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

June 2014

Summary: This is the leading decision in Canada on the proper approach to interpreting the Privacy Act and the Access to Information Act – particularly, the interpretation of the term “personal information” in the Privacy Act. The term “personal information” in the Privacy Act should be interpreted broadly to protect the privacy of individuals with respect to personal information about themselves. Despite this broad interpretation of “personal information”, the majority of the Supreme Court of Canada decided that in this case the names of public servants on a sign-in log had to be disclosed because their hours of work were about their position and therefore were excluded from the definition of “personal information” for the purpose of the Access to Information Act request.

Facts: This case concerned a request under the Access to Information Act for copies of logs signed by employees entering and leaving the Department of Finance workplace on weekends during the month of September, 1990. The Minister of Finance disclosed the logs, but deleted the employees’ names, identification numbers and signatures on the grounds that this was “personal information” and therefore did not need to be disclosed. The Information Commissioner agreed with the Minister’s approach. The requester applied to the Federal Court. The Federal Court concluded that the names were not personal information and should be released. On appeal by the Minister, the Federal Court of Appeal reversed that decision and ordered that the names not be released.

Result: All nine judges of the Supreme Court of Canada agreed on the general principles in interpreting the term “personal information” in the Privacy Act. They divided, however, on the question of whether the sign-in logs fell into the exemption to personal information under s. 3(j) of the Privacy Act because they related to the “responsibilities of the position held by” an employee of a government institution. Five judges concluded that it did (and that the logs must be disclosed); four judges concluded that it did not.

Decision: As stated above, this is the leading decision on the principles for interpreting the Privacy Act. Those principles include the following:

  • The Access to Information Act and Privacy Act are part of a “seamless code” and should be interpreted and read together.
  • 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”.
  • The protection of privacy is a fundamental value in Canada, and is worthy of constitutional protection. The Privacy Act protects one aspect of Canadians’ privacy interests: privacy in relation to information. Privacy in relation to information means that an individual has the right to determine for himself or herself when, how, and to what extent he or she will release personal information.

The Court then discussed the interpretation of the term “personal information” as defined in the Privacy Act. Section 3 of the Privacy Act states that “personal information” means “information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing…”, and then goes on to list several examples. The Court stated that this phraseology indicates that the general opening words are the primary source of interpretation, and that the subsequent enumeration merely identifies examples of the type of subject matter encompassed by the general definition. Consequently, if the record is captured by those opening words, it does not matter that it does not fall within any specific examples. The interpretation of “personal information” is therefore very broad, and “captures any information about a specific person.”

On the facts of this particular case, the information requested revealed the times during which employees attended their workplace on weekends. Even the disclosure of the names alone would disclose information about those individuals. This is “information about an identifiable individual” and therefore falls within the definition of “personal information” in the Privacy Act.

The Court then went on to consider whether the logs fell into any of the exemptions to the definition of “personal information” in s. 3(j) – particularly, whether the information related to the “position or functions” of a government officer or employee. The court agreed unanimously that the burden of proof rested with the government to show that the record does not fall within an exclusion from the definition of “personal information”, including s. 3(j). The court also agreed that the names on the sign-in logs were not “the name of the individual on a document prepared by the individual in the course of employment” as intended by s. 3(j)(iv) of the Privacy Act: the logs are not “prepared” by those employees, and they were not made “in the course of employment” but instead to gain access to the building. While the court agreed on these general interpretative principles, it split, however, on the issue of whether the logs contained information about the nature of a particular position. The majority of the court concluded that the hours spent at the workplace is general information that relates to the position or function of the individual, and that the quantity of hours work related to the “responsibilities” of that position. The names on the sign-in logs therefore fell within the opening words of the exemption in s. 3(j) of the Privacy Act and, alternatively, within the more specific exemption in s. 3(j)(iii) of the Privacy Act.

Finally, the court considered the Minister’s discretionary power under s. 8(2)(m)(i) of the Privacy Act to release personal information when the public interest in disclosure outweighs the invasion of privacy. The court unanimously agreed that this is a discretionary power, which means that the court will not intervene if the discretion appears to have been exercised in good faith and for some reason rationally connected to the purpose for which the discretion was granted.

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 is paramount over access.
  3. Personal information is a broad term. The examples in the definition of “personal information” in the Privacy Act are just examples and do not limit the scope of the definition.
  4. Information about a position, including the hours worked in that position, is excluded from the definition of personal information by virtue of s. 3(j) of the Privacy Act.
  5. The head of a government institution has the discretion to release personal information when in the public interest, but this is a discretionary decision that must be exercised in good faith.
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