Section 19 - Personal Information

The Provision:

19(1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.

The head of a government institution may disclose any record requested under this Act that contains personal information if

  1. the individual to whom it relates consents to the disclosure;
  2. the information is publicly available; or
  3. the disclosure is in accordance with section 8 of the Privacy Act.

Preliminary matters:

The Access to Information Act, R.S.C. 1985, c. A-1, (the Act) gives any Canadian Citizens or permanent resident within the meaning of the Immigration Act and any individual or any corporation present in Canada a right (of access) to most records under the control of the Federal Government. More specifically, the Act provides for access to all information in records controlled by government institutions listed in Schedule I of the Act unless there is a specific provision in the Act that permits or requires the head of the government institution to refuse to disclose the information, or unless the records (or part thereof) are excluded under section 68 or 69.

Subsection 19(1) is a conditional mandatory class exemption. The condition is that once the Head determines that a record or part thereof contains certain information which falls within the class enunciated in the exemption, he/she must then refuse to grant access to the requested information unless one of the exceptions contained in subsection 19(2) applies. The exemption process under subsection 19(1) is not completed until this determination is made.

The "Test":

There have been a considerable number of decisions from the Federal Court of Canada, and now one from the Supreme Court of Canada, on the criteria to be met in order for section 19 to apply. However, since the term 'personal information' covers a wide area of information, time and further jurisprudence will be needed to get a better understanding of the section 19 exemption. Until then, jurisprudence from other jurisdictions can also assist us in that determination.

The determination as to whether section 19 applies requested information is a multi-step process. Each step should be followed carefully in order to avoid undesirable mistakes. The following will summarize the steps you should follow:

1) Step I:

Determine whether the requested information constitutes personal information for the purpose of the Access to Information Act. To do so, you must:

  • Determine whether the requested information falls within the definition of 'personal information' as defined in section 3 of the Privacy Act; and
  • determine whether the requested information is excluded pursuant to paragraph 3(j) to 3(m) of the Privacy Act.

2) Step II:

Determine whether the requested information falls within subsection 19(2) of the Access to Information Act. This subsection excludes from the exemption information where:

  • the individual to whom the information relates consents to disclosure;
  • the information is publicly available; or
  • the disclosure is in accordance with section 8 of the Privacy Act.

3) Both of these steps will be explained further below:

a) Determination as to whether the requested information constitutes personal information for the purpose of the Access to Information Act:

Determination as to whether the information requested falls within the definition of 'personal information' as defined in section 3 of the Privacy Act.

Section 3 of the Privacy Act reads as follows:

(3) 'Personal information' means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

  1.  information relating to the race , national or ethnic origin , colour , religion , age or marital status of the individual,
  2.  information relating to the education or the medical , criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
  3. any identifying numbe r, symbol or other particular assigned to the individual ,
  4. the address , fingerprints or blood type of the individual,
  5. the personal opinions or views of the individual except where they are about another individual or about a proposal for a grant , an award or aprize to be made to another individual by a government institution or a part of a government institution specified in the regulations ,
  6. correspondence sent to a government institutionby the individual that is implicitly or explicitly of a private or confidential nature , and replies to such correspondence that would reveal the contents of the original correspondence ,
  7. the views or opinions of another individualabout the individual ,
  8. the views or opinions of another individual about a proposal for a grant , an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph (e) , but excluding the name of the other individual where it appears with the views or opinions of the other individual , and
  9. the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal informationabout the individual ,

The key factor in the definition of personal information is that the individual must be identifiable. Generally, to determine whether an individual could be identified from the disclosure of the requested information, you look at it from the perspective of a reasonably informed person. In applying this criteria, one should not consider the particular knowledge of the requester but, rather, whether any member of the public could determine who the individual referred to in the record isFootnote 1 - i.e. the fact that a particular person might be able to identify the individual is not enough to meet the test. However, if we are dealing with a particular requester and have objective evidence that he could identify the individual to whom the information relates, in this case the particular knowledge of the requester would be important in the assessment of subsection 19(1). Subject to that exception, what you must look at is whether the average person could identify the individual.

In determining whether an individual is identifiable, numerous factors can be used in conjunction with one another. This effect, (called the 'mosaic' effect) is particularly important in the context of personal information. For example, in some instances the references in the record about a specific geographic area could constitute personal information if the particular nature of the information requested could lead to the identity of the persons concerned. Similarly it could be possible in some circumstances that information about a small group of people would constitute personal information if the individuals to whom the information relates could be identifiable from the content of the record. Generally, before accepting an exemption of personal information based on the mosaic effect this office will require a very convincing argument on the part of the department claiming the information to be personal information. What will be required from the department is a clear linkage between the individual concerned and the information which is alleged to be covered by the exemption.

It is also important to consider that for the purpose of the Access to Information Act, the definition of personal information knows no national boundaries. It applies to any identifiable individual anywhere in the world regardless of their nationality, domicile, country of residence, etc.

The definition of 'personal information' contained in section 3 of the Privacy Act is not exhaustive. The definition includes any information about an identifiable individual. The definition is followed by 9 examples of what could constitute personal information. These specific examples are not in any way exhaustive and only serve to illustrate the principal types of material the legislator had in mind when creating the provision. It is very important to remember that these paragraphs are examples only and do not in any way guarantee that the information is necessarily personal information. For example, the blood type of an individual is an example of personal information contained in paragraph 3(d) of the Privacy Act. But there are millions of people that have the same blood type thus, if there is a record which contains the name of a person and his blood type, it clearly constitutes personal information about that person. However, by removing the personal identifier which links the blood type to the individual, the blood type ceases to be personal information because it no longer relates to an identifiable individual. On the contrary, some types of personal information, by themselves, could be exemptible. For example, the S.I.N. of an individual is unique and, through it alone, can lead to the identity of an individual.

ii) Determination as to whether the requested information is excluded pursuant to paragraphs 3(j) to (m) of the Privacy Act:

Paragraphs 3(j) to (m) reads as follows:

  1. 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 including:
    1. the fact that the individual is or was an officer or employee of the government institution ,
    2. the title , business address and telephone number of the individual,
    3. the classification , salary range and responsibilities of the position held by the individual,
    4. the name of the individual on a document prepared by the individual in the course of employment , and
    5. the personal opinions or views of the individual given in the course of employment,
  2. information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services;
  3. information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit; and
  4. information about an individual who has been dead for more than twenty years.

