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Privacy Commissioner George Radwanski writes to Information Commissioner John Reid regarding Prime Minister's agendas case

Ottawa, May 10, 2001 - The Privacy Commissioner of Canada, George Radwanski, sent the following letter today to Information Commissioner John Reid:

Dear Commissioner Reid:

After a great deal of reflection, I have concluded that it is appropriate and necessary to share with you my concerns regarding your approach to the matter of the Prime Minister's agendas.

I believe that this matter raises very serious and disturbing issues with regard to privacy rights. I will address the legal aspects of these issues in due course by seeking leave to intervene in the judicial process, if that process continues.

The purpose of this letter, however, is to focus on aspects of principle and reasonableness that I hope might persuade you to reconsider your course.

Your responsibilities as Information Commissioner are important ones, as are mine as Privacy Commissioner. I am sure you will agree with me that we should carry out our respective duties with the strongest possible sense of perspective, fairness and sensitivity to the impacts our actions will have on the lives of individual Canadians.

My duty as Privacy Commissioner of Canada is to champion and defend the legitimate privacy rights of every Canadian, whether it be an unemployed labourer or the Prime Minister of our country. And part of that duty is to insist that Canadians do not forfeit their fundamental privacy rights simply by holding public office.

Inevitably, there are instances where access to information and privacy rights come into conflict. Except when there are over-riding public interest considerations such as public safety, it is my profound conviction - and our courts have consistently taken a similar view - that privacy must take precedence. In fact, the Supreme Court has held 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."

Access to information is an administrative right that may lead to better government. Privacy is a fundamental human right that is essential to freedom and dignity.

Privacy is "at the heart of liberty in a modern state," as Justice La Forest of the Supreme Court has said. That is why privacy is not only an individual right - it is also a shared value, a social, public good. Our society as a whole has a stake in the preservation of privacy.

As I have often said, none of us wants to go through life feeling that at any moment someone may be, either metaphorically or literally, looking over our shoulder. If we have to weigh every action, every purchase, every statement, every human contact, wondering who might find out about it, judge it, misconstrue it, or somehow use it to our detriment, we are not truly free.

It is from this perspective that your pursuit of agendas is totally unacceptable.

An agenda - the record of all an individual's meetings and activities throughout each day - is indisputably personal information about that individual and is therefore, in my view, protected under the Privacy Act.

Personal information is defined in Section 3 of the Privacy Act, which states: ".personal information means information about an identifiable individual that is recorded in any form."

For the purposes of the Access to Information Act, paragraph (j) of the definition of personal information in the Privacy Act excludes from this definition "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."

In Dagg v. Canada (Minister of Finance) [1997], the Supreme Court held that "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."

As opposed to this narrow definition of "information relating to the position, function and responsibilities," the Supreme Court went on to say, "information relating primarily to individuals themselves or to the manner in which they choose to perform the tasks assigned to them is 'personal information' " protected under the Privacy Act.

Clearly, then, agendas are protected, by their nature, from the reach of the Access to Information Act. They are information not about government programs or policies, but about an individual. And they are not "information relating to the position" that would be found in a job description. They are information about an individual's activities, contacts and whereabouts - whom he meets, whom he telephones, where and when he gets a haircut, with what friends he has lunch, how he organizes his time.

Therefore, this is not merely a legal point, but a profoundly human one. To make such information available for public scrutiny is psychologically similar to expecting an individual to spend his whole day, every day, under the eye of a TV camera that broadcasts his every move. To throw open someone's agendas of the past five years would be tantamount to informational rape.

No Canadian should be subject to such invasion of privacy.

This, I should stress, is not only the view of the Supreme Court and of the Privacy Commissioner of Canada. It is also the view of your own predecessor as Information Commissioner.

In rejecting the complaint in the Dagg case over access to evening and weekend sign-in logs, Information Commissioner John Grace wrote: "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.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."

That is even more the case, obviously, in the instance of agendas.

I am aware that the agendas of civil servants and even of ministers have sometimes in the past been disclosed under the Access to Information Act. But whether the individuals in question did not realize they had a choice or whether they waived their privacy rights, this does nothing to change the fact that agendas are in fact personal information that is protected under the Privacy Act.

