of employees entering and leaving the workplace on weekends.  These logs were kept by security personnel for safety and security reasons but not for the purpose of verifying overtime claims.  The appellant intended to present this information to the union anticipating that the union would find it helpful in the collective bargaining process and that the union would as a consequence be disposed to retain his services.  The respondent disclosed the relevant logs but deleted the employees’ names, identification numbers and signatures on the ground that this information constituted personal information and was thus exempted from disclosure.  The appellant unsuccessfully sought a review by the Minister of this decision and filed a complaint with the Information Commissioner, arguing that deleted information should be disclosed by virtue of exceptions related to personal information in the Privacy Act .  The Federal Court, Trial Division, on a review of the Minister’s decision, found the information not to be personal but this decision was reversed on appeal.  At issue here is whether the information in the logs constitutes “personal information” within the meaning of s. 3  of the Privacy Act  and whether the Minister failed to exercise his discretion properly in refusing to disclose the requested information pursuant to s. 19(2) (c) of the Access to Information Act  and s. 8(2) (m)(i) of the Privacy Act .

 


Held (La Forest, L’Heureux‑Dubé, Gonthier and Major JJ. dissenting):  The appeal should be allowed.

 

Per Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ.:  Agreement was expressed with La Forest J.’s approach to interpreting the Access to Information Act  and the Privacy Act , particularly that they must be interpreted together.  La Forest J.’s general approach to the interpretation of s. 3  “personal information” (j) of the Privacy Act  (hereinafter s. 3 (j)) was also agreed with.

 

The number of hours spent at the workplace is information that is “related to” the position or function of the individual in that it permits a general assessment to be made of the amount of work required for a particular employee’s position or function.  For the same reason, the requested information is related to the “responsibilities of the position held by the individual” and falls under the specific exception set out at s. 3 (j)(iii) of the Privacy Act .  The information provides a general indication of the extent of the responsibilities inherent in the position.  There is neither a subjective aspect nor an element of evaluation contained in a record of an individual’s presence at the workplace beyond normal working hours.  Rather, that record discloses information generic to the position itself.

 

Per La Forest, L’Heureux‑Dubé, Gonthier and Major JJ. (dissenting):  The Access to Information Act  and Privacy Act  have equal status and must be given equal effect.  The courts must have regard to the purposes of both in considering whether a government record constitutes “personal information”.  Both recognize that, in so far as it is encompassed by the definition of “personal information” in s. 3  of the Privacy Act , privacy is paramount over access.

 


The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry.  While the Access to Information Act  recognizes a broad right of access to any record under the control of the government, the overarching purposes of the Act must be considered in determining whether an exemption to that general right should be granted.  The purpose of the Privacy Act  is to protect the privacy of individuals with respect to personal information about themselves held by a government institution and to provide individuals with a right of access to that information.

 

The definition of “personal information” in s. 3  of the Privacy Act  ‑‑ “information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing” ‑‑ indicates that the general opening words are intended to be the primary source of interpretation.  The subsequent enumeration merely identifies examples of the type of subject matter encompassed by the general definition.  The language is deliberately broad and entirely consistent with the great pains that have been taken to safeguard individual liberty.  Its intent is to capture any information about a specific person, subject only to specific exceptions.

 

In the present case, the information requested by the appellant revealed the times during which employees of the Department of Finance attended their workplace on weekends over a period of one month.  It is patently apparent that this constitutes “information about an identifiable individual” within the meaning of s. 3 .  It thus prima facie constitutes “personal information” under s. 3  of the Privacy Act .

 


Although it is not strictly necessary to so find, it is relevant that employees of the respondent would have a reasonable expectation that the information in the sign‑in logs would not be revealed to the general public.  A reasonable person would not expect strangers to have access to detailed, systematic knowledge of an individual’s location during non‑working hours, even if that location is his or her workplace.

 

Once it is determined that a record falls within the opening words of the definition of “personal information” in s. 3  of the Privacy Act , it is not necessary to consider whether it is also encompassed by one of the specific, non‑exhaustive examples set out in paras. (a) to (i).  It should be noted, nevertheless, that the records requested by the appellant in this case clearly fall within para. (i), which states that “personal information” includes “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”.  In this case, the appellant did not request only the names of the employees.  He also wanted access to the times of their arrivals and departures.  The time entries thus constitute “other personal information” within the meaning of the first part of para. (i).

 

                   It is also clear that disclosure of the names themselves, i.e., without the time entries or signatures, would disclose information about the individual within the meaning of the second part of para. (i).  In his access request, the appellant asked for copies of the logs signed by employees on specific days.  Even if the Minister disclosed only the names of the employees listed on those logs, the disclosure would reveal that certain identifiable persons attended their workplace on those days.

 


Section 48  of the Access to Information Act  places the onus on the government to show that it is authorized to refuse to disclose a record.  The Act makes no distinction between the determination as to whether a record is prima facie personal information and whether it is encompassed by one of the exceptions.  Even where it has been shown that the record is prima facie personal information, the government retains the burden of establishing that a record does not fall within one of the exceptions set out in s. 3 .

 

The section 3 personal information provision exempts information attaching to positions but not information relating to specific individuals.  Information relating to the position is thus not “personal information”, even though it may incidentally reveal something about named persons.  Conversely, information relating primarily to individuals themselves or to the manner in which they choose to perform the tasks assigned to them is “personal information”.  Generally speaking, information relating to the position, function or responsibilities of an individual will consist of the kind of information disclosed in a job description.

 

The information requested in the present case is not information about the nature of a particular position.  While it may give the appellant a rough, overall picture of weekend work patterns, it provides no specific, accurate information about any specific employee’s duties, functions or hours of work.  Rather, it reveals information about the activities of a specific individual which may or may not be work‑related.  Even if the logs can be said to record an employee’s overtime hours accurately, such information is “personal information”.  The specific hours worked by individual employees reveal nothing about either the nature or quantity of their work.

 


The names on the sign‑in logs do not constitute a “document prepared by . . . individual[s] in the course of employment”.  First, these logs are not prepared by the employees who sign them; they are the responsibility of security officers.  Second, they are not made “in the course of employment” and have nothing to do with the responsibilities of their positions.

 

A de novo review of the decision of the head of the institution, under s. 8(2) (m)(i) of the Privacy Act , that the public interest in disclosure clearly outweighed any invasion of privacy is not mandated by s. 2  of the Access to Information Act  which provides that decisions on disclosure should be reviewed independently of government.  The reviewing court, under s. 49 of that Act, is to determine whether the refusal to disclose by the head of a government institution was authorized.  If the information does not fall within one of the exceptions to a general right of access, the head of the institution is not “authorized” to refuse disclosure, and the court may order that the record be released pursuant to s. 49 .  In making this determination, the reviewing court may substitute its opinion for that of the head of the government institution.  The situation changes, however, once it is determined that the head of the institution is authorized to refuse disclosure.  Section 49  of the Access to Information Act , then, only permits the court to overturn the decision of the head of the institution where that person is “not authorized” to withhold a record.  Where the requested record constitutes personal information, the head of the institution is authorized to refuse and the de novo review power set out in s. 49  is exhausted.

 

The head of a government institution, under s. 19(2)  of the Access to Information Act , has a discretion to disclose personal information in certain circumstances.  A decision is not immune from judicial oversight merely because it is discretionary.  Abuse of discretion may be alleged but where the discretion has been exercised in good faith, and, where required, in accordance with principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.


 

The Minister properly examined the evidence and carefully weighed the competing policy interests.  He was entitled to make the conclusion that the public interest did not outweigh the privacy interest.  For this Court to overturn this decision would not only amount to a substitution of its view of the matter for his but also do considerable violence to the purpose of the legislation.  The Minister’s failure to give extensive, detailed reasons for his decision did not work any unfairness upon the appellant.

 

The head of a government institution, pursuant to s. 48  of the Access to Information Act , has the burden of establishing that he or she is “authorized to refuse” to disclose a requested record.  The Minister satisfied this burden when he showed that the information in the sign‑in logs constituted “personal information”.  Once that fact is established, the Minister’s decision to refuse to disclose pursuant to s. 8(2) (m)(i) of the Privacy Act  may only be reviewed on the basis that it constituted an abuse of discretion.  The Minister did not have a “burden” to show that his decision was correct because that decision is not reviewable by a court on the correctness standard.  The Minister weighed the conflicting interests at stake.  The fact that he stated that the appellant failed to demonstrate that the public interest should override the privacy rights of the employees named in the sign‑in logs was therefore irrelevant.

 

Cases Cited

 

By Cory J.

 


Considered:  Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551; Rubin v. Clerk of  Privy Council (Can.) (1993), 62 F.T.R. 287.