When deciding as to whether something constitutes personal information, one must not forget that the intent of subsection 19(1) and its incorporation of section 3 of the Privacy Act is to protect the privacy or identity of individuals who may be mentioned in releasable material. The subject of the two Acts read together is that information must be provided to the public except where it relates to personal information about identifiable individuals.Footnote 2

Because of the purpose of the Privacy Act is to protect the privacy of personal information, the general rule is that information about identifiable individuals is personal information and only if a specific exception contained within paragraphs 3(j) to (m) applies, would such information not be personal informationFootnote 3. Accordingly, before exempting any information under subsection 19(1) the Head of a Government Institution must satisfy himself to the effect that none of these exceptions apply. It is not sufficient for the Head of a Government Institution to simply state that he is unaware or that he just don't know if the exceptions apply. Rather, he or she should be in a position to state what activities and initiatives were taken in this regard.Footnote 4 This is particularly important considering the fact that the presence of any of these exceptions would render subsection 19(1) inapplicable.

b) Determination as to whether the information requested falls within subsection 19(2) of the Access to Information Act:

  • Determination as to whether the individual to whom the information relates, consents to disclosure.
  • Determination as to whether the information is publicly available.
  • Determination as to whether disclosure is in accordance with Section 8 of the Privacy Act.

Section 8 reads as follows:

  1. 8(1) Personal information under the control of a government institutionshall not , without the consent of the individual to whom it relates , be disclosed by the institution except in accordance with this section.
  2. 8(2) Subject to any other Act of Parliament , personal information under the control of a government institution may be disclosed
    1. for the purpose for which the information was obtained or compiledby the institution or for a use consistent with that purpose;
    2. for any purpose in accordance with any Act of Parliament or anyregulation made thereunder that authorizes its disclosure;
    3. for the purpose of complying with a subpoena or warrant issued or order madeby a court , person orbody with jurisdiction to compel the production of information or for the purpose of complying with rules of court relating to the production of information;
    4. to the Attorney General of Canada for use in legal proceedings involving the Crown in right of Canada or the Government of Canada ;
    5. to an investigative body specified in the regulations , on the written request of the body, for the purpose of enforcing any law of Canada or a province or carrying out a lawful investigation , if the request specifies the purpose and describes the information to be disclosed;
    6. under an agreement or arrangement between the Government of Canada or an institution thereof and the government of a province , the government of a foreign state , an international organization of states or an international organizationestablished by the governments of states , or any institution of any such government or organization , for the purpose ofadministering or enforcing any law or carrying ou t a lawful investigation ;
    7. to a member of Parliament for the purpose of assisting the individual to whom the information relates in resolving a problem ;
    8. to officers or employees of the institution for internal audit purposes, or to the office of the Comptroller General or any other person or bodyspecified in the regulations for audit purposes ;
    9. to the National Archives of Canada for archival purposes ;
    10. to any person or body for research or statistical purposes if the head of the government institution
      1. is satisfied that the purpose for which the information is disclosed cannot reasonably be accomplished unless the information is provided in a form that would identify the individual to whom it relates, and
      2. obtains from the person or body a written undertaking that no subsequent disclosure of the information will be made in a form that could reasonably be expected to identify the individual to whom it relates;
    11. to any association of aboriginal people , Indian band , government institution or part thereof, or to any personacting on behalf of such association, band, institution or part thereof, for the purpose of researching or validating the claims , disputes or grievances of any of the aboriginal peoples of Canada;
    12. to any government institution for the purpose of locating an individual in order to collect a debt owing to Her Majesty in right of Canada by that individual or make a payment owing to that individual by Her Majesty in right of Canada; and
    13. for any purpose where, in the opinion of the head of the institution,
      1. the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
      2. disclosure would clearly benefit the individual to whom the information relates .
  3. Subject to any other Act of Parliament , personal information under the custody or control of the National Archivist of Canada that has been transferred to the National Archivist by a government institution for archival or historical purposes may be disclosed in accordance with the regulations to any person or body for research or statistical purposes .
  4. The head of a government institution shall retain a copy of every request received by the government institution under paragraph (2)(e) for such period of time as may be prescribed by regulation , shall keep a record of any informationdisclosed pursuant to the request for such period of time as may be prescribed by regulation and shall, on the request of the Privacy Commissioner, make those copies and records available to the Privacy Commissioner.
  5. The head of a government institution shall notify the Privacy Commissioner in writing of any disclosure of personal information under paragraph (2)(m) prior to the disclosure where reasonably practicable or in any other case forthwith on the disclosure, and the Privacy Commissioner may, if the Commissioner deems it appropriate, notify the individual to whom the information relates of the disclosure.
  6. In paragraph (2)(k), "Indian band" means
    1. a band, as defined in the Indian Act;
    2. a band, as defined in the Cree-Naskapi (of Quebec) Act; or
    3. the Band, as defined in the Sechelt Indian Band Self-Government Act, chapter 27 of the Statutes of Canada, 1986.

