The name of an individual is considered personal information if it is accompanied by information that is about the individual
Complaint under the Privacy Act (the Act)
February 11, 2019
- The complainant alleges that the respondent government institution, the Canadian Transportation Agency (the CTA), inappropriately invoked exemptions to disclosure under paragraph 12(1)(b), sections 26 and 27, and subsection 70(1) of the Act in response to his request for access to personal information.
Summary of Investigation
- The complainant is an air passenger rights advocate who regularly initiates and participates in complaints and other proceedings before the CTA and in litigation before the Federal Court involving air passenger rights issues. As part of his advocacy activities, the complainant operates a website on behalf of an organization, which is described on the website as “an independent nonprofit network of volunteers, spearheaded and coordinated by [the complainant].”
- The complainant submitted his request to the CTA on September 23, 2016, requesting access to the following personal information: “All records about myself, including but not limited to records referring to my first and/or last name (with or without the accented characters in my name).” The complainant specified that the date range for the requested information was January 1, 2015, to September 23, 2016.
- In his written request, the complainant clarified that he was not seeking access to records that have been served on him in proceedings before the Federal Court of Appeal or the CTA or that were otherwise previously provided to him. Additionally, in an email dated October 11, 2016, the complainant further clarified that the CTA may exclude from its response to his request any letters or emails sent by the complainant to the CTA where there is no other context included (e.g., an email string).
- On November 22, 2016, the CTA’s Director of Information Management and Technical Services responded to the complainant, providing access to 33 full or partial pages of records, but withholding 760 pages of records in their entirety pursuant to paragraph 12(1)(b), sections 26 and 27, and subsection 70(1) of the Act.
- In its response, the CTA informed the complainant that it is of the view that most of the information it located in response to his request does not qualify as his personal information for the following reason:
I note that most references to your name in Agency records were made by Agency staff and members in preparing responses to your submissions made as a consumer rights advocate on behalf of the organization … I do not consider your submissions made in this representative capacity, nor internal Agency discussions aimed at responding to these submissions, to constitute personal information, as such submissions do not implicate “the values and rights to privacy is intended to protect (i.e., an individual’s personal intimacy, identity, dignity and integrity).
In conclusion, I have decided that references to your name as cited in your request are not considered personal information to which you have a right to access under the Privacy Act when the citations or references are a result of a deliberation or consultation on a regulatory or adjudicative matter that you have brought before or to the attention of the Agency, unless there are implications on the values of an individual’s personal intimacy, identity, dignity and integrity.
- In its representations during the course of our investigation, the CTA relied on the same reasoning. The CTA also claimed exemptions over a portion of the information under sections 26 (third party personal information) and 27 (solicitor-client privilege) of the Act, as well as a one-page record exempted under subsection 70(1) of the Act, which applies to information that can be considered a cabinet confidence.
- At the outset of our investigation, the CTA agreed that it would conduct a secondary review of the records at issue in order to determine whether additional information could be disclosed to the complainant. The CTA completed its review in November 2017 and, although it rescinded its application of sections 26 and 27 in some cases, it remained of the view that all of the withheld information was nevertheless exempted under paragraph 12(1)(b) because it did not constitute the complainant’s personal information (with the exception of page 763, which the CTA indicated that it was willing to release to the complainant).
- The CTA provided us at that time with an updated version of the records showing the revised exemptions being claimed – including that it is now relying on paragraph 12(1)(b) with respect to all of the withheld records – along with a chart outlining the changes to the exemptions.
- As part of our investigation, the CTA provided us with copies of the unredacted records for our review, with the exception of those withheld under section 27. The CTA initially declined to provide us with the information that was withheld under this provision, citing concerns that doing so could constitute a waiver of the claimed solicitor-client privilege. However, the CTA ultimately allowed our investigator to review the records withheld under section 27 at its premises with the express understanding that the CTA was not waiving privilege.
- In making our determination, we considered the definition of personal information in section 3, as well as paragraph 12(1)(b), sections 26 and 27, and subsection 70(1) of the Act.
- Section 3 of the Act defines personal information as information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing: information relating to race, national or ethnic origin, colour, religion, age, marital status, education, medical, criminal or employment history, financial transactions, identifying numbers, fingerprints, blood type, personal opinions, etc. Personal information also expressly includes “the views or opinions of another individual about the individual” (paragraph (g)), and “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” (paragraph (i)).
- Paragraph 12(1)(b) of the Act provides a right of access for individuals to any personal information about themselves that is under the control of a government institution, so long as the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.
- Section 26 of the Act provides that the head of a government institution may refuse to disclose any personal information requested under subsection 12(1) about an individual other than the individual who made the request, and shall refuse to disclose such information where the disclosure is prohibited under section 8. However, for the purposes of section 26, the definition of personal information excludes “information about an individual who is or was performing services under contract for a government institution that relates to services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services” (paragraph (k) of the definition of personal information).