 

By La Forest (dissenting)

 


 R. v. Morgentaler, [1993] 3 S.C.R. 463; St. Peter’s Evangelical Lutheran Church, Ottawa v. City of Ottawa, [1982] 2 S.C.R. 616;  Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551; Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395; Information Commissioner v. Minister of Employment and Immigration (1986), 5 F.T.R. 287; Bland v. National Capital Commission, [1991] 3 F.C. 325; Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265; R. v. Dyment, [1988] 2 S.C.R. 417; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Osolin, [1993] 4 S.C.R. 595; Schwartz v. Canada, [1996] 1 S.C.R. 254; Order M-35 (Re Corporation of the Township of Osprey, September 4, 1992), [1992] O.I.P.C. No. 119 (QL); Order P-718 (Re Ontario Science Centre, July 6 1994), [1994] O.I.P.C. No. 211   (QL); Order M-438 (Re Town of Amherstburg Police Services Board, December 30, 1994), [1994] O.I.P.C.  No. 434 (QL); Katz. v. United States, 389 U.S. 347 (1967); R. v. Wong, [1990] 3 S.C.R. 36; R. v. Wise, [1992] 1 S.C.R. 527; R. v. Plant, [1993] 3 S.C.R. 281; Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268; Sutherland v. Canada (Minister of Indian and Northern Affairs), [1994] 3 F.C. 527; Terry v. Canada (Minister of National Defence) (1994), 86 F.T.R. 266; MacKenzie v. Canada (Minister of National Health and Welfare) (1994), 88 F.T.R. 52; Thorne v. Newfoundland and Labrador Hydro Electric Corp. (1993), 109 Nfld. & P.E.I.R. 233; Rubin v. Clerk of the Privy Council (Can.) (1993), 62 F.T.R. 287; Orth v. Macdonald Dettwiler & Associates Ltd. (1986), 16 C.C.E.L. 41; Canada (Information Commissioner) v. Canadian Radio-television and Telecommunications Commission, [1986] 3 F.C. 413; McHugh v. Union Bank of Canada, [1913] A.C. 299; Smith & Rhuland Ltd. v. The Queen, on the relation of Brice Andrews, [1953] 2 S.C.R. 95; Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875; Vancouver (City of) v. Simpson, [1977] 1 S.C.R. 71; Isinger v. Buckland (Rural Municipality No. 491) (1986), 48 Sask. R. 207; Re Michelin Tires Manufacturing (Canada) Ltd. (1975), 13 N.S.R. 587; Grand Council of the Crees (of Quebec) v. Canada (Minister of External Affairs and International Trade), [1996] F.C.J. No. 903 (Q.L.); Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219; Canadian Arsenals Ltd. v. Canadian Labour Relations Board, [1979] 2 F.C. 393; Macdonald v. The Queen, [1977] 2 S.C.R. 665; Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684.

 

 

Statutes and Regulations Cited

 

Access to Information Act, R.S.C., 1985, c. A-1 , ss. 2 , 4 , 13 , 19(1) , (2) , 21(1) (b), 25 , 31 , 41 , 48 , 49 , 53(2) , 54 .

 

Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) .

 

Freedom of Information Act, R.S.N. 1990, c. F-25, s. 10(2)(a).

 

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31.

 

Interpretation Act, R.S.C., 1985, c. I-21 , ss. 11 , 12 .

 

Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56.

 

Privacy Act, R.S.C., 1985, c. P-21 , ss. 2 , 3  “personal information” (i), (j), 8(2)(m).

 


Authors Cited

 

Birkinshaw, Patrick.  Freedom of Information:  The Law, the Practice and the Ideal.  London:  Weidenfeld and Nicolson, 1988.

 

Canada.  Report of the Task Force established jointly by the Department of Communications/Department of Justice.  Privacy and Computers.  Ottawa: Information Canada, 1972.

 

Canadian Bar Association.  Special Committee on Freedom of Information.  Freedom of Information in Canada:  A Model Bill.  Ottawa:  The Association, 1979.

 

Feinberg, Joel.  “Autonomy, Sovereignty, and Privacy:  Moral Ideals in the Constitution?” (1982), 58 Notre Dame L. Rev. 445.

 

Fried, Charles.  “Privacy” (1968), 77 Yale L.J. 475.

 

House of Commons Debates, vol. XVI, 1st sess., 32nd Parl., at p. 18853.

 

Jones, David Phillip and Anne S. de Villars.  Principles of Administrative Law, 2nd ed.  Scarborough, Ont.:  Carswell, 1994.

 

Leadbeater J. Alan.  “How Much Privacy for Public Officials?”.   In Hide and Seek -- Current Issues in Freedom of Information and Privacy Law.   Institute of Continuing Legal Education, Canadian Bar Association (Ontario), March 25, 1994, Tab 2.

 

Mullan, David J.  “Access to Information and Rule-Making”, in John D. McCamus, ed., Freedom of Information:  Canadian Perspectives, at p. 54.  Toronto:  Butterworths, 1981.

 

Onyshko, Tom.  “The Federal Court and the Access to Information Act ” (1993), 22 Man. L.J. 73.

 

Plamenatz, John.  Democracy and Illusion.  London:  Longman, 1973.

 

Rowat, Donald C.  “How Much Administrative Secrecy?” (1965), 31 Can. J. of Econ. and Pol. Sci. 479.

 

Westin, Alan F.  Privacy and Freedom.  New York:  Atheneum, 1970.

 

APPEAL from a judgment of the Federal Court of Appeal, [1995] 3 F.C. 199, 124 D.L.R. (4th) 553, 181 N.R. 139, allowing an appeal from a judgment of Cullen J. (1993), 70 F.T.R. 54, 22 Admin. L.R. (2d) 171.  Appeal allowed, La Forest, L’Heureux‑Dubé, Gonthier and Major JJ. dissenting.


Alan Riddell and Sean Gaudet, for the appellant.

 

Graham Garton, Q.C., and Anne M. Turley, for the respondent.

 

Denis J. Power, Q.C., and Holly Harris, for the intervener the Privacy Commissioner of Canada.

 

Andrew Raven and David Yazbeck, for the intervener the Public Service Alliance of Canada.

 

//Cory J.//

                                                                                                                                         

The judgment of Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ. was delivered by

 

1              Cory J. -- I have read the careful and extensive reasons of Justice La Forest.  I agree with his approach to the interpretation of the Access to Information Act, R.S.C. 1985, c. A-1 , and the Privacy Act, R.S.C., 1985, c. P-21 , particularly that they must be interpreted and read together.  I also agree that the names on the sign‑in logs are “personal information” for the purposes of s. 3  of the Privacy Act .  However, I arrive at a different conclusion with respect to the application of s. 3  “personal information” (j) (hereinafter s. 3 (j)) of that Act.

 

2              Subsection 3 (j) of the Privacy Act  provides that:

 

. . . for the purposes of sections 7 , 8  and 26  and section 19  of the Access to Information Act , [“personal information”] 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,

 

                                                                   . . .

 

(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. . . .

 

3              I agree with La Forest J. that the names on the sign‑in logs do not fall under s. 3 (j)(iv) of the Privacy Act .  It would be difficult to conclude that the sign‑in logs were “prepared by” the employees, as that expression is commonly understood.

 

4              However, I am of the view that both the opening words of s. 3 (j) and the specific provisions of s. 3 (j)(iii) of the Privacy Act  are sufficiently broad to encompass the information sought by the appellant.

 

5              La Forest J. holds, at para. 94, that the purpose of s. 3 (j) and s. 3 (j)(iii) of the Privacy Act  is:

 

. . .  to exempt only information attaching to positions and not that which relates to specific individuals.  Information relating to the position is thus not “personal information”, even though it may incidentally reveal something about named persons.  Conversely, information relating primarily to individuals themselves or to the manner in which they choose to perform the tasks assigned to them is “personal information”.  [Emphasis in original.]

 


6              I agree.  Moreover, I agree with La Forest J. that “[g]enerally speaking, information relating to the position . . . will consist of the kind of information disclosed in a job description”, such as “the terms and conditions associated with a particular position, including . . . qualifications, duties, responsibilities, hours of work and salary range” (para. 95).

 

7              However, in applying these considerations to the facts, La Forest J. concludes that the information requested by the appellant is not information about the nature of a particular position.  It is on this point that I must differ.

 

8              The number of hours spent at the workplace is generally information “that relates to” the position or function of the individual, and thus falls under the opening words of s. 3 (j).  It is no doubt true that employees may sometimes be present at their workplace for reasons unrelated to their employment.  Nevertheless, I am prepared to infer that, as a general rule, employees do not stay late into the evening or come to their place of employment on the weekend unless their work requires it.  Ordinarily the workplace cannot be mistaken for either an entertainment centre or the setting for a party.  The sign‑in logs therefore provide information which would at the very least permit a general assessment to be made of the amount of work which is required for an employee’s particular position or function.

 

9              For the same reason, the information in the sign‑in logs is related to “the . . . responsibilities of the position held by the individual” and falls under the specific exception set out at s. 3 (j)(iii) of the Privacy Act .  Although this information may not disclose anything about the nature of the responsibilities of the position, it does provide a general indication of the extent of those responsibilities.  Generally, the more work demanded of the employee, the longer will be the hours of work required to complete it in order to fulfil the “responsibilities of the position held by the individual”.  Nothing in s. 3(j)(iii) of the Act indicates that the information must refer to “responsibilities” in a qualitative, as opposed to quantitative, sense.


 

10          The reasons of the Federal Court in Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.) (hereinafter “Information Commissioner”) and Rubin v. Clerk of Privy Council (Can.) (1993), 62 F.T.R. 287 (hereinafter “Rubin”) are in my view distinguishable.

 

11          In Information Commissioner, Jerome A.C.J. held that certain opinions expressed about the training, personality, experience or competence of individual employees did not fall under any of the exemptions set out at s. 3 (j) of the Privacy Act .  In construing these specific exceptions, it was observed that, apart from s. 3 (j)(v) (the individual’s own views or opinions given in the course of employment), each of them are examples of “matters of objective fact” (pp. 557-58).  According to Jerome A.C.J., at p. 558:

 

There is no indication that qualitative evaluations of an employee’s performance 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.

 

12          In my view, there is neither a subjective aspect nor an element of evaluation contained in a record of an individual’s presence at the workplace beyond normal working hours.  Rather, that record discloses information generic to the position itself.

 

13          In Rubin, it was held that, although the salary range attaching to a position fell under s. 3 (j)(iii) of the Privacy Act , the actual salary earned by the employee filling the position did not.  However, unlike the information contained in the sign‑in sheets, the actual salary which a person receives does not reveal anything inherent about the position.  On the contrary, it is information that relates to the individual employee.

 


14          My conclusion that the names on the sign‑in logs fall within the opening words of s. 3 (j) of the Privacy Act  and, alternatively, within s. 3(j)(iii) of the Act, is sufficient to dispose of this appeal.  It follows that the information must be disclosed.

 

15          There remain two additional matters which I would like to mention.  First, there might be another acceptable manner of resolving the dispute which would go further in protecting the privacy and security of the individuals.  Perhaps this could be achieved by setting out the hours worked and indicating which of the employees appearing on the sign‑in sheets were members of the bargaining unit, without revealing their names.  That solution might satisfy all concerned.  Yet, in the absence of submissions on such a proposed solution, it would be unfair and improper to consider it in this appeal.