Before exempting information pursuant to subsection 19(1) of the Act, the Institution Head must first make the determination as to whether any of the conditions enumerated in subsection 19(2) are present. Once any of these conditions are fulfilled, the Head of the government institution is required to disclose the requested information.Footnote 5

The head of a government institution has the duty to determine whether these conditions are present (determining whether the information has been made publicly available whether the individual concerned would consent to disclosure ) or whether the public interest override applies) in each case where the conditions could reasonably be fulfilled. In a case involving a consent override in the Privacy Act (section 19(2) Privacy Act/ section 13(2) Access to Information Act ), for example, the Federal Court of Appeal stated that the request for information itself "includes a request to the head of a government institution to make reasonable efforts to seek the consent of the third party which provided the information." (Emphasis added)). The Court noted that the evidentiary burden lies on the government institution to show that the exception in subsection 19(2) of the Privacy Act (subsection 13(2) Access to Information Act) for consent does not apply given the inability of the requestor to know who to ask for consent or what the withheld information consists of. The test enunciated by the Court with respect to the application of the consent override in subsection 19(2)(a) (subsection 13(2)(a) of the Access to Information Act) was whether the government institution has made reasonable efforts to seek the consent of the other government or institution. See Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000, (F.C.A.).

In the RubyFootnote 6 case the Federal Court of Appeal also considered the duty of the institution head to decide whether the public interest override in sub-paragraph 8(2)(m)(i) of the Privacy Act applied. The Federal Court of Appeal held that the institution head must undertake a weighing of the competing interests behind the public interest override, but that the manner in which the weighing of interests is conducted is within the discretion of the head of the institution. In the Ruby case, the Federal Court of Appeal concluded that it was unclear whether the government institution (CSIS) had conducted any kind of discretionary balancing of public interest and privacy under subparagraph 8(2)(m)(i), and remitted the matter back to the Trial Judge to determine whether the exemption from disclosure that was subject to the override had been properly applied:

Having said all this, however, we confess that we are unable to ascertain from the decision of the reviewing judge whether in fact CSIS conducted any kind of discretionary balancing of public interest and privacy. In other words, it is unclear whether CSIS took any consideration of subparagraph 8(2)(m)(i) when it refused to disclose information relating to third parties and whether, therefore, it properly applied the exemption it claimed pursuant to section 26 of the [Privacy] Act. Nor are we able to determine whether the reviewing judge was satisfied that the exemption had been considered by CSIS, or that he considered it himself. In the circumstances, there should be a new review of the personal information requested in banks 010 and 015 for the purpose of determining whether the exemption in section 26 has been properly applied CSIS. (at paragraphs 124-125).

Case Law:

1) Federal:

a) Subsection 19(1) ATIA:

  1. General:

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

The Supreme Court of Canada held that the Access to Information and Privacy Acts taken together create a "seamless code" which sets out a coherent and principled mechanism for balancing and determining where the competing policies of access to information and privacy should prevail one over the other. The Court held that it is clear Parliament did not intend to give pre-eminence to access over privacy. While access is the general rule under the Access to Information Act, the underlying purpose of the exemption for "personal information" in section 19, which is based on the Privacy Act, should be given equal effect. The Court held as follows:

In summary, it is clear that the Access to Information Act and Privacy Act have equal status, and that courts must have regard to the purposes of both statutes in considering whether a government record constitutes "personal information".

I do not believe, moreover, that the parallel interpretation model is inherently contradictory or necessarily leads to inconsistent results. The Access to Information Act clearly provides that "personal information" is not to be disclosed except in certain specified circumstances. Of course, the determination of what constitutes "personal information" will involve a balancing of competing values. Such a balancing process, where mandated by legislation, cannot be avoided simply because it might be easier to apply a clear, bright-line rule that favours one interest over another. By employing the considerations set out in the Privacy Act, courts are perfectly capable of developing a jurisprudence that achieves consistency in principle.

That being said, I cannot agree with the respondent that, the words of the "personal information" exemption being clear and unambiguous, the task of statutory interpretation does not arise in this case. The determination of what constitutes "personal information" is an interpretative exercise; an exercise that will inevitably require a consideration of the competing values of access and privacy.

Robertson v. Canada (Minister of Employment and Immigration), [1987] 42 D.L.R. (4th) 552; 13 F.T.R. 120 (T.D.): Canada (Information Commissioner) v. Canada (Solicitor General) [1988] 3 F.C. 551 (T.D.):

  • What Parliament intended by the incorporation of a section of the Privacy Act in section 19(1) of the Access to Information Act was to ensure that the principles of both statutes would come into play in the decision whether to release personal information. Neither of these statutes should be given pre-eminence.

Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.):

  • However, the intent of section 19(1) and its incorporation of section 3 of the Privacy Act, is clearly to protect the privacy or identity of individuals who may be mentioned in releasable material. The definition of personal information is deliberately broad in order to safeguard the identity of individuals.

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.):

  • Section 2 of the Access to Information Act outlines the purpose of the Act, namely to extend the present laws of Canada provide a right of access to information in government records in accordance with the principles that government information should be available to the public and that necessary exceptions should be limited and specific. The purpose of the Privacy Act is also outlined in its section 2, namely to protect the privacy of individuals with respect to personal information about themselves held by government. Reading both sections together, it is clear that the role is to provide information to the public and the exception is personal information. The object of the two Acts, read together, is that information shall be provided to the public, except personal information relating to individuals.

ii) Section 3 P.A. - Definition of Personal Information

Tridel Corp. v. Canada Mortgage and Housing Corp., (1996), 115 F.T.R. 185

  • The Court found that Tridel Corporation did not qualify as an "identifiable individual" and could, therefore, not take advantage of the personal information exemption under section 19 of the Act.

Wells v. Canada (Minister of Transport), (May 9, 1996), T-775-92, T-1728-92, T-1938-92 (F.C.T.D.)

  • In this case, some documents were exempted from disclosure as being personal information. The Court found, however, that the department had not provided evidence as to who wrote a hand-written memorandum. The matter was returned to the department to either provide the necessary identification in support of its position or to otherwise release the information. The Court did not order disclosure as an innocent third party could be injured if it turned out the exemptions were proper.

