Nault v. Canada (Public Works and Government Services), 2011 FCA 263

June 2014

Summary: Information about the work experience and educational activities of individuals before they join the public service is personal information and does not need to be disclosed to the public.

Facts: An unsuccessful candidate for certain positions in the federal public service filed a request under the Access to Information Act for documents submitted by each of the 61 successful candidates in the recruitment opportunities in which he participated. The head of Public Works and Government Services Canada (“PWGSC”) refused to disclose those documents on the grounds that they were personal information of the successful candidates. The Information Commissioner agreed with PWGSC, as did the Federal Court. The candidate appealed.

Result: Information about work and educational experience before becoming a public servant is personal information and does not need to be disclosed to the public.

Decision: The Federal Court of Appeal began by concluding that the standard of review of the head of a government institution interpreting the definition of “personal information” and the various exceptions to that definition is correctness.

The Federal Court of Appeal identified that the requested information is clearly “information relating to the education… or employment history of the individual” and therefore clearly within the definition of personal information in the Privacy Act – specifically, paragraph (b) of that definition. The only issue was whether this information was excluded by paragraph (j) of the definition as being related to “the position or functions” of an employee of a government institution. The Court of Appeal decided that information concerning achievements at an educational institution or a previous employer do not relate to the “position of functions” with a government institution, but rather concern a position or functions with the educational institution or previous employer.

The Court of Appeal considered the candidate’s argument that this information was necessary so that the Canadian public can satisfy itself that the incumbents of positions in the federal public service satisfied the requirements of their position. However, the Court of Appeal noted that courts have already decided that evaluations of government employees are “personal information” and cannot be disclosed. If information about competency is excluded, then information about personal qualifications should be excluded too.

Principles:

  1. The standard of review of a head of the government institution interpretation of the definition of “personal information” and the various exceptions to that definition is correctness.
  2. Information related to an individual’s activities outside of his or her employment with a government institution is not covered by the exception to “personal information” in s. 3(j) of the Privacy Act.
  3. Information about work or education prior to becoming a public servant is “personal information” and does not relate to a position or functions with a government institution in s. 3(j) of the Act, even if that information is used as the basis for obtaining a public service position.
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