 

16          Second, in light of the conclusion that the information must be disclosed, it is not necessary for me to consider whether the Minister erred in his exercise of the discretion conferred upon him pursuant to s. 19(2)  of the Access to Information Act  and s. 8  of the Privacy Act .  In general, I agree with La Forest J.’s conclusion that a Minister’s discretionary decision under s. 8(2) (m)(i) is not to be reviewed on a de novo standard of review.  Perhaps it will suffice to observe that the Minister is not obliged to consider whether it is in the public interest to disclose personal information.  However in the face of a demand for disclosure, he is required to exercise that discretion by at least considering the matter.  If he refuses or neglects to do so, the Minister is declining jurisdiction which is granted to him alone.

 

17          Furthermore, it could be determined that the Minister committed an error in principle resulting in a loss of jurisdiction when he stated:

 


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.  [Emphasis added.]

 

18          From this, it appears that the Minister of Finance placed upon the appellant the burden of demonstrating that the public interest in disclosure clearly outweighed any privacy interest.  Yet, s. 8  of the Privacy Act  does not mention any burden of proof.  It simply provides that the Minister must be satisfied that the public interest in disclosure clearly outweighs privacy.  The quoted words from the Minister’s ruling could lead to the conclusion that he abused the discretion conferred upon him.  If this had been the conclusion reached, I would have referred the matter back to the Minister for consideration without the imposition of the onus on the appellant.

 

19          In the result, I would allow the appeal, with costs.

 

//La Forest J.//

 

The reasons of La Forest, L’Heureux-Dubé, Gonthier and Major JJ. were delivered by

 


20               La Forest J. (dissenting) -- This appeal involves a conflict between access to information and privacy rights under federal legislation.  For the first time, this Court has the opportunity to consider an application pursuant to s. 41  of the Access to Information Act, R.S.C., 1985, c. A-1 , to review a decision as to whether certain information under the control of the Government of Canada should be disclosed.  Specifically, the appellant challenges the decision of the respondent Minister of Finance to refuse to disclose portions of departmental sign-in logs on the basis that they constitute “personal information” within the meaning of s. 3  of the Privacy Act, R.S.C., 1985, c. P-21 .

 

Factual Background

 

21               On October 16, 1990, the appellant, Dagg, a professional access to information consultant, filed a request with the Department of Finance for copies of logs signed by employees entering and leaving the workplace on weekends during the month of September, 1990.  On November 6, 1990, the respondent Minister disclosed the relevant logs to the appellant.  The Minister had, however, deleted the employees’ names, identification numbers and signatures.  In his letter accompanying the disclosed logs, the Minister explained that this information constituted personal information and was thus exempted from disclosure in accordance with s. 19(1)  of the Access to Information Act .

 

22               On November 29, 1990, the appellant filed a complaint with the Information Commissioner pursuant to s. 31  of the Access to Information Act On March 18, 1991, he wrote to the Minister seeking a review of his earlier decision.  He argued that the names of the employees which had been deleted from the record should be disclosed by virtue of s. 3  “personal information” (j) (hereinafter s. 3 (j)) or s. 8(2) (m) of the Privacy Act .  The Minister confirmed his decision by way of a letter dated July 3, 1991.  In his report of September 4, 1991, the Information Commissioner concluded that the appellant had not been deprived of a right under the Access to Information Act  and indicated that he was unable to support his complaint.

 


23               The appellant applied to the Federal Court, Trial Division, for a review of the Minister’s decision  pursuant to s. 41  of the Access to Information Act .  The evidence of R. Langille, the Department’s Director of Security Services, revealed that the sign-in logs recorded the names, identification numbers and signatures of the individuals entering the Department, as well as their location in the building and the times of their arrival and departure.  According to Langille, the primary purpose of the sign-in logs was to locate personnel in case of fire.  He also stated that they had been used to assist in investigations of theft and vandalism, though they were not kept for that purpose.  On occasion, he testified, logs had been shown to managers in order to verify that an employee was present in the building at a particular time.  As far as Langille was aware, however, the logs were not used to verify overtime claims.

 

24               In his own evidence, the appellant stated that he sought the information as part of a marketing initiative.  He wanted to determine whether union members were working overtime on weekends without claiming compensation.  He intended to present this information to the union anticipating that it would find it helpful in the collective bargaining process and thereby be disposed to retain his services.  He also hoped to obtain a legal precedent on the release of names that would force government departments to adopt a consistent response to such requests.

 

25               On November 8, 1993, Cullen J. held that the names were not personal information and should be released.  The respondent appealed to the Federal Court of Appeal.  In a unanimous decision dated April 21, 1995, the court allowed the appeal.

 

Applicable Legislation

 

26               Before proceeding further, it will be useful to set out the relevant provisions of the Access to Information Act  and the Privacy Act .  Section 2 of each Act sets out the statute’s purpose:


Access to Information 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.

 

Privacy 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.

 

27               Section 4  of the Access to Information Act  sets out the basic right to government-held information:

 

4.  (1) Subject to this Act, but notwithstanding any other Act of Parliament, every person who is

 

(a) a Canadian citizen, or

 

(b) a permanent resident within the meaning of the Immigration Act,

 

has a right to and shall, on request, be given access to any record under the control of a government institution.

 

28               This right to government information is limited by a number of exemptions set out in the Access to Information Act  beginning at s. 13 .  Of relevance here is s. 19(1), the personal information exemption, which states:

 

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 .

 

29               “Personal information” is defined by s. 3  of the Privacy Act .  It reads:

 


3.  . . .

“personal information” means information about an identifiable individual     that is recorded in any form including, without restricting the generality of the foregoing,

 

                                                                   . . .

 

(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. . . .

 

 

30               Even if a record constitutes “personal information” under this definition, however, s. 19(2)  of the Access to Information Act  provides the head of a government institution with a residual discretion to release the information under the following circumstances:

 

19.  . . .

 

(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 .

 

31               Section 8  of the Privacy Act , in relevant part, states:

 

8.  . . .

 

(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. . . .

 

32               The Information Commissioner is appointed under s. 54  of the Access to Information Act  by the Governor in Council after approval by resolution of the Senate and House of Commons.  He has the responsibility of receiving and investigating complaints under the Act including from those who have been denied access to a record or part of a record.

 

33               Section 41  of the Access to Information Act  provides for the review of a decision to refuse access to a record.  It states:

 

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) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow.

 


34               Section 48 of the Act sets out the burden of proof to be employed by a reviewing court:

 

48.  In any proceedings before the Court arising from an application under section 41  or 42 , 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.

 

35               Finally, s. 49  sets out the powers of the reviewing court to order disclosure of government information:

 

49.  Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of a provision of this Act not referred to in section 50, the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.

 

Judicial History

 

Federal Court, Trial Division (1993), 70 F.T.R. 54

 

36               Cullen J. held that the question whether a record is “personal information” is to be determined according to whether its predominant characteristic is personal or professional.  In his view, the information in the sign-in logs, even if potentially usable to ascertain personal information about the individuals thereon, is nonetheless predominantly of a professional and non-personal nature.  Taken as a whole, he concluded, they indicate how many individuals are working overtime for the Department.

 


37               Cullen J. found that the broad definition of “personal information” proposed by the respondent would mean that virtually all government information would be exempt from disclosure.  Such an interpretation, he held, deviates from Parliament’s intention that most information emanating from government should be disclosed.

 

38               Cullen J. also held that the sign-in logs did not fall within s. 3 (i) of the Privacy Act .  Because the identification numbers and signatures had been excised from the logs, he determined, the names did not “appear” with other personal information.  He concluded, moreover, at p. 58, that the names themselves did not disclose any “other personal information” as defined in s. 3 (i).

 

39               Having determined that the names on the sign-in logs were not personal information, Cullen J. found it unnecessary to determine whether they fell within the exemption provided in s. 3 (j) of the Privacy Act  or whether the public interest override in s. 8(2) (m) militated in favour of disclosure.

 

Federal Court of Appeal, [1995] 3 F.C. 199

 

40               On appeal to the Federal Court of Appeal, Isaac C.J., for the court, held that Cullen J. erred by giving the Access to Information Act  pre-eminence over the Privacy Act .  In his view, the statutes are complementary and must be construed harmoniously with one another.  He also found that Cullen J. erred in using the so-called “predominant characteristic test” to determine whether the names in the sign-in logs constituted personal information.  The plain language of s. 3  of the Privacy Act , he held, states simply that “personal information” is information about an identifiable individual that is recorded in any form.

 


41               Isaac C.J. then determined that s. 3  “personal information” (i) (hereinafter s. 3 (i)) of the Privacy Act  also applied to the sign-in logs.  He held so, first, because the names appeared in the logs together with identification numbers and signatures of the individuals concerned, and secondly, because the names, in and of themselves, would disclose the individuals’ whereabouts at specified times.

 

42               Isaac C.J. next considered whether the sign-in logs fell within the exceptions set out in s. 3 (j) of the Privacy Act .  In his view, the information revealed in the logs was not related to the employees’ positions or functions.  There was no evidence, he held, that this information indicated the employees’ working hours.  He also dismissed the appellant’s arguments that the logs disclosed information about the employees’ overtime responsibilities and that the logs are documents prepared in the course of employment.

 

43               Finally, Isaac C.J. addressed the argument that the Minister exercised his discretion improperly in declining to disclose the information pursuant to s. 8(2) (m) of the Privacy Act .  In rejecting the appellant’s contention that there was a public interest in the disclosure of the information, he noted that the sign-in logs did not indicate whether the employees were working or whether they were working overtime and, if so, the number of hours they worked.  He concluded, therefore, that the disclosure of the names would not produce the result desired by the appellant.

 

Issues

 

44               There are three issues to be decided in this appeal:

 

1.                Do the names on the sign-in logs constitute “personal information” as defined in s. 3  of the Privacy Act ?