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.):

  • It is not sufficient for the head of a government institution to simply state that they are unaware or that they do not know if the exceptions to section 19 apply. Rather, they should be in a position to state what activities and initiative were taken in this regard.

Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 (T.D.); (1988) 5W.W.R. 151; (1988) 59 Alta. C.R. (2d) 353; 18FTR 15 (T.D.):

  • In this case the Federal Court ruled that audited financial statements do not constitute personal information where no individuals are named or otherwise identified in the statements. As noted above in some circumstances information about a small group of people will constitute personal information, the Court has found that the mere fact that one can divide a group's assets by the number of its members, does not constitute personal information.

Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395 (1989) 64 D.L.R. (4th) 413; 28 C.P.R. (3d) 301; 32 F.T.R. 161 (T.D.):

  • Security classifications do not constitute personal information as defined in section 3 of the Privacy Act where it relates to a position and not to the individual who applied for that position or who eventually filled it.

Terry v. Canada (Minister of National Defence), (November 10, 1994), T-845-94 (T.D.):

  • The Court in a case concerning a request about an identifiable individual found that the following constitutes personal information: (1) the service number of the individual; (2) information describing the conduct, medical and medical state of the individual while in service; (3) information concerning the date of birth and date of enrolment, as well as good conduct medals and badges; (4) character assessment of the individual.

Paragraph 3(b):

Noel v. Great Lake Pilotage Authority Limited, [1988] 2 F.C. 77; 45 D.L.R. (4th) 127; 20 F.T.R. 257 (T.D.):

  • In this case, the Court found that the fact that a ship pilot had completed at least 10 one-way passages through the St. Lawrence River during a 3-year period did not constitute an employment history for the purpose of the Privacy Act.

Robertson v. Canada (Minister of Employment and Immigration), [1987] 42 D.L.R. (4th) 552; 13 F.T.R. 120 (F.C.T.D.):

  • A letter written by a union representative in his official capacity does not per se (of itself) constitute personal information for the purpose of the Privacy Act. However, if the same union official uses words indicating that he expressed his own observations based on personal experience and opinions (i.e. words such as personally), these sentences constitute personal information about the other pursuant to paragraph 3(e) and they should be exempted and the rest disclosed.

Grimard v. Canada (Canadian Human Rights Commission), (November 23, 1994), T-1461-94 (F.C.T.D.):

  • In this case the Court found that a settlement agreement between an individual and a third party constitutes personal information about the individual for the purpose of the Act.

Dagg v. Canada (The Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403:

  • The Court found in this case that subsection 3(b) did not apply to departmental sign in sheets. It relied on the fact that the expression 'employment history' refers to the history of positions of an individual has occupied in the past, the number of years he has worked for, the number of years he has worked for the Government, the names of those whom he has worked for prior to joining the Government and so on, but clearly not to whether he worked all the time for a given number of hours on a given day. The Court came to this conclusion by relying on a rule of interpretation which states that the interpretation taken should be strictly limited to the specific meaning of the word used in the provision. Accordingly, the expression 'employment history' could not be stretched to include the overtime work by an employee. [NB: Note that the Supreme Court of Canada instead based its decision that sign-in logs are not personal information on the applicability of the exemption in paragraph 3(j).]

Sutherland v. Canada (Minister of Indian & Northern Affairs et al.), (6 May 1994) T-2573-93 (F.C.T.D.):

  • The Court agreed that the names of persons who owe money to an Indian Band, or who are loaned money by the band, or for whom the band guarantees a loan, or whose salary is individually set out, comes within the definition of personal information as defined in paragraph 3(b) of the Privacy Act.

Paragraph 3(c):

Dagg v. Canada (The Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403:

  • The Court found that the name of a person contained on a signing sheet could fall within the ambit of subsection 3(c) of the Privacy Act. However, since subsection 3(i) made express provisions for the name of an individual, the Court found it was unlikely that such information would also constitute "identifying number, symbol or other particulars assigned to the individual" as defined by subsection 3(c). [NB: Note that the Supreme Court of Canada instead based its decision that sign-in logs are not personal information on the applicability of the exemption in paragraph 3(j).]

Paragraph 3(i):

Dagg v. Canada (The Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403:

  • The Trial Division in this case found that subsection 3(i) did not apply since the names on the sign-in sheet did not appear with any other personal information. The Court explicitly rejected the respondent argument that disclosure of the names of the individuals concerned would also disclose other personal information about these persons, namely the day and time that they entered and exited the premises. The Federal Court of Appeal, [1995] 3 F.C. 199 at 223, reversed this finding and held that they were information about the whereabouts of the individuals concerned at specified times. [NB: Note that the Supreme Court of Canada instead based its decision that sign-in logs are not personal information on the applicability of the exemption in paragraph 3(j).]

Noel v. Great Lake Pilotage Authority Limited, [1988] 2 F.C. 77; 45 D.L.R. (4th) 127; 20 F.T.R. 257 (T.D.):

  • The Court found in this case that an individual's name does not constitute personal information unless, as provided in this paragraph, disclosure of the name itself would reveal personal information about the individual. When the severance provision of the Act is applied and the personal information severed from disclosure, the name of the individual can be disclosed.

MacKenzie v. Canada (Department of National Health & Welfare), (13 November 1994), T-1052-91:

  • According to this decision, the wording of an access request in itself can sometimes trigger the application of section 19. In this case, disclosing the requested information (the access request specifically asked for the names of those medical practitioners in Nova Scotia who have had their prescribing privileges restricted or revoked) would have revealed both the name and others also revealed personal information - i.e., the fact that their prescribing privileges were restricted or revoked.

iii) Paragraph 3(j) - (m) P.A.:

General:

Dagg v. Canada (Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403:

  • The Supreme Court of Canada held that "it is clear that even where it has been shown that the record is prima facie personal information, the government retains the burden of establishing that a record does not fall within one of the exceptions set out in s. 3(j) [to m].

