Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8

June 2014

Summary: In this case, the Supreme Court of Canada confirmed the broad expansive interpretation of “personal information” as set out in Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403. However, in this case, the Court concluded that four RCMP members’ previous postings was information related to the general characteristics associated with their positions as employees of a government institution and, therefore, could not be exempted as “personal information”.

Facts: This case concerned a request under the Access to Information Act for the list of postings and ranks occupied by four named members of the RCMP throughout their career. The Commissioner of the RCMP disclosed the current posting of the active members and the last posting of a retired member, but refused to disclose the remaining information on the grounds that it was “personal information.” The Information Commissioner found that the information was not “personal information” and recommended disclosure. The Commissioner of the RCMP still refused to disclose the information, in a decision eventually upheld by both the Federal Court and the Federal Court of Appeal. The applicant’s request was eventually heard by the Supreme Court of Canada.

Result: The Supreme Court of Canada unanimously concluded that (1) the list of the RCMP members’ historical postings, their status and date; (2) the list of ranks and the date they achieved those ranks; (3) their years of service; and (4) their anniversary dates of service all needed to be disclosed. Those items were excluded from the definition of “personal information” under s. 3(j) of the Privacy Act because they all related to the position held by RCMP members.

Decision: The Supreme Court of Canada began by confirming that the principles it set out in Dagg applied to this case as well. The Court stated that the Access to Information Act and the Privacy Act are a seamless code with complementary provisions that can and should be interpreted harmoniously. Section 2 of the Access to Information Act, which provides that exceptions to access should be “limited and specific”, does not create a presumption in favour of access – in other words, access does not trump privacy.

The Court then turned to whether the information requested was “personal information.” In light of the broad definition of “personal information” in the Privacy Act, the information sought was “information about an identifiable individual” and therefore constituted personal information. While it was not strictly necessary to consider the specific examples of personal information listed in the Privacy Act, the Court did examine the meaning of the example of “employment history.” The Court concluded that “employment history” is also a broad term, and there is no indication that Parliament intended a narrow meaning of that term. The ordinary meaning of “employment history” includes the list of positions previously held, places of employment, tasks performed, and personal evaluations an employee might have received during his career. The Court concluded that “employment history” includes any information that a reasonable person in a working environment would likely characterize as such.

The Court then examined the exceptions in s. 3(j) of the Privacy Act – namely, whether the information relates to the position or functions of a federal government officer or employee. The Court first concluded that there was no reason to impose a time restriction on the scope of s. 3(j) – particularly given that “the purpose of s. 3(j) is to ensure that the state and its agents are held accountable to the general public.” Therefore, this exception is not limited to current positions, but is intended to cover past positions as well. The Court went on to state that the purpose behind the access request and the identity of the requester are irrelevant: it is the nature of the information itself that is relevant. Finally, the Court also rejected an approach based on whether the information was subjective or objective: the true test under s. 3(j) of the Privacy Act is whether the information is directly related to the general characteristics associated with the position or functions held by a federal employee.

The Court also stated that the exception in s. 3(j) would not apply to information that is not related to the position or functions held by a federal employee: for example, evaluations, performance reviews, and notes taken during an interview are not linked to the position or functions of the individual. In other words, information linked to the competence of the government institution’s employee to fulfil his task will remain private.

Principles:

  1. The Access to Information Act and Privacy Act are part of a “seamless code” and should be interpreted and read together.
  2. Protection of personal information should be given a broad and expansive interpretation and is paramount over access.
  3. The term “employment history” – as an example of personal information – is broad.
  4. An employee’s list of previous jobs within the government (or previous postings) is information related to their position and therefore excluded from the definition of personal information by virtue of s. 3(j) of the Privacy Act.
  5. This exclusion does not apply to positions held outside of the government, or to aspects of a public servant’s job unrelated to their position (such as performance reviews).
  6. The purpose behind an access request and the identity of the requester are irrelevant; it is the nature of the information itself that is relevant.
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