2.                Do the names on the logs fall within the exception set out in s. 3 (j) of the Privacy Act ?

 

3.                Did the Minister exercise his discretion properly in refusing to disclose the names on the sign-in sheets pursuant to s. 8(2) (m)(i) of the Privacy Act ?

 

Analysis

 

General Interpretive Principles:  Access to Information v. Privacy

 

45               This appeal involves a clash between two competing legislative policies -- access to information and privacy.  For obvious reasons, the appellant and respondent have opposing views as to which of these policies should prevail in this case.  It should also come as no surprise that the litigants have markedly different conceptions of the statutes that embody those policies.  Recognizing the conflicting nature of governmental disclosure and individual privacy, Parliament attempted to mediate this discord by weaving the Access to Information Act  and the Privacy Act  into a seamless code.  In my opinion, it has done so successfully and elegantly.  While the two statutes do not efface the contradiction between the competing interests  -- no legislation possibly could  -- they do set out a coherent and principled mechanism for determining which value should be paramount in a given case.

 


46               The appellant contends that the personal information exemption in the Access to Information Act  should be construed narrowly so as to favour full disclosure.  The Act, he points out, provides that members of the public have a “right of access” to government information (ss. 2 , 4 ) and that exceptions to this right should be “limited and specific” (s. 2 ).  He argues, in effect, that where there is any ambiguity as to whether a record constitutes personal information, the right to disclosure should prevail over the right of privacy.

 

47               This position is belied, however, by both the wording and history of the legislation.  As already noted, the Access to Information Act  and the Privacy Act  are parallel statutes, designed to work in concert to restrict the federal government’s control over certain kinds of information.  The Access to Information Act  gives individuals a right of access to government information.  The Privacy Act  permits them to gain access to information about themselves held in government data banks, and limits the government’s ability to collect, use and disclose personal information.

 

48               Both statutes regulate the disclosure of personal information to third parties.  Section 4(1)  of the Access to Information Act  states that the right to government information is “[s]ubject to this Act”.  Section 19(1) of the Act prohibits the disclosure of a record that contains personal information “as defined in section 3  of the Privacy Act ”.  Section 8  of the Privacy Act  contains a parallel prohibition, forbidding the non-consensual release of personal information except in certain specified circumstances.  Personal information is thus specifically exempted from the general rule of disclosure.  Both statutes recognize that, in so far as it is encompassed by the definition of “personal information” in s. 3  of the Privacy Act , privacy is paramount over access.

 

49               This interpretation is buttressed by the legislative history of the Acts.  As this Court has recently confirmed, evidence of a statute’s history, including excerpts from Hansard, is admissible as relevant to the background and purpose of the legislation, provided, of course, that the court remains mindful of its limited reliability and weight; see R. v. Morgentaler, [1993] 3 S.C.R. 463, at pp. 483-85.

 


50               The Access to Information Act  and the Privacy Act  were originally considered together by Parliament as Bill C-43, and were enacted simultaneously as Schedules I and II to S.C. 1980-81-82-83, c. 111.  In introducing the Bill for third reading, the Minister of Communications made the following comments (House of Commons Debates, vol. XVI, 1st sess., 32nd Parl., at p. 18853 (June 28, 1982)):

 

. . .  I would like to take a few moments to discuss the relationship between access to information and privacy legislation.  Combining access to information and privacy legislation in one bill has permitted the complete integration of these two complimentary [sic] 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.  At the same time, however, the principle that the right to privacy takes precedence over the general right of access has been clearly recognized.  This is a principle with which I am sure all hon. members agree.  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.  [Emphasis added.]

 


51               It is clear, therefore, that Parliament did not intend access to be given preeminence over privacy.  The appellant correctly points out that under the Access to Information Act , access is the general rule.  It is also true that exceptions to that rule must be confined to those specifically set out in the statute and that the government has the burden of showing that information falls into one of these exceptions.  It does not follow, however, that the “personal information” exemption should receive a cramped interpretation.  To do so would effectively read the Privacy Act  as subordinate to the Access to Information Act .   As stated in s. 12  of the Interpretation Act, R.S.C., 1985, c. I-21 , every enactment is to be given “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”.  A court may not disregard, “in an effort to give effect to what is taken to be the purpose of the statute . . . certain provisions of the Act”; see St. Peter’s Evangelical Lutheran Church, Ottawa v. City of Ottawa, [1982] 2 S.C.R. 616, at p. 626.  The Access to Information Act  expressly incorporates the definition of “personal information” from the Privacy Act .  Consequently, the underlying purposes of both statutes must be given equal effect.  As Isaac C.J. stated in the Court of Appeal below, at p. 217:

 

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.

 

52               This position has been confirmed in a number of decisions of the Federal Court.  In Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.), Jerome A.C.J. stated the following, at pp. 556-57:

 

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.  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 protection 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 themselves.  These principles do not appear to me to require protection 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 incorporation 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.

 

Similarly, Dubé J. noted in Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395 (T.D.), that the objects of the two acts should be read together.  He concluded, at p. 401, that the joint objective of the acts was “that information shall be provided to the public, except personal information relating to individuals”.

 

53               Admittedly, there are dicta in some decisions implying that access should, in some circumstances, be favoured over privacy.  In Information Commissioner v. Minister of Employment and Immigration (1986), 5 F.T.R. 287, Jerome A.C.J., in contradistinction to his later comments in Canada (Information Commissioner) v. Canada (Solicitor General), supra, relied solely on the Access to Information Act ’s purpose clause in concluding that doubt ought to be resolved in favour of disclosure.  In that case, however, it was not contested that the information requested constituted “personal information” under s. 8  of the Privacy Act .  Rather, the dispute was whether the head of a government institution may refuse to disclose personal information pursuant to s. 19(2)  of the Access to Information Act  if the individual to whom the information relates consents to the disclosure.

 


54               Similarly, in Bland v. National Capital Commission, [1991] 3 F.C. 325 (T.D.), at p. 335, Muldoon J. referred to Heald J.A.’s comments in Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265, at p. 274, where he stated that the exemptions to the general right of access must be interpreted “strictly”.  As in Information Commissioner v. Minister of Employment and Immigration, supra, however, Muldoon J.’s comments were made in the context of deciding whether the head of the National Capital Commission exercised her discretion properly in refusing to release the requested information pursuant to s. 19(2)  of the Access to Information Act .  The Rubin case, moreover, did not even involve the issue of personal information.  In that decision, the dispute was whether the Canada Mortgage and Housing Corporation could refuse to disclose certain records containing accounts of consultations or deliberations involving Crown employees pursuant to s. 21(1) (b) of the Access to Information Act .

 

55               In summary, it is clear that the Access to Information Act  and Privacy Act  have equal status, and that courts must have regard to the purposes of both statutes in considering whether a government record constitutes “personal information”.  Some commentators have suggested that this “parallel” interpretive model permits judges too much discretion and has led to inconsistency and contradiction in the jurisprudence.  See, for example, Tom Onyshko, “The Federal Court and the Access to Information Act ” (1993), 22 Man. L.J. 73, at p. 106.  It is suggested that the two statutes should be considered conceptually distinct and that the right to access should be the paramount consideration under the access legislation.

 


56               As I have indicated, however, this interpretation flies in the face of the language, structure and history of the legislation.  I do not believe, moreover, that the parallel interpretation model is inherently contradictory or necessarily leads to inconsistent results.  The Access to Information Act  clearly provides that “personal information” is not to be disclosed except in certain specified circumstances.  Of course, the determination of what constitutes “personal information” will involve a balancing of competing values.  Such a balancing process, where mandated by legislation, cannot be avoided simply because it might be easier to apply a clear, bright-line rule that favours one interest over another.  By employing the considerations set out in the Privacy Act , courts are perfectly capable of developing a jurisprudence that achieves consistency in principle.

 

57               That being said, I cannot agree with the respondent that, the words of the “personal information” exemption being clear and unambiguous, the task of statutory interpretation does not arise in this case.  The determination of what constitutes “personal information” is an interpretive exercise; an exercise that will inevitably require a consideration of the competing values of access and privacy.  I will next consider the meaning of “personal information” with these values in mind.

 

 

Do the Names on the Sign-in Logs Constitute “Personal Information”?

 

58               Before attempting to determine whether the sign-in logs requested by the appellant in this case constitute “personal information” within the meaning of s. 3  of the Privacy Act , it will be helpful to consider the purposes of the Acts in somewhat greater detail.                                                          

 


59               As earlier set out, s. 2(1)  of the Access to Information Act  describes its purpose, inter alia, as providing “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”.  The idea that members of the public should have an enforceable right to gain access to government-held information, however, is relatively novel.  The practice of government secrecy has deep historical roots in the British parliamentary tradition; see Patrick Birkinshaw, Freedom of Information:  The Law, the Practice and the Ideal (1988), at pp. 61-84.

 

60               As society has become more complex, governments have developed increasingly elaborate bureaucratic structures to deal with social problems.  The more governmental power becomes diffused through administrative agencies, however, the less traditional forms of political accountability, such as elections and the principle of ministerial responsibility, are able to ensure that citizens retain effective control over those that govern them; see David J. Mullan, “Access to Information and Rule-Making”, in John D. McCamus, ed., Freedom of Information:  Canadian Perspectives (1981), at p. 54.

 

61               The overarching purpose of access to information legislation, then, is to facilitate democracy.  It does so in two related ways.  It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry.  As Professor Donald C. Rowat explains in his classic article, “How Much Administrative Secrecy?” (1965), 31 Can. J. of Econ. and Pol. Sci. 479, at p. 480:

 

Parliament and the public cannot hope to call the Government to account without an adequate knowledge of what is going on; nor can they hope to participate in the decision-making process and contribute their talents to the formation of policy and legislation if that process is hidden from view.

 

See also:  Canadian Bar Association, Freedom of Information in Canada:  A Model Bill (1979), at p. 6.