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.):

  • It is not sufficient for the head of a government institution to simply state that they are unaware or that they do not know if the exceptions to section 19 apply. Rather, they should be in a position to state what activities and initiatives were taken in this regard.

Sutherland v. Canada (Minister of Indian and Northern Affairs et al.), (6 May 1994) T-2573-93 (F.C.T.D.):

  • Because the purpose of the Privacy Act is to protect 'personal information' the general rule is that information about identifiable individuals is 'personal information' and only if a specific exception applies, would such information not be 'personal information'. Accordingly, the party wishing to demonstrate that information about an identifiable individual is not 'personal information' must show that an exception applies.

MacKenzie v. Canada (Department of National Health & Welfare), (13 November 1994), T-1052-91 (F.C.T.D.):

  • The person claiming one of these exceptions has the burden of proving that it applies.

Paragraph 3(j):

Dagg v. Canada (Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403:

  • A consultant requested access to the sign in logs maintained at the Department of Finance, which recorded the names, identification numbers and signatures of employees entering and leaving the workplace on weekends. A majority of the Supreme Court of Canada held that the name of employees, which had been exempted from disclosure by the institution, fell within the exception to the definition of personal information contained in paragraph 3(j)(iii) of the Privacy Act.

    The number of hours spent at a workplace is generally information that relates to the position or function of the individual. It can be assumed that most people do not go to their place of employment on the weekend unless their work requires it. As such, at a minimum, the logs permitted a general assessment to be made of the amount of work required for an employee's particular position or function. The information also provided a general indication of the extent of an employee's responsibilities in that the more work demanded of an employee, the longer would be the hours of work required to complete it to fulfil the responsibilities of the position held by him or her.

Mislan v. Canada (Minister of Finance), (1998) 148 F.T.R. 121 (F.C.T.D.)

  • The Federal Court Trial Division held that the views of a person respecting a sexual harassment complaint in which he or she is involved is clearly personal information and is not subject to the exception for the personal opinions or views of the individual given in the course of employment in paragraph 3(j)(v). [The result in this case should be applied with extreme caution as it does not appear to be consistent with the result in Lavigne v. Canada (Commissioner of Official Languages), (1998) 151 F.T.R. 15 and Information Commissioner v. Immigration and Refugee Board, (1997) 140 F.T.R. 140.

Lavigne v. Canada (Commissioner of Official Languages), (1998) 151 F.T.R. 15; Information Commissioner v. Immigration and Refugee Board, (1997) 140 F.T.R. 140

  • In these cases the Federal Court Trial Division confirmed that personal information to which individuals are entitled to receive access includes the views or opinions of other individuals about him in the context of an employment-related investigation conducted by the Commissioner of Official Languages. Paragraph 3(j)(v) was not discussed in this case. The Court rejected arguments that paragraph 16(1)(c) of the Act applied to exempt the information from disclosure.

Canada (Information Commissioner) v. Canada (Solicitor General) [1988] 3 F.C. 551 (T.D.):

  • An exception to the definition of personal information is information that relates to the position or functions of government employees. The specific examples of releasable employment information listed in sub-paragraph 3(j)(i) to 3(j)(v), while not exhaustive, serve to illustrate the sort of material the legislators had in mind when they excluded paragraph 3(j) of the definition of personal information for the purpose of the Access to Information Act. Except for item (v), - (i.e., the individual's own views or opinions given in the course of employment), all the examples are matters of objective fact. Examples of information that do not fall within paragraph 3(j) are: government employee training, personality, experience or competence.

Terry v. Canada (Minister of National Defence), (November 10, 1994), T-845-94 (F.C.T.D.):

  • In this case, the Court relied upon the expressio unius est exclusio alterius rule of interpretation and stated that in order to fall within that exception, the information requested must fall squarely within the 3(j) exception.

Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395 (1989) 64 D.L.R. (4th) 413; 28 C.P.R. (3d) 301; 32 F.T.R. 161 (T.D.):

  • In this decision, the Court found that a security classification would fall under paragraph 3(k) since such information relates to services performed and not to the individual. Similarly, it would also fall under paragraph 3(j) when the individual concerned is not a contractor but a public servant.

Rubin v. Canada (The Clerk of the Privy Council), (25 March 1993), T-2651-90, T-1587-91 & T-1391-92 (F.C.T.D.):

  • The per diem rate of an individual is essentially the same as his specific salary and, therefore, it should not be excluded under paragraph 3(j) of the Privacy Act. Paragraph 3(j) is an exception to personal information. Anything that does not fall within the category is excluded. According to the Court, any non-monetary, non-salarial remuneration can be disclosed.

Paragraph 3(k):

Canada (Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395 (1989) 64 D.L.R. (4th) 413; 28 C.P.R. (3d) 301; 32 F.T.R. 161 (T.D.):

  • A security classification would fall under the exclusion provided by this paragraph since such information relates to the services performed and not to the individual.
  • The English version of paragraph 3(k) should be adopted because it is more consistent with the principles of the Act. The French version is narrower as it limits the exclusion to an individual, who has personally concluded contractual arrangements with the government, whereas the English text relates to an individual who was performing services for the government, whether it be directly or indirectly through a personnel agency.

Paragraph 3(l):

Canada (Information Commissioner) v. Canada (Minister of Fisheries and Oceans), [1989] 1 F.C. 66 (T.D.):

  • In this case, the Court had to determine whether the words 'granting of a licence or permit' were meant to extend the term 'discretionary benefit of a financial nature' or whether they were intended by Parliament as a specific illustration of a type of benefit to be encompassed. The Court found that it is clear from the structure of the section that the phrase following 'including' is intended to extend and clarify the extent of the exception. The Court also found information relating to the grant of a licence or permit will only fall under section 3(l) if the licence or permit constitutes a discretionary benefit of a financial nature. We did not bring any evidence supporting this point. Permits such as applications for private pilots, permits to camp or hold demonstrations on federal crown land, and permits to observe the seal hunts are not of this nature.