- Section 27 of the Act provides that the head of a government institution may refuse to disclose any personal information requested under subsection 12(1) that is subject to solicitor-client privilege.
- Subsection 70(1) of the Act exempts records containing confidences of the Queen’s Privy Council for Canada (cabinet confidences) from the application of the Act, including “discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions” (paragraph (b)).
Is the information at issue the complainant’s personal information?
- The CTA’s position, as revised in its November 2017 review of the records, is that all of the information it withheld was properly exempted under paragraph 12(1)(b) of the Act because the information is not the complainant’s personal information as defined in section 3. The CTA argues that the complainant’s name should not be considered his personal information where it relates to a deliberation or consultation on a regulatory or adjudicative matter that he brought before or to the attention of the CTA on behalf of an organization.
- We note that subsection 12(1) is not an exemption, but rather a provision that sets out the right of access. As such, properly understood, the CTA’s position is that the complainant is not entitled to the information because it is not his personal information under the Act and therefore falls outside of the scope of the information that is accessible under subsection 12(1).
- The CTA’s position is based on the premise that the complainant was acting on behalf of an organization rather than in his individual capacity. We note, however, that the evidence indicates that the organization is not a separate entity. The complainant confirmed that the organization is not incorporated as a separate legal entity and that all complaints filed with the CTA and any litigation that took place were all lodged under his own name.
- Having reviewed the records that were withheld by the CTA as non-personal information, we can confirm that the complainant’s name or direct references to him (rather than to the organization) appear on all of the records at issue. Moreover, in many cases the information that has been withheld contains views about the complainant’s conduct or other information about the complainant, including how the CTA handled his submissions and information the CTA has collected about the complainant (for instance, from news articles).
- We are of the view that this information falls within the definition of personal information as defined in section 3 of the Act and that the Act was intended to provide a right of access to it, subject to other applicable exemptions.
- We accept that just because a document contains a person’s name does not necessarily mean that it constitutes “personal information” under the Act.Footnote 1 However, if the name is accompanied – as it is in the majority of the records at issue in this case – by information that is about the individual or the disclosure of the name itself would reveal information about the individual then it will be considered personal information.Footnote 2
- In support of its position, the CTA also cited both the Federal Court of Appeal’s decision in Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board),  1 FCR 203, 2006 FCA 157 (“NAV CANADA”) and the Federal Court’s decision in Canada (Privacy Commissioner) v. Canada (Labour Relations Board),  3 FCR 609 (“Labour Relations Board”) in its written representations.
- We are of the view that the matter at hand is distinguishable from the two cases cited by the CTA. In NAV CANADA, third parties, including journalists, were seeking access under the Access to Information Act to air traffic control recordings relating to air accidents that had been investigated by the Canadian Transportation Accident Investigation and Safety Board, which the Board had refused to disclose on the basis that they contained personal information. The Federal Court of Appeal found that the information consisted of information “about the status of the aircraft, weather conditions, matters associated with air traffic control and the utterances of the pilots and controllers” (para. 53) and that this was “non-personal information transmitted by an individual in job related circumstances” (para. 54). The Court ultimately found that the information did not engage the right to privacy of individuals, which was said to connote “concepts of intimacy, identity, dignity and integrity of the individual” (paras. 52-53), and ordered that it be disclosed.
- In contrast, in the case at hand, the information at issue concerns the complainant directly and internal discussions of his submissions and activities by the CTA. The information is therefore not of the same nature as the technical air traffic control information discussed in the NAV CANADA case.
- In Labour Relations Board, what was at issue was a request for access to notes taken by Governor in Council members of the Labour Relations Board. The information at issue in this case is of a different nature and consists largely of communications between CTA staff members, not notes taken by decision-makers that would be covered by adjudicative privilege. In any event, while the CTA has cited the Federal Court decision for the position that consultations and deliberations of decision-makers are excluded from the definition of personal information, the Federal Court of Appeal decided the case on narrower grounds. The Court of Appeal ultimately found that the notes taken by Governor in Council appointees in the course of quasi-judicial proceedings and which were not part of the official record were not “under the control” of the Board (2000 CanLII 15487). The CTA has not claimed that the records at issue are not under its control in the matter at hand.
- For these reasons, we believe that the CTA has incorrectly relied on the definition of personal information in section 3 and paragraph 12(1)(b) of the Act to withhold information from the complainant.
- Where the CTA has claimed that the information in question is not the complainant’s personal information, it has, in a number of instances, also exempted some of the same information under section 26 and/or section 27, and in one case, has exempted information under subsection 70(1) of the Act. We must therefore also consider the exemptions that the CTA has used to withhold information.