 

62               Access laws operate on the premise that politically relevant information should be distributed as widely as reasonably possible.  Political philosopher John Plamenatz explains in Democracy and Illusion (1973), at pp. 178-79:

 

There are not two stores of politically relevant information, a larger one shared by the professionals, the whole-time leaders and persuaders, and a much smaller one shared by ordinary citizens.  No leader or persuader possesses more than a small part of the information that must be available in the community if government is to be effective and responsible; and the same is true of the ordinary citizen.  What matters, if there is to be responsible government, is that this mass of information should be so distributed among professionals and ordinary citizens that competitors for power, influence and popular support are exposed to relevant and searching criticism.  [Emphasis in original.]

 

63               Rights to state-held information are designed to improve the workings of government; to make it more effective, responsive and accountable.  Consequently, while the Access to Information Act  recognizes a broad right of access to “any record under the control of a government institution” (s. 4(1) ), it is important to have regard to the overarching purposes of the Act in determining whether an exemption to that general right should be granted.

 

64               The purpose of the Privacy Act , as set out in s. 2 of the Act, is twofold.  First, it is to “protect the privacy of individuals with respect to personal information about themselves held by a government institution”; and second, to “provide individuals with a right of access to that information”.  This appeal is, of course, concerned with the first of these purposes.

 


65               The protection of privacy is a fundamental value in modern, democratic states; see Alan F. Westin, Privacy and Freedom (1970), at pp. 349-50.  An expression of an individual’s unique personality or personhood, privacy is grounded on physical and moral autonomy -- the freedom to engage in one’s own thoughts, actions and decisions; see R. v. Dyment, [1988] 2 S.C.R. 417, at p. 427, per La Forest J.; see also Joel Feinberg, “Autonomy, Sovereignty, and Privacy:  Moral Ideals in the Constitution?” (1982), 58 Notre Dame L. Rev. 445.

 

66               Privacy is also recognized in Canada as worthy of constitutional protection, at least in so far as it is encompassed by the right to be free from unreasonable searches and seizures under s. 8  of the Canadian Charter of Rights and Freedoms ; see Hunter v. Southam Inc., [1984] 2 S.C.R. 145.  Certain privacy interests may also inhere in the s. 7  right to life, liberty and security of the person; see R. v. Hebert, [1990] 2 S.C.R. 151, and R. v. Broyles, [1991] 3 S.C.R. 595.

 

67               Privacy is a broad and somewhat evanescent concept, however.  It is thus necessary to describe the particular privacy interests protected by the Privacy Act  with greater precision.  In Dyment, I referred to Privacy and Computers, the Report of the Task Force established jointly by the Department of Communications/Department of Justice (1972), especially at pp. 428-30.  That “report classifies these claims to privacy as those involving territorial and spatial aspects, those related to the person, and those that arise in the information context”.  It is the latter type of privacy interest that is of concern in the present appeal.  As I put it in Dyment, at pp. 429-30:

 


Finally, there is privacy in relation to information.  This too is based on the notion of the dignity and integrity of the individual.  As the Task Force put it (p. 13):  “This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit.”  In modern society, especially, retention of information about oneself is extremely important.  We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected.  Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example, the Privacy Act . . . .

 

See also R. v. Duarte, [1990] 1 S.C.R. 30, at p. 46 (“privacy may be defined as the right of the individual to determine for himself when, how, and to what extent he will release personal information about himself”); R. v. Osolin, [1993] 4 S.C.R. 595, at pp. 613-15 (per L’Heureux-Dubé J., dissenting); Westin, supra, at p. 7 (“[p]rivacy is the claim of individuals . . . to determine for themselves when, how, and to what extent information about them is communicated to others”); Charles Fried, “Privacy” (1968), 77 Yale L.J. 475, at p. 483 (“[p]rivacy . . . is control over knowledge about oneself”).

 

68               With these broad principles in mind, I will now consider whether the information requested by the appellant constitutes personal information under s. 3  of the Privacy Act .  In its opening paragraph, the provision states that “personal information” means “information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing”.  On a plain reading, this definition is undeniably expansive.  Notably, it expressly states that the list of specific examples that follows the general definition is not intended to limit the scope of the former.  As this Court has recently held, this phraseology indicates that the general opening words are intended to be the primary source of interpretation.  The subsequent enumeration merely identifies examples of the type of subject matter encompassed by the general definition; see Schwartz v. Canada, [1996] 1 S.C.R. 254, at pp. 289-91.  Consequently, if a government record is captured by those opening words, it does not matter that it does not fall within any of the specific examples.

 


69               As noted by Jerome A.C.J. in Canada (Information Commissioner) v. Canada (Solicitor General), supra, at p. 557, the language of this section is “deliberately broad” and “entirely consistent with the great pains that have been taken to safeguard individual identity”.  Its intent seems to be to capture any information about a specific person, subject only to specific exceptions; see J. Alan Leadbeater, “How Much Privacy for Public Officials?”, speech to Canadian Bar Association (Ontario), March 25, 1994, at p. 17.  Such an interpretation accords with the plain language of the statute, its legislative history and the privileged, foundational position of privacy interests in our social and legal culture.

 

70               In the present case, the information requested by the appellant revealed the times during which employees of the Department of Finance attended their workplace on weekends over a period of one month.  It is patently apparent that this constitutes “information about an identifiable individual” within the meaning of s. 3  of the Privacy Act .  As a result, I believe that the information prima facie constitutes “personal information” under s. 3 .  Notably, information relating to the number of hours worked by an employee during a particular period has been held to be personal information under the Ontario Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, and the  Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56:  Order M-35 (Re Corporation of the Township of Osprey, September 4, 1992), [1992] O.I.P.C. No. 119 (QL); Order P-718 (Re Ontario Science Centre, July 6, 1994), [1994] O.I.P.C. No. 211 (QL).  Similarly, it has been held that information that would reveal the number of overtime hours worked by an identifiable individual is personal information:  Order M-438 (Re Town of Amherstburg Police Services Board, December 30, 1994), [1994] O.I.P.C. No. 434 (QL).  The general definition of “personal information” under s. 2(1) of the Ontario Acts is virtually identical to that contained in s. 3 of the federal Privacy Act .

 


71               Although it is not strictly necessary for my analysis, I believe that employees of the respondent would have a reasonable expectation that the information in the sign-in logs would not be revealed to the general public.  The “reasonable expectation of privacy” principle is a tool used in search and seizure jurisprudence to determine whether or not a search is “reasonable” in constitutional terms; see Hunter v. Southam Inc., supra; Katz v. United States, 389 U.S. 347 (1967).  The principle ensures that, at a conceptual level, the dignity and autonomy interests at the heart of privacy rights are only compromised when there is a compelling state interest for doing so.

 

72               In my view, a reasonable person would not expect strangers to have access to detailed, systematic knowledge of an individual’s location during non-working hours, even if that location is his or her workplace.  The motions judge, at p. 60, concluded that “revealing the masses of individuals entering and leaving a government premise [sic] for a certain time frame is hardly the stuff of revealing personal information”.  There are numerous reasons, however, why individuals may not wish members of the general public to have access to records of their comings and goings from work during non-office hours.  Consider the case of an employee, physically abused by her spouse, who is permitted by management to work after normal working hours in order to avoid detection and harassment.  Would this individual consider the disclosure of her sign-in logs to be innocuous?  See Leadbeater, supra, at p. 18.  To take a less foreboding example, is it fair to expect that the sign-in logs of government employees who regularly work after hours could be made available to corporations with an interest in targeting such persons for marketing certain products or services?

 


73               In the Charter  context, this Court has recognized that individuals have a right to be free from various forms of state surveillance.  In Duarte, supra, the Court determined that the electronic taping of private communications by state authorities violated the privacy interests protected by s. 8  of the Charter .  In R. v. Wong, [1990] 3 S.C.R. 36, it held that the videotaping of events in a private hotel room also ran afoul of the s. 8  right against unreasonable search and seizure.  And in R. v. Wise, [1992] 1 S.C.R. 527, the Court concluded that a person’s reasonable expectation of privacy extended to protection from unrecorded, electronic surveillance of a person’s physical movements.  In that case, the Court held that the accused’s s. 8  rights were violated by the placement of a crude electronic tracking device in his car, though the majority concluded that the search was only “minimally intrusive” for the purposes of determining whether the evidence obtained should be excluded pursuant to s. 24(2)  of the Charter .

 

74               It must be remembered, however, that in the criminal law context, the countervailing state interest in surveillance may be very strong.  In Wise, for example, the targeted individual was a prime suspect in a series of murders.  The state interest in disclosing the information in the present case, if any, is certainly far less compelling than the interest at stake in Wise.  Of course, the recording of a person’s presence at his or her workplace may be less intrusive than the kind of state-controlled electronic surveillance at issue in cases like Wise, Duarte and Wong.  Nevertheless, as I noted in my dissent in Wise, at p. 557, “[a]n individual has a reasonable expectation of privacy not only in the communications he makes, but in his movements as well”.

 


75               In determining whether an individual has a reasonable expectation of privacy in a particular piece of information, it is important to have regard to the purpose for which the information was divulged; see Dyment, supra, at pp. 429-30, per La Forest J.; R. v. Plant, [1993] 3 S.C.R. 281, at pp. 292-93.  Generally speaking, when individuals disclose information about themselves they do so for specific reasons.  Sometimes, information is revealed in order to receive a service or advantage.  At other times, persons will release information because the law requires them to do so.  In either case, they do not expect that the information will be broadcast publicly or released to third parties without their consent.  As I stated in Dyment, supra, at pp. 429-30, “situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected”.

 

76               In the present case, the information on the sign-in logs was collected in order to determine who was in the building in the case of a fire or other emergency.  Although the logs were occasionally used for other purposes, there is no evidence that they were ever used to verify overtime claims.  More important, it is clear that the persons signing the logs would not have expected that they might be released to the general public.  At the very least, employees of the Department should be entitled to expect that the information in the logs would be retained by their employer to be used by it for legitimate business purposes.