Bland v. Canada (National Capital Commission), [1991] 3 F.C. 325; 41 F.T.R. 202, 4 Admin D.L.R. (2d) 171; 36 C.P.R. (3d) 289 (T.D.):

  • In this case, the Court found that the National Capital Commission exercised a discretion in accepting or rejecting those who seek to become its' tenants of real property. The people chosen receive a discretionary benefit because the rental payments were of smaller amounts than for comparable residential properties. On that basis, the information sought by the applicant was said not to be included in definition of 'personal information'. On that basis, the court ordered disclosure of the name, addresses, and property designations of NCC residential tenants.

    The Court defined the term 'discretionary benefit' as follows':

  • "The prime factor is a 'discretionary' benefit, but not a 'gratuitous' benefit, nor yet an 'exclusive' benefit, or even a cut-rate, or 'bargain basement' benefit. Any of those imagined adjectives would narrow down paragraph 3(l)'s purview. The kind of benefit contemplated here could well, on the words of the statute, be nothing more than one of the constituent elements of consideration, or quid pro quo, known to the law of contracts. In a real sense every contract involves the conferring of a benefit on the other party and the enduring of a detriment, on oneself. The statute mentions only the conferring of a discretionary benefit from the government institution's point of view. It is so composed that it does not need to mention the quid pro quo, because the conferred benefit is not so narrowly contemplated as to be gratuitous nor yet exclusive or cut-rate. The wording is sufficient to cover all of those narrower notions, so long as the benefit be conferred upon the discretion of a government institution, official or employee and is of a financial nature. The exacting of rent money from a tenant is 'of a financial nature' just as surely as the according to the tenant of quite, exclusive occupation of the premises during the term of the lease is conferring a 'discretionary benefit'."
  • The Court found that the term 'granting of a licence or permit' did not in any way restrict the application of paragraph 3(l) but simply constituted an illustration of discretionary benefit.
  • It is possible for the government to grant a discretionary benefit of a financial nature during the course of contractual relationship.

Rubin v. Canada (The Clerk of the Privy Council), (25 March 1993), T-2651-90, T-1587-91 & T-1391-92 (F.C.T.D.):

  • In this case, it was found that paragraph 3(l) of the Privacy Act does not refer only to gratuitous benefits. According to the Court, Parliament never placed such a limitation on benefits of a financial nature.
  • In this case, even if the Court found the appointment of the Chairman of the Canada Council constitutes a discretionary benefit of a financial nature, the Court did not order the Chairman's salary to be disclosed. According to the Court since the precise monetary remuneration was defined as personal information by Parliament, and since the salary range alone is an exception to that personal information, the discretionary benefit of a financial nature could not apply to the Chairman's salary. According to the Court one should always attempt to construe Parliament's legislation so as to have internal consistency.

Sutherland v. Canada (Minister of Indian and Northern Affairs et al.), (6 May 1994), T-2573-93 (F.C.T.D.):

  • The counsel for the Minister, in this case, argued that the specific inclusion in paragraph (l) of the reference to the granting of licences or permits suggest that the discretionary benefits which parliament had in mind were only benefits conferred by government institutions. The Court rejected that argument on two grounds. First, it stated that while licences and permits may generally connote government action, they are not, by definition, only granted by government institutions. Second, looking at paragraphs 3(e), (j) and (k) the Court came to the conclusion that:
  • "It is apparent that in deciding that some information about an individual should not be 'personal information' entitled to the right of privacy, Parliament was balancing the public interest in disclosure of such information under the control of a government institution against the invasion of an individual's privacy. Even though such information might be information about an identifiable individual, Parliament decided that there are overriding public interest reasons for its disclosure."
  • It is the person claiming that an overriding public interest exists who has the burden of proof of demonstrating that the benefit did not take part during the course of an ordinary transaction, but rather constituted a gift or an advantage given to the individual.

Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), (1996), 70 C.P.R. (3d) 37, under appeal A-828-96:

  • There is nothing discretionary about who receives a pension benefit under the Members of Parliament Retiring Allowances Act. There are two requirements an MP must meet before he or she can receive a pension: he or she must be retired, and he or she must have six years of service. If those two qualifications are met, then a pension benefit is issued. If those two qualifications are not met, then no pension benefit is received. Accordingly, the discretionary benefit exception set out in subsection 3(l) of the Privacy Act does not apply.

Paragraph 3(m):

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.):

  • It is not sufficient for the head of a government institution to simply state that they are unaware or that they do not know if the exceptions to section 19 apply. Rather, they should be in a position to state what activities and initiative were taken in this regard.

b) Subsection 19(2) ATIA:

General:

Dagg v. Canada (Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403:

  • In Dagg v. Canada (Minister of Finance) the Supreme Court of Canada determined that the exceptions in subsection19(2), under which the head of an institution "may" release personal information, are discretionary in nature, and not directory. A reviewing Court should not review the exercise of discretion under s. 19(2) de novo. The Court found that the institution head had given full consideration to the issue of whether the public interest override in section 19(2) applies and indicated that it would not interfere with the exercise of discretion absent evidence it was exercised improperly.

    [Note that this dicta applies to Courts and describes the discretionary nature of a head's decision under 19(2). It does not prevent a de novo examination by our office upon investigation of a complaint or the making of recommendations to the head based on a de novo review by our office of whether the exceptions in s. 19(2) apply.