Did the CTA correctly withhold information under sections 26, 27, and subsection 70(1) of the Act?
- As already indicated, our investigator was ultimately provided with the opportunity to review all information that was withheld by the CTA under sections 26 and 27 of the Act.
- On the whole, we are of the view that the CTA has correctly withheld third party personal information under section 26 of the Act. However, we note that in one instance – on page 463 of the records at issue – the name and business contact information of the sender of an email who appears to have been working under contract to the CTA has been withheld under section 26, although the contents of the email were disclosed to the complainant.
- According to paragraph 3(k) of the Act, information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services is excluded from the definition of personal information. We are therefore of the view that the information withheld under section 26 on page 463 should be disclosed to the complainant.
- With respect to the application of section 27 of the Act, upon review of the information at issue, we are satisfied that, on the whole, the content of the communications that were withheld under section 27 were properly exempted from disclosure as they contain legal advice communications between a lawyer and client.
- However, we noted that in many instances the CTA has withheld entire records under section 27 of the Act, including the names and email addresses of the senders and recipients of emails as well as the date of and time of transmission. This information would not normally be privileged, as it does not reveal the contents of the communications. In our view, this information does not qualify for exemption under section 27.
- Only one page (p. 254) has been withheld under subsection 70(1) of the Act. The record consists of email correspondence between CTA staff regarding budget matters. In its written representations, the CTA advised that this record contained discussion of a document that was destined for Cabinet and that its purpose was to present background explanations, analyses of problems or policy options to the Queen’s Privy Council for Canada for consideration by the Council in making decisions. In the CTA’s view, the email constitutes a “discussion paper” within the meaning of paragraph 70(1)(b) of the Act.
- Having viewed the contents of the record, we are not convinced, based on the information that has been provided by the CTA, that it constitutes a cabinet confidence. There is no evidence that the email correspondence was submitted or intended to be submitted, to cabinet nor, despite CTA’s assertion, does the correspondence make reference to a document intended for cabinet.
- We also note that applicable Treasury Board policy requires a mandatory consultation with the Privy Council Office when a document is considered to be a “discussion paper,”Footnote 3 which the CTA did not do in this case. Although the lack of consultation is not determinative, the result is that there is also no evidence that the Privy Council Office considers the email to be a “discussion paper.”
- We are therefore of the view that the CTA has failed to establish that this particular record is excluded from the Act under subsection 70(1) of the Act. This said, we note that only one paragraph of the email correspondence contains a reference to the complainant. In our view, only this paragraph is required to be released to the complainant and the remainder may be severed.
- We are of the view that the CTA has erred in withholding information in the records at issue marked as “s. 12(1)(b)” as non-personal information. The CTA has also not established that it properly invoked subsection 70(1) of the Act to withhold information. We therefore find the complaint to be well-founded.
- We are of the view that the information that has been withheld by the CTA under sections 26 and 27 has been properly exempted from disclosure with the exception of the information on page 463 and the information relating to the senders and recipients as well as the date of and time of transmission of emails (i.e., non-content related information) that has been withheld under section 27.
- We recommended that the CTA provide the complainant with access to the information that has been marked as “s. 12(1)(b)” in the records at issue subject to the other claimed exemptions. This should include page 763, which the CTA has already indicated that it was willing to release to the complainant.
- We also recommended that the CTA reconsider the application of section 26 of the Act to the information relating to the contractor that was withheld on page 463 of the records at issue.
- With respect to the information that was withheld under section 27 of the Act, we recommended that the sender, recipient, and date and time information contained in these records that is not properly subject to solicitor-client privilege be disclosed to the complainant.
- Finally, we recommended releasing the portion of the email correspondence that has been withheld under subsection 70(1) of the Act that refers to the complainant by name.
- The CTA responded to our recommendations by advising that although its maintains its initial position that the information withheld under section 12 of the Act does not constitute the complainant’s personal information, it will nevertheless implement the recommendations by disclosing the following information to the complainant:
- Information previously withheld under section 12 where the complainant’s name or organization is mentioned, including page 763, which the CTA has already agreed to release;
- Information relating to the contractor that was withheld on page 463;
- The portion of the email correspondence that was withheld under subsection 70(1) that refers to the complainant by name; and
- General identifying information such as the sender, recipient and date and time that was withheld under section 27 of the Act.
- The CTA originally advised that it aimed to release this information to the complainant by February 25, 2019, but subsequently suggested that it may need additional time, proposing a date of March 1, 2019, for the release.
- Given the CTA’s positive response to our recommendations, we now consider this matter conditionally resolved. This finding is conditional based on the understanding that the CTA will provide the complainant with a complete response on or before March 1, 2019.
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