 

77               As earlier stated, once it is determined that a record falls within the opening words of the definition of “personal information” in s. 3  of the Privacy Act , it is not necessary to consider whether it is also encompassed by one of the specific, non-exhaustive examples set out in paras. (a) to (i).  I note, nevertheless, that the records requested by the appellant in this case clearly fall within para. (i).  That provision states that “personal information” includes:

 

(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. . . .

 

 


78               The Court of Appeal found that the names on the sign-in sheets are encompassed by the first part of para. (i); i.e., they “appea[r] with other personal information relating to the individual”, namely, the signatures and identification numbers of the person making the entry.  It also concluded that the disclosure of the name itself would reveal information about the individual as set out in the second branch of the provision.

 

79               The appellant avers that the names do not fall within the first part of  para. (i) because he did not request the disclosure of their accompanying identification numbers and signatures.  The respondent contends, in contrast, that the s. 4(1)  of the Access to Information Act  does not grant a right of access to a discrete piece of information, but rather to a record, a term defined in s. 3 of that statute.  The inquiry as to whether a name should be disclosed, he asserts, must consider the whole of the document in which the personal information appears, not merely a truncated version of it.

 

80               The respondent’s submission on this point is unconvincing.  While it is true that Act speaks of access to a “record”, I do not believe this should be interpreted as meaning only an entire physical document.  Under any practical, contextualized definition, “record” would refer to a particular piece of information under the control of a government institution, regardless of whether that piece is located within a larger “document”.  If the physical nature of the document is such that non-personal information appears together with personal information, it generally should be possible to disclose only the non-personal portion of the document.  As the Minister’s actions demonstrate, it was possible in the instant case simply to excise the identification numbers and signatures from the sign-in logs.  Indeed, s. 25  of the Access to Information Act  requires the Minister to disclose any portion of a record that does not contain information that he is authorized to withhold, so long as the portion can reasonably be severed from any part that does contain such information.


81               While the Court of Appeal thus erred in concluding that the fact that names on the sign-in logs appeared with the signatures and identification numbers rendered the names “personal information”, this does not end the matter.  The appellant did not request only the names of the employees.  He also wanted access to the times of their arrivals and departures.  It was this information that the appellant believed would help him determine whether union members were working overtime in violation of their collective agreement.  For the reasons set out in my analysis of the general definition of “personal information”, the time entries made in the sign-in logs thus constitute “other personal information” within the meaning of the Privacy Act .

 

82               As noted above, the Court of Appeal also held that disclosing the names on the sign-in logs would itself reveal information about the individual in contravention of the second branch of the test set out in para. (i).  Isaac C.J. explained, at pp. 223-24:

 

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 specific times. . . .  I have no doubt that this information is personal and relates to identifiable individuals.

 

From a purely technical standpoint, this analysis is misleading.  The Court of Appeal seems to have considered the disclosure of the names together with the times of ingress and egress recorded in the logs.  The second branch of para. (i) refers, however, to the “disclosure of the name itself”.  The passage quoted above, therefore, is more properly characterized as relating to the first branch of para. (i).

 


83               The proper question to be asked in relation to the second branch is whether the disclosure of the names themselves, i.e., without the time entries or signatures, would disclose information about the individual.  On a plain reading, it is obvious that it would.  In his access to information request, the appellant asked for copies of the logs signed by employees on specific days.  Even if the Minister disclosed only the names of the employees listed on those logs, the disclosure would reveal that certain identifiable persons attended their workplace on those days.  The disclosure of the names would thus “reveal information about the individual” within the meaning of the second part of para. (i).

 

84               The appellant argues, however, that this provision should be so read as to require that the disclosure of the name itself reveal personal information about the individual.  In his view, a literal interpretation of para. (i) fails to recognize that the disclosure of a document will always reveal some information about the individual by connecting him or her with other information contained in the document.  Such an interpretation, he states, would prohibit any disclosure where the name revealed any information whatsoever about the individual.  In the result, names on documents would invariably constitute “personal information”.

 

85               I cannot accept this submission.  Paragraph (i) clearly states that a record is personal information if the disclosure of the name itself would reveal information about the individual.  It simply does not require this information to be “personal”.  Notably, the first part of para. (i) does refer to “personal” information that appears with the name of the individual.  It is highly unlikely that the drafters of this provision would have inadvertently omitted to include the word “personal” in the second part of para. (i) when they included it in the first.

 


86               In any event, it is apparent that the disclosure of the names themselves would reveal “personal” information.  As I have discussed, even if the time entries were not included in the disclosure, the names would reveal that certain employees attended their workplace on particular days.  This constitutes “information about an identifiable individual” within the meaning of s. 3  of the Privacy Act .  Indeed, each of the examples set out in paras. (a) to (i) is simply that -- an example of information about identifiable individuals that is typically kept in government records.

 

87               Underlying the appellant’s objection to this straightforward interpretation of para. (i) is the notion that the inclusion of records containing the names of individuals would prevent the disclosure of an unjustifiably broad array of government documents.  As will be discussed later, however, s. 3 (j)(iv) of the Privacy Act  specifically exempts “the name of the individual on a document prepared by the individual in the course of employment” from the definition of “personal information”.  There is no danger, therefore, that the names of government officials will be kept secret merely because they are contained on documents prepared by those individuals in the course of employment.

 

Is the Requested Information Excluded from the Definition of “Personal Information”?

 

88               The appellant submits that, even if the information he requested is prima facie “personal information”, it falls into the exemption provided in s. 3 (j) of the Privacy Act .  That provision states:

 

3.  . . .

 

“personal information” . . . .

 

. . . 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. . . .

 

Specifically, the appellant contends that the sign-in logs are captured by the general opening words of para. (j) as well as the specific examples set out in subparas. (iii) and (iv).

 

89               Before dealing with the merits of these submissions, it is necessary to consider a procedural question.  In the Court of Appeal, Isaac C.J. held that once it is determined that a record is prima facie personal information, the onus of establishing that one of the exceptions applies lies with the person making the access request.  Similar conclusions were reached in Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), [1996] 1 F.C. 268 (T.D.), at p. 283; Sutherland v. Canada (Minister of Indian and Northern Affairs), [1994] 3 F.C. 527 (T.D.), at p. 539; Terry v. Canada (Minister of National Defence) (1994), 86 F.T.R. 266, at p. 269; and MacKenzie v. Canada (Minister of National Health and Welfare) (1994), 88 F.T.R. 52, at pp. 55-56.

 


90               Section 48  of the Access to Information Act , however, places the onus on the government to show that it is authorized to refuse to disclose a record.  The Act makes no distinction between the determination as to whether a record is prima facie personal information and whether it is encompassed by one of the exceptions.  As a result, it is clear that even where it has been shown that the record is prima facie personal information, the government retains the burden of establishing that a record does not fall within one of the exceptions set out in s. 3 (j).

 

91               That being said, it remains to determine whether the Minister has discharged his onus of showing that the information does not fall into one of the exemptions.  Reading the opening clause of para. (j) in conjunction with subpara. (iii), it is apparent that information about government employees that relates to their position and function, including the responsibilities of their position, does not constitute “personal information”.  The appellant and his supporting intervener contend that information about hours of work relates to employees’ position or function.  Such information, they assert, reveals that it is a requirement of their positions that they work overtime or on weekends.

 

92               In considering this issue, it is helpful to characterize the precise nature of the information requested.  The sign-in logs reveal the presence of certain employees during specified hours on the weekends.  They do not indicate whether those employees were working during those periods or whether any work performed constituted “overtime”.  At best, the logs disclose that certain individuals were likely, although not necessarily, required to work for some period during weekends.  They may also indicate a probability that these persons were working overtime.

 


93               In my view, this information does not relate to the positions or functions of government employees, or to the responsibilities associated with their positions.  In Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), supra, the court made a distinction between information relating to a position and that relating to an individual.  In that case, the head of the government institution revealed the names of persons named in a list of temporary employees.  The Privacy Commissioner found that the names constituted “personal information” and that the disclosure thus violated the Privacy Act .  In an attempt to avoid compounding this error, the department refused to release information on the security level attaching to the positions that these individuals occupied.  The court held, however, that the security classifications pertained to particular positions and not to the individuals who filled them.  Dubé J. stated the following, at pp. 399-400:

 

The Commissioner argues that security classification is a condition attached to the position itself and not to the individual and, as such, it is not personal information.  It is merely a minimum requirement and its inclusion on the call‑up form does not indicate the level of security clearance actually held by the employee, but merely that the employee has met the minimum clearance for that position.

 

The Department agrees that the security classification in question is a condition attached to the position, but submits that it is personal information as well, since the names of the individuals have already been revealed.

 

Clearly, security classification pertains to a position and not to the individual who applied for that position or who eventually filled it.  Personal information as defined in section 3  of the Privacy Act  means information relating to an individual whether it be his race, colour, religion, personal record, opinions, etc.  Nowhere does security classification fall within the heads of personal information listed under section 3  of the Privacy Act .  Even paragraph 3 (c), which deals with identifying numbers, symbols or other particulars, limits such particulars to the individual, not to the position held by the individual.  Thus, in my view, security classification is not information to be withheld on the ground that it is “personal information”.

 


94               This approach is fundamentally sound and is fully consistent with the wording and objects of the legislation.  The same approach, I pause to note, has been used in interpreting like language in the Newfoundland Freedom of Information Act, R.S.N. 1990, c. F-25, s. 10(2)(a); see Thorne v. Newfoundland and Labrador Hydro Electric Corp. (1993), 109 Nfld. & P.E.I.R. 233, at p. 235.  Section 3 (j) of the Privacy Act  expressly exempts information about an individual that relates to their position or functions.  Similarly, para. (iii) refers to “the classification, salary range and responsibilities of the position held by the individual”.  The purpose of these provisions is clearly to exempt only information attaching to positions and not that which relates to specific individuals.  Information relating to the position is thus not “personal information”, even though it may incidentally reveal something about named persons.  Conversely, information relating primarily to individuals themselves or to the manner in which they choose to perform the tasks assigned to them is “personal information”.  It has been held, for instance, that while a general report on the food service operations at a regional psychiatric centre should be released, the author’s opinions about specified individuals and their training, personality, experience or competence was “personal information” that was not exempted by s. 3 (j) of the Privacy Act . Canada (Information Commissioner) v. Canada (Solicitor General), supra.  Similarly, in Rubin v. Clerk of the Privy Council (Can.) (1993), 62 F.T.R. 287, the court held that while the salary range attaching to a position could be disclosed pursuant to s. 3 (j)(iii) of the Privacy Act , the specific salary or per diem remuneration paid to a particular government official could not.