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.):

  • It is not sufficient for the head of a government institution to simply state that they are unaware or that they do not know if the exceptions to section 19 apply. Rather, they should be in a position to state what activities and initiative were taken in this regard.

Canada (Information Commissioner) v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 63 (T.D.):

  • Once the conditions enunciated in subsection 19(2) of the Act are fulfilled, it becomes directory upon the Head of the Government Institution to disclose the requested information.

Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), (1996), 70 C.P.R. (3d) 37, under appeal A-828-96

  • The court found that the names of former MPs in receipt of a pension was personal information which could prima facie be exempted from disclosure pursuant to subsection 19(1) of the Act. However, much of the information was also publicly available or its release had been consented to, pursuant to paragraphs 19(2)(a) and (b) of the Act, and therefore the Court held that the Minister had no residual discretion to refuse to release it. Further, notwithstanding whether the information was publicly available or had been the subject of a consent to be released, the court concluded that the information ought to have been disclosed, since the public interest outweighed the unsupported claim of any serious invasion of privacy, pursuant to paragraph 19(2)(c) of the Act and sub-paragraph 8(2)(m)(i) of the Privacy Act.

Paragraph 19(2)(a) ATIA:

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.).

  • A request for personal information subject to the consent over-ride in subsection 19(2) Privacy Act [subsection 13(2) Access to Information Act "includes a request to the head of a government institution to make reasonable efforts to seek the consent of the third party who provided the information."(Emphasis added). The government institution has the evidentiary burden of showing that the exemption for consent does not apply given the inability of the requestor to know who to ask for consent or what the information consists of.

Canada (Information Commissioner) v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 63 (T.D.):

  • Once the individuals to whom the information relates consent to disclosure pursuant to this paragraph it becomes directory upon the Head of the Government Institution to disclose the requested information.

Paragraph 19(2)(b) ATIA:

MacKenzie v. Canada (Department of National Health & Welfare), (13 November 1994), T-1052-91 (F.C.T.D.):

  • Disclosure of personal information to persons with a need to know (implicitly in confidence), does not make the information publicly available within the meaning of paragraph 19(2)(b). This is so even if the information was disclosed to a considerable number of individuals.

Terry v. Canada (Minister of National Defence), (November 10, 1994), T-845-94 (F.C.T.D.):

  • The Court in this case found that inadvertent disclosure to the media does not make information publicly available for the purpose of the Act.

Paragraphs 19(2)(a) & (b) ATIA:

Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), (1996), 70 C.P.R. (3d) 37, under appeal A-828-96

  • There is no public policy objective to be served by giving a discretion to refuse to disclose information which is publicly available or which has been consented to. Therefore, there is no purpose to be served by interpreting paragraphs 19(2)(a) and (b) as discretionary. The Act is replete with exemptions. Information from foreign states, commercial information and national security are just some of the exemptions contained in the Act. There is no reason to add one more. Conversely, if subsection 19(2) is discretionary then why would the legislators use the superfluous language in paragraphs (a) and (b)? Why not just say the head of the government institution may disclose any record if the disclosure is in accordance with the public interest? Parliament must have intended a useful purpose by including these paragraphs.

Paragraph 19(2)(c) ATIA - Section 8 P.A.:

Grimard v. Canada (Canadian Human Rights Commission), (November 23, 1994), T-1461-94 (F.C.T.D.) now under appeal:

  • The Court in this case found that a review by the Canadian Human Rights Commission of the terms of the settlement between an individual and a third party is enough to protect the public interest. It was required by law that the Canadian Human Rights Commission review the terms of the agreements and approve them before they come into effect. When the settlement contains a non-disclosure clause, it must be respected by the Court and the Public Authorities.

Grand Council of the Crees (of Quebec) v. Canada (Minister of External Affairs and International Trade),( June 27, 1996), T-1681-94, (F.C.T.D.)

  • In this case, the Court was satisfied that some information being withheld under subsection 19(1) was personal information. However, it noted, the Grand Council of the Crees established that the exception set out in paragraph 19(2)(c) applied because in accordance with paragraph 8(2)(k) of the Privacy Act, the information was sought by an association of aboriginal people or Indian bands "for the purpose of researching or validating the claims, disputes or grievances of any of the aboriginal peoples of Canada". The application was therefore referred back to the department for review and redetermination by a proper exercise of the discretion granted under subsection 19(2) of the Act.

Paragraph 8(2)(a) of the Privacy Act:

Dagg v. Canada (Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403:

  • The Court should not conduct a de novo review of a head's decision under paragraph 8(2)(m) of the Privacy Act. This decision is discretionary and should be reviewed on this basis. [Note that this dicta applies to Courts and describes the discretionary nature of a head's decision under 19(2). It does not prevent a de novo examination by our office upon investigation of a complaint or the making of recommendations to the head based on a de novo review by our office whether the exceptions in s. 19(2) apply.]

    The majority in Dagg held that the Minister of Finance abused his discretion by refusing to invoke the public interest override in s. 8(2)(m)(i) of the Privacy Act on grounds the requestor had not shown any reason it should apply. The Court confirmed that the institution head must turn his/her own mind to the question of whether the public interest in disclosure clearly outweighs any invasion of privacy that could result and make a determination in the proper exercise of his/her own discretion.

Sutherland v. Canada (Minister of Indian & Northern Affairs et al.), (6 May 1994), T-2573-93 (F.C.T.D.):

  • The Court in this case found that disclosure of the names of individuals who had financial transactions with the Band would not be a purpose for which the financial statements and other financial information of the Band were originally supplied to the government institution. Therefore, the personal information at issue did not meet the test of paragraph 8(2)(a) of the Privacy Act.