I am also aware that when such agendas have been thus accessed in the past, entries deemed "personal" were excised. But such an approach does not resolve the problem, because an agenda in its entirety - including, for instance, the number of engagements and amount of time deemed "personal" - is by its nature personal information and its disclosure constitutes invasion of privacy.

For anyone occupying the position of Prime Minister, the invasion of privacy would indeed be particularly acute.

That's because a Prime Minister fulfils a remarkable number of distinct yet inter-related roles: head of the government, leader of the country, leader of a political party, Member of Parliament and private citizen. He does not go home at the end of the day and leave work behind; he is the Prime Minister 24 hours a day, every day. This dictates that his schedule must be exceptionally detailed, and hence his agendas are likely to be extraordinarily comprehensive.

Apart from the basic violation of personal privacy rights that opening access to these agendas would entail, such action would also be likely to cause a number of other privacy-related harms.

It would violate the privacy rights of third parties.

People who have met or spoken with the Prime Minister in private have done so with a reasonable expectation of privacy. Disclosing these contacts through release of agendas could easily have unfairly adverse consequences. For example, it could be expected to make public the identities of any private citizens who meet occasionally or regularly with the Prime Minister to exchange ideas, exposing them to unwarranted publicity and even to possible harassment by disgruntled individuals.

As well, public release of the Prime Minister's agendas could have serious security implications. Enabling persons unknown to analyze the details of his schedule over the past five years might well disclose patterns or other information that would make him more vulnerable to physical attack, a serious risk for any national leader.

I am unable to discern any over-riding public interest that would justify the invasion of privacy that would result from the course of action that you are pursuing.

I also cannot understand your insistence on needing to examine the Prime Minister's agendas in order to decide whether they should be made public. Common sense alone should suffice to tell you what you would find the agendas to contain: the record of a mix of political, governmental and personal contacts and activities.

In fact, the Prime Minister's executive assistant, Bruce Hartley, has already stated in a court document what they contain: "They contain information as to the full range of the Prime Minister's activities including Cabinet meetings, caucus meetings, foreign and diplomatic contacts, Liberal Party activities, personal and family appointments."

What more that is pertinent could you reasonably hope to learn by examining them? There is no issue that needs to be resolved by weighing the relative proportion of various types of entries, or the nature of any such entries. The simple fact is that the agendas are by their very nature personal information in their entirety. Therefore, their examination by any outsider - including yourself - would be a gratuitous invasion of privacy.

I fully agree that there are instances where we need to examine the evidence to determine whether we have jurisdiction, but this clearly is not one of them, because this is so obviously personal information. Sometimes it is tempting for those of us in positions of some authority to try to do things simply because we can; it is very important to resist that temptation.

The fundamental point is that this entire record is personal information about an individual. As a matter of principle and basic human decency, even apart from issues of law, that individual's privacy rights should be respected by not seeking to compel its disclosure.

I believe that it is my responsibility to bring these considerations to your attention, because privacy rights can be eroded in many ways. One of those ways would be for an officer of Parliament such as yourself to insist on trying to send the message that Canadians who wish to serve in government - whether it be as Prime Minister, minister, Member of Parliament or public servant - must forfeit the right to basic personal privacy that is a cherished and vital Canadian value.

Such a message would, in my view, undermine the concept that privacy is a fundamental right of every member of our society. It is gravely wrong to seek to needlessly deprive anyone of that right, regardless of position or social status.

I hope that you will take this intervention on my part in the constructive spirit in which it is intended. It is, of course, up to you to determine how you will proceed in this matter. But after very careful deliberation, I judged it necessary to share my concerns with you at this time, both because of the importance of this issue from the perspective of privacy, and to avoid surprising you at some later time with the position I will take in court if it becomes necessary.

I therefore respectfully request that you review your position on this matter in the light of the considerations I have raised.

Yours sincerely,

 

George Radwanski
Privacy Commissioner of Canada

 

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For more information, contact:

Anne-Marie Hayden
Media Relations
Office of the Privacy Commissioner of Canada
Tel.: (613) 995-0103
ahayden@priv.gc.ca
www.priv.gc.ca

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