 


95               Generally speaking, information relating to the position, function or responsibilities of an individual will consist of the kind of information disclosed in a job description.  It will comprise the terms and conditions associated with a particular position, including such information as qualifications, duties, responsibilities, hours of work and salary range.  (For an example of a job description, see Orth v. Macdonald Dettwiler & Associates Ltd. (1986), 16 C.C.E.L. 41 (B.C.C.A.), at pp. 44-46).  The information requested in the present case is not information about the nature of a particular position.  While it may give the appellant a rough, overall picture of weekend work patterns, it provides no specific, accurate information about any specific employee’s duties, functions or hours of work.  Rather, it reveals information about the activities of a specific individual which may or may not be work-related.  As already noted, the sign-in logs do not reveal whether any particular employee is working overtime.  In order to determine this, one would need to know whether the employee was actually working while on the premises and the number of hours he or she had worked during the week.

 

96               In any event, even if the logs can be said to record accurately an employee’s overtime hours, I am of the view that information concerning when an individual works overtime is “personal information”.  Whether a person works overtime, and for how long, relates to how he or she performs his or her duties and not to the responsibilities and functions inherent in the position itself.  An individual may work overtime for any number of different reasons, relating, for instance, to his or her productivity during normal working hours.  The specific hours worked by individual employees, therefore, reveal nothing about either the nature or quantity of their work.  In his letter to the appellant reporting the results of the investigation of his complaint, the Information Commissioner stated the following, which I endorse:

 

The information to which you seek to have access in this case does not, in my view, provide any insight into the positions held by nor the functions performed by the persons whose names appear on the sign-in sheets.  While it may indicate the hours during which they attended at their work premises on a given day, this is not the type of information which, in my view, Parliament intended should be publicly accessible.  To conclude otherwise would mean that a public official’s conditions of work  -- Does he or she work regular or compressed or flexible hours? What are the person’s break and meal periods? Has the person received medical or other special leave? -- could become matters of public record.  That would go far beyond the spirit and intent of this derogation which, in my view, is to ensure that the public can conduct business with identifiable, not anonymous, public officials.  The information at issue here is not at all about the nature of the work of named public officials but only about their whereabouts at a specific time.  There is simply no indication that Parliament intended this derogation to be interpreted in a way which would result in public officials being subjected to a form of physical surveillance through records disclosure.

 


97               This conclusion is consistent with the purposes of the Access to Information Act  and the Privacy Act .  As discussed above, the collective purpose of the legislation is to provide Canadians with access to information about the workings of their government without unduly infringing individual privacy.  As noted by Jerome A.C.J. in Canada (Information Commissioner) v. Canada (Solicitor General), supra, at p. 557, s. 3 (j) of the Privacy Act  does not exempt government employees from this general rule of privacy.  The fact that persons are employed in government does not mean that their personal activities should be open to public scrutiny.  By limiting the release of information about specific individuals to that which relates to their position, the Act strikes an appropriate balance between the demands of access and privacy.  In this way, citizens are ensured access to knowledge about the responsibilities, functions and duties of public officials without unduly compromising their privacy.

 

98               The intervener PSAC argues, however, that there are compelling policy reasons for disclosure in this case.  In its view, the disclosure of employment-related information is designed, in part, to ensure that the operation of the Access to Information Act  and Privacy Act  is consistent with the collective bargaining regime.  The disclosure of the information requested by the appellant, it submits, would facilitate bargaining agents in exercising their rights and ensure that the public is able to determine whether public servants are appropriately compensated for their work.

 


99               I do not find this argument convincing.  It is true that there is a general public interest in the smooth functioning of the collective bargaining process and in ensuring that employers, including those in the public sector, live up to their obligations under collective agreements.  I do not believe, however, that this interest is embodied in the access to information or privacy statutes.  As I have discussed, the Access to Information Act  is concerned with securing the values of participation and accountability in the democratic process.  Of course, collective bargaining plays an important role in the democratic system.  However, it is in many ways an autonomous regime, with its own enabling legislation and comprehensive system of dispute resolution.  This system attempts to mediate the conflict between the private interests of employers and the private, collective interests of workers.  In this sense, a union’s interest in obtaining helpful information from its employer is no greater than the employer’s interest in obtaining like information.  Conflicts regarding such information should be resolved within the confines of that system, i.e., by recourse to the usual dispute resolution methods of labour relations -- negotiation, arbitration and administrative review.  There is no indication that access to information legislation was intended to enable one side in this conflict to obtain information that it would not otherwise be entitled to under the collective bargaining system.  It is acceptable, of course, if the legislation permits this incidentally, i.e. by permitting someone with a particular private interest to benefit because disclosure accords with the public goals of the legislation.  The legislation should not be interpreted, however, with the collective bargaining system specifically in mind.  In my view, the fact that disclosure of the sign-in logs in this case would be helpful to the union is not relevant to determining whether the information relates to an employee’s position or functions within the meaning of s. 3 (j) of the Privacy Act .

 


100             The appellant also argues that the names on the sign-in logs fall within the scope of s. 3 (j)(iv) in that they constitute a “document prepared by . . . individual[s] in the course of employment”.  This argument has little merit.  Firstly, it is misleading to say that the sign-in logs are “prepared” by the employees who sign them.  As disclosed in the evidence, the sign-in logs are the responsibility of the Corps of Commissionaires security officers.  Secondly, the logs are not made “in the course of employment”.  As noted above, the sign-in logs are designed for security purposes.  Employees are required to fill them out in order to gain access to the building.  They have nothing to do with the responsibilities of their positions.  For the same reasons that the logs do not relate to the employees’ positions, functions or responsibilities, they should not be considered to have been prepared “in the course of employment”.

 

Did the Minister Exercise his Discretion Properly?

 

101             The appellant submits that the Minister failed to exercise his discretion properly in refusing to disclose the requested information pursuant to s. 19(2) (c) of the Access to Information Act  and s. 8(2) (m)(i) of the Privacy Act Section 19(2) (c) of the Access to Information Act  states that the head of a government institution may disclose a record that contains personal information if the disclosure is in accordance with s. 8  of the Privacy Act Section 8 , in relevant part, states:

 

8.  . . .

 

(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. . . .  [Emphasis added.]

 

102             The appellant argues that there is no evidence that the Minister weighed the privacy interests of the employees whose names appeared on the sign-in logs against the public interest in disclosure.  He asserts that if the Minister had properly exercised his discretion, he would have concluded that the public interest in disclosure clearly outweighed the minimal invasion of privacy that would have resulted.

 


103             The first step in evaluating this submission is to determine the appropriate standard of review of the Minister’s decision.  The appellant notes that pursuant to s. 2  of the Access to Information Act , decisions on the disclosure of government information “should be reviewed independently of government”.  He also relies on the fact that s. 48 of that statute specifies that “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”.  From this, the appellant argues that the Minister’s exercise of discretion under s. 8(2) (m) of the Privacy Act  should be strictly limited by the courts.

 


104             The determination of the appropriate standard of review of discretionary decisions under the Access to Information Act  has been the source of considerable controversy in the Federal Court.  In a number of decisions, the court has implied that discretionary decisions are to be reviewed on a correctness or de novo standard.  In Rubin v. Canada (Canada Mortgage and Housing Corp.), supra, the Federal Court of Appeal considered the effect of s. 21(1) (b) of the Access to Information Act .  That provision states that the head of a government institution may refuse to disclose a record that contains “an account of consultations or deliberations” involving Crown employees or officers.  The court held, at p. 273, that the exercise of this discretion was “not unfettered” and that it must be exercised in accordance with “recognized legal principles” and “in a manner which is in accord with the conferring statute”.  In considering whether the minutes of the CMHC’s Board meeting from 1975 to 1988 should have been disclosed pursuant to s. 21(1) (b), the court concluded that the sheer volume of the material involved indicated that the delegate of the Corporation did not make a proper examination and determination as to whether any of the information requested came within the parameters of the provision.  It was also apparent from the position taken by the General Counsel and Corporate Secretary of the CMHC, the court found, that the CMHC concluded that the records could be withheld without actually examining the material.  The court rejected the holding in Canada (Information Commissioner) v. Canadian Radio-television and Telecommunications Commission, [1986] 3 F.C. 413 (T.D.), that once it is determined that a record falls within the class referred to in s. 21(1) , the right to disclosure becomes subject to the head of the government institution’s discretion to disclose it.  Such a conclusion, the court held, ignores the directive expressed in s. 2 of the Act that decisions respecting access to public documents are to be reviewed “independently of government”.  Accordingly, the court overturned the decision to withhold the records and referred the matter back to the delegate of the CMHC for redetermination.

 

105             The Rubin case was relied on by Muldoon J. in Bland, supra, where he considered the provision at issue in the instant case, s. 8(2) (m)(i) of the Privacy Act .  In Bland, a newspaper reporter investigating allegations of favouritism in the allocation of subsidized rents by the National Capital Commission (“NCC”) was denied access to a list of the addresses and rental charges of NCC tenants on the grounds that it was “personal information”.  Curiously, although he held that the information related to a “discretionary benefit of a financial nature” pursuant to s. 3 (l) of the Privacy Act  and did not therefore constitute “personal information”, Muldoon J. also found that even if it was, it should have been disclosed pursuant to s. 8(2) (m)(i).  In coming to this conclusion, the court found, at p. 340, that the mere assertion that the public interest in disclosure did not outweigh the invasion of privacy was not sufficient as it “evinces no weighing of the factor of invasion of privacy against that of the public interest in disclosure”.  He went on to conclude that the tenant’s privacy interest was negligible and that any invasion of it was clearly outweighed by the public interest in disclosure.  See also Rubin v. Clerk of the Privy Council (Can.), supra, at p. 291, and MacKenzie v. Canada (Minister of National Health and Welfare), supra, at p. 57.

