Canada (Information Commissioner) v. Canada (Transportation Accident Investigation and Safety Board), 2006 FCA 157

June 2014

Summary: The Federal Court of Appeal ruled that air traffic control (“ATC”) communications did not constitute personal information under the Privacy Act. The Court of Appeal adopted a principled approach to defining personal information, focusing on what it called a “privacy-based” interpretation of that term.

Facts: ATC in Canada is provided by NAV CANADA. NAV CANADA is required by law to record all ATC communications (i.e. air traffic communications that are air-to-ground, ground-to-air, and ground-to-ground). NAV CANADA must keep these recordings for 30 days. If there is an “aviation occurrence”, NAV CANADA must preserve the ATC communication recordings and then hand them over to the Canadian Transportation Accident Investigation and Safety Board (“Safety Board”) for an investigation. While NAV CANADA is not a “government institution”, the Safety Board is. Three journalists and a legal representative of the estate of a deceased involved in an air accident made separate requests for ATC communications relating to four air occurrences that had been investigated by the Safety Board. The Safety Board refused to disclose the ATC communications on the grounds that they contained personal information. The Information Commissioner applied to the Federal Court, who agreed with the Safety Board and did not order the tapes disclosed.

Result: The Federal Court of Appeal concluded that ATC communications were not personal information under the Privacy Act and ordered that they be disclosed.

Decision: The Federal Court of Appeal recognized that personal information is information recorded in any form that is “about” an individual and that permits or leads to the possible identification of the individual. However, the Federal Court of Appeal went further and decided that the term “personal information” must be understood as information falling within an individual’s right of privacy. In other words, the Court of Appeal adopted what it called a “privacy-based interpretation” of the term “personal information.”

This notion of privacy in relation to information is premised on the idea that all information about a person is “in a fundamental way his own, for him to communicate or retain for himself”. Privacy thus connotes concepts of intimacy, identity, dignity and integrity of the individual. The Court of Appeal concluded that the ATC communications were not “about” an individual in that sense. The ATC communications may identify an individual, but the information contained in those communications is “of a professional and non-personal nature.” The ATC communications were about the general operation of the aircraft, weather conditions, air traffic control information and other similar issues. These were not communications about an individual, in that the ATC communications do not engage the right to privacy of individuals and the values that concept is meant to protect.

The Federal Court of Appeal also clarified that the principle in the Supreme Court of Canada’s decision in Dagg v. Canada (Minister of Finance), [1997] 2 SCR 403 that information relating to the manner in which a person performs his or her job is personal information only applies to officers and employees of government institutions.

The Federal Court of Appeal also dealt with an issue under the Access to Information Act about whether the ATC communications were confidential information of NAV CANADA, and rejected NAV CANADA’s assertion of confidentiality. The Court of Appeal therefore ordered that the ATC communication be disclosed.

Principles:

The Federal Court of Appeal confirmed some principles established in earlier cases, including:

  1. The right to privacy is paramount over the right to access in certain contexts.
  2. The definition of “personal information” has a wide reach.

The Federal Court of Appeal set out new principles as follows:

  1. Personal information is information “about” an “identifiable” individual.
  2. Information is “about” an identifiable individual when it engages an individual’s right to privacy and the values that concept is meant to protect: intimacy, identity, dignity and the integrity of the individual.
  3. Information is about an “identifiable” individual when it is reasonable to expect that the individual could be identified from the information when combined with sources otherwise available.
  4. The distinction between information relating to the position of an employee versus information relating to the employee is relevant only with respect to the exception contained in s. 3(j) of the Privacy Act regarding government officers or employees.
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