Paragraph 8(2)(k) of the Privacy Act:

Sutherland v. Canada (Minister of Indian & Northern Affairs et al.), (6 May 1994), T-2573-93 (F.C.T.D.):

  • The Court in this case found that paragraph 8(2)(k) was not applicable since the application was brought by an individual not purporting to act on behalf of an association of aboriginal people or an Indian Band. According to the Court, paragraph 8(2)(k) appears to contemplate formal claims or disputes brought by aboriginal people in their capacity as aboriginal people. It does not apply to any disputes between individuals of aboriginal descent.

Paragraph 8(2)(m) of the Privacy Act:

Dagg v. Canada (Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403:

  • Dagg v. Canada (Minister of Finance) the Supreme Court of Canada determined that the exceptions in subsection19(2), under which the head of an institution "may" release personal information, are discretionary in nature, and not directory. A reviewing Court should not review the exercise of discretion under s. 19(2) de novo. The Court found that the institution head had given full consideration to the issue of whether the public interest override in section 19(2) applies and indicated that it would not interfere with the exercise of discretion absent evidence it was exercised improperly.

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000 (F.C.A.):

  • The Federal Court of Appeal considered the duty of an institution head to decide whether the public interest override in section 8(2)(m)(i) Privacy Act applies. The Court held that the institution head must undertake a weighing of the competing interests behind the public interest override, but that the manner in which the weighing of interests is conducted is within the discretion of the head of the institution. In the Ruby case, the Federal Court of Appeal concluded that it was unclear whether the government institution (CSIS) had conducted any kind of discretionary balancing of public interest and privacy under paragraph 8(2)(m)(i), and remitted the matter back to the Trial Judge to determine whether the exemption from disclosure that was subject to the override had been properly applied:

    Having said all this, however, we confess that we are unable to ascertain from the decision of the reviewing judge whether in fact CSIS conducted any kind of discretionary balancing of public interest and privacy. In other words, it is unclear whether CSIS took any consideration of subparagraph 8(2)(m)(i) when it refused to disclose information relating to third parties and whether, therefore, it properly applied the exemption it claimed pursuant to section 26 of the [Privacy] Act. Nor are we able to determine whether the reviewing judge was satisfied that the exemption had been considered by CSIS, or that he considered it himself.

    In the circumstances, there should be a new review of the personal information requested in banks 010 and 015 for the purpose of determining whether the exemption in section 26 [Privacy Act] has been properly applied by CSIS. (at paragraphs 124- 125).

  • In considering whether the public interest override in section 8(2)(m)(i) Privacy Act applies, the institution head must undertake a balancing of the competing public interests in disclosure of the information and in protecting the privacy of individuals. The privacy interest encompassed from section 8(2)(m)(i) can be specific to the individuals to whom the information relates or can be a broader interest reflecting general policy goals related to privacy, depending on the circumstances. The two ways of conceiving privacy can be equally valid and therefore create some flexibility in the manner in which discretion is exercised under subparagraph 8(2)(m)(i):

    Generally, the most obvious way for the institution head to exercise his or her discretion will be by inquiring into the impact of disclosure upon the privacy of those individual third parties specifically named in the requested information. At other times, it might be appropriate to deal with the privacy interest at a more abstract level so as to weigh it against the public's interest in disclosure. The latter approach may at times be an equally valid exercise of the broad discretion conferred upon the head of a government institution. The extent to which the privacy interest ought to be considered in a more or less specific form will depend largely on the facts surrounding each request.

Robertson v. Canada (Minister of Employment and Immigration), [1987] 42 D.L.R. (4th) 552; 13 F.T.R. 120, (F.C.T.D.):

  • In this case, the Court found no overriding public interest in permitting the applicant to obtain access to submissions provided by a union representative opposing the application for a grant by the applicants employer. According to the Court, there was no public interest in disclosing the personal information to the applicant simply for the purpose of assisting him in preparing counter submissions for the grant application.

MacKenzie v. Canada (Department of National Health & Welfare), (13 November 1994), T-1052-91 (F.C.T.D.):

  • Where the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure the information may be disclosed. Whether the public interest clearly outweighs any invasion of privacy is a discretionary matter conferred on the head of the institution. When exercising his discretion the head must have regard to the purpose of the Access to Information Act and exercise that discretion within proper limits and on proper principles. Since the exemptions must be examined independently of the government, the Court has the duty and the right to prefer its own view of the public interest weight over the opinion of the head of the government institution.

Bland v. Canada (National Capital Commission), [1991] 3 F.C. 325; 41 F.T.R. 202, 4 Admin D.L.R. (2d) 171; 36 C.P.R. (3d) 289 (T.D.):

  • "It is always in the public interest to dispel rumours of corruption or just plain mismanagement of the taxpayers' money and property. Naturally, if there has been negligence, somnolence or wrongdoing in the conduct of a government institution's operations it is, by virtual definition, in the public interest to disclose it, and not to cover it up in wraps of secrecy. The 'public interest in disclosing' is a statutory Polaris, and it is to be cursorily denigrated by the simple assertions that it is "less than apparent in this situation" and that "there would be no general benefit for or advantage to the public to be provided with that information." Such assertions do not constitute any weighing of one statutory factor against the other. In any event, under section 2 of the information legislation, 'the public interest in disclosure' exists as a paramount value which is to be suppressed only when and if it clearly does not outweigh any invasion of privacy. That requires that 'any invasion of privacy' must be a weighty matter, indeed, for if not, it will inevitably be clearly outweighed by 'the public interest in disclosure'."

Sutherland v. Canada (Minister of Indian & Northern Affairs et al.), (6 May 1994) T-2573-93 (F.C.T.D.):

  • In this case, the Court stated that it would not substitute its own decision for the one of the head of the government institution. According to the Court, when the head of a government institution, in the exercise of a discretion conferred upon him or her parliament, decided that public interest in disclosure 'personal information' does not clearly outweigh the invasion of privacy, the head of the institution acts within jurisdiction. For the Court to interfere with such a decision, it must conclude that the head of the government institution was not authorized to exercise