 


106             To the extent that these decisions can be said to stand for the proposition that the Minister’s decision to refuse to disclose a record pursuant to the public interest exception set out in s. 8(2) (m)(i) of the Privacy Act  is to be reviewed on a de novo standard, they are clearly incorrect.  It is true, of course, that s. 2(1)  of the Access to Information Act  states that “decisions on the disclosure of government information should be reviewed independently of government”.  Reading the Act as a whole, however, it is clear that this exhortation does not mandate the de novo review of the s. 8(2) (m)(i) discretion.  Section 49  of the Access to Information Act  sets out the power of the Federal Court to order disclosure in the circumstances of the present case:

 

49.  Where the head of a government institution refuses to disclose a record requested under this Act or a part thereof on the basis of a provision of this Act not referred to in section 50, the Court shall, if it determines that the head of the institution is not authorized to refuse to disclose the record or part thereof, order the head of the institution to disclose the record or part thereof, subject to such conditions as the Court deems appropriate, to the person who requested access to the record, or shall make such other order as the Court deems appropriate.  [Emphasis added.]

 


107             Section 49  directs the reviewing court to determine whether or not the head of the government institution who has refused disclosure was in fact “authorized” to do so.  As I have discussed, the Access to Information Act  provides a general right of access to government-held information, subject to certain exceptions.  If the information does not fall within one of these exceptions, the head of the institution is not “authorized” to refuse disclosure, and the court may order that the record be released pursuant to s. 49 of the Act.  It is clear that in making this determination, the reviewing court may substitute its opinion for that of the head of the government institution.  The situation changes, however, once it is determined that the head of the institution is authorized to refuse disclosure.  Section 19(1)  of the Access to Information Act  states that, subject to s. 19(2) , the head of the institution shall refuse to disclose personal information.  Section 49  of the Access to Information Act , then, only permits the court to overturn the decision of the head of the institution where that person is “not authorized” to withhold a record.  Where, as in the present case, the requested record constitutes personal information, the head of the institution is authorized to refuse and the de novo review power set out in s. 49  is exhausted.

 

108             Of course, s. 19(2)  of the Access to Information Act  provides that the head of a government institution may disclose personal information in certain circumstances.  Generally speaking, the use of the word “may”, especially when it is used, as in this case, in contradistinction to the word “shall”, indicates that an administrative decision maker has the discretion, and not the duty, to exercise a statutory power; see McHugh v. Union Bank of Canada, [1913] A.C. 299 (P.C.); Smith & Rhuland Ltd. v. The Queen, on the relation of Brice Andrews, [1953] 2 S.C.R. 95; Interpretation Act, R.S.C., 1985, c. I-21 , s. 11 .

 


109             In the present case, moveover, any ambiguity regarding the use of the word “may” is removed by the language of s. 8(2) (m)(i) of the Privacy Act .  That section, which is incorporated into s. 19(2) (c) of the Access to Information Act , states that personal information may be disclosed where, in the opinion of the head of the institution, the public interest in disclosure clearly outweighs the invasion of privacy that could result.  It is difficult to imagine statutory language setting out a broader discretion.  Courts have repeatedly held that the use of such language indicates a discretionary power; see Boulis v. Minister of Manpower and Immigration, [1974] S.C.R. 875; Vancouver (City of) v. Simpson, [1977] 1 S.C.R. 71; Isinger v. Buckland (Rural Municipality No. 491) (1986), 48 Sask. R. 207 (C.A.); Re Michelin Tires Manufacturing (Canada) Ltd. (1975), 13 N.S.R. (2d) 587 (S.C.T.D.).  And in a series of decisions, the Federal Court has specifically found that the power to disclose personal information in the public interest pursuant to s. 8(2) (m)(i) of the Privacy Act  is discretionary; see Canadian Jewish Congress v. Canada (Minister of Employment and Immigration), supra; Sutherland v. Canada (Minister of Indian and Northern Affairs), supra; Terry v. Canada (Minister of National Defence), supra; Grand Council of the Crees (of Quebec) v. Canada (Minister of External Affairs and International Trade), [1996] F.C.J. No. 903 (QL).

 

110             In Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147, Strayer J. discussed the general approach to be taken with respect to discretionary exemptions under the Privacy Act .  He stated, at p. 149:

 

It will be seen that these exemptions require two decisions by the head of an institution:  first, a factual determination as to whether the material comes within the description of material potentially subject to being withheld from disclosure; and second, a discretionary decision as to whether that material should nevertheless be disclosed.

 

The first type of factual decision is one which, I believe, the court can review and in respect of which it can substitute its own conclusion.  This is subject to the need, I believe, for a measure of deference to the decisions of those whose institutional responsibilities put them in a better position to judge the matter. . . .

 

The second type of decision is purely discretionary.  In my view in reviewing such a decision the court should not itself attempt to exercise the discretion de novo but should look at the document in question and  the surrounding circumstances and simply consider whether the discretion appears to have been exercised in good faith and for some reason which is rationally connected to the purpose for which the discretion was granted.

 

In my view, this is the correct approach to reviewing the exercise of discretion under s. 8(2) (m)(i) of the Privacy Act .

 


111             The fact that a statutory power is discretionary does not mean, of course, that a decision made pursuant to it is immune from judicial oversight.  It may always be alleged that the discretion was abused.  The correct standard of review was articulated by McIntyre J. in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pp. 7-8:

 

It is . . . a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility.  Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

 

See also Vancouver (City of) v. Simpson, supra.

 

112             The appellant makes no allegations of bad faith, unfair procedure or consideration of irrelevant matters.  Rather, he contends that the Minister failed to weigh the privacy interests of the employees named on the sign-in logs against the public interest in disclosure.  It is clear, however, that the Minister did carefully weigh the competing policy interests in the present case.  The appellant’s request to the Minister to exercise his discretion to disclose the personal information was made in the following terms:

 

Disclosure of the names is in the public interest because it enables citizens to determine who is working, who authorized the work and prevents abuse of staff by overzealous managers and upholds the spirit of the collective agreement.  Thus the names on the sign-in sheets should be disclosed.

 

The Minister’s reply stated:

 

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.  [Emphasis added.]

 


113             There is no evidence, as was the case in Rubin, supra, that the Minister failed to examine the evidence properly.  It is apparent that he considered the appellant’s request for a public interest waiver in the light of the objects of the legislation and came to a determination that the public interest did not “clearly outweigh” the violation of privacy that could result from disclosure.  This was a conclusion that he was entitled to make.  For this Court to overturn this decision would amount to a substitution of its view of the matter for his.  Such a result would do considerable violence to the purpose of the legislation and would amount to an unjustified usurpation of the Minister’s statutory role.

 

114             In essence, the appellant’s objection to the Minister’s decision is that he did not give sufficient reasons for it.  Generally speaking, however, in the absence of a specific statutory requirement, administrative decision makers have no duty to give reasons for their decisions; see Supermarchés Jean Labrecque Inc. v. Flamand, [1987] 2 S.C.R. 219, at p. 233; Canadian Arsenals Ltd. v. Canadian Labour Relations Board, [1979] 2 F.C. 393 (C.A.); Macdonald v. The Queen, [1977] 2 S.C.R. 665; Northwestern Utilities Ltd. v. City of Edmonton, [1979] 1 S.C.R. 684.  While it has been suggested that the failure to give reasons, even when there is no statutory requirement to do so, may amount to a breach of the duty to be fair in certain circumstances (David P. Jones and Anne S. de Villars, Principles of Administrative Law (2nd ed. 1994), at p. 299), the Minister’s failure to give extensive, detailed reasons for his decision did not work any unfairness upon the appellant.

 


115             Finally, it should be noted that in oral argument before this Court, the respondent is said to have asserted that by stating that he did “not believe that [the appellant] . . . demonstrated that if there were any public interest that it clearly overrides the individual’s right to privacy”, the Minister incorrectly reversed the onus set out in s. 48  of the Access to Information Act .  That provision states that the head of a government institution has the burden of establishing that he or she is “authorized to refuse” to disclose a requested record.  As I have discussed in relation to s. 49 of that Act, the Minister satisfied this burden when he showed that the information in the sign-in logs constituted “personal information”.  Once that fact is established, the Minister’s decision to refuse to disclose pursuant to s. 8(2) (m)(i) of the Privacy Act  may only be reviewed on the basis that it constituted an abuse of discretion.  The Minister did not have a “burden” to show that his decision was correct because that decision is not reviewable by a court on the correctness standard.  Reading his statement in context, it is clear that the Minister weighed the conflicting interests at stake.  The fact that he stated that the appellant failed to demonstrate that the public interest should override the privacy rights of the employees named in the sign-in logs is therefore irrelevant.

 

Disposition

 

116             From the foregoing, I have concluded that the appeal should be dismissed.  It remains to consider the special provision regarding costs set out in s. 53(2)  of the Access to Information Act .  It states that “[w]here the Court is of the opinion that an application for review under section 41  or 42  has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result”.  Though ultimately unsuccessful, I believe that the appellant has raised a number of important and novel legal issues.  Under the circumstances, it would be appropriate to award costs to the appellant from the respondent.

 

117             Accordingly, I would dismiss the appeal, but would award the appellant’s costs from the respondent.


Appeal allowed, La Forest, L’Heureux‑Dubé, Gonthier and Major JJ. dissenting.

 

Solicitors for the appellant:  Soloway, Wright, Ottawa.

 

Solicitor for the respondent:  The Attorney General of Canada, Ottawa.

 

Solicitors for the intervener the Privacy Commissioner of Canada:  Nelligan, Power, Ottawa.

 

Solicitors for the intervener the Public Service Alliance of Canada:  Raven, Jewitt & Allen, Ottawa.

 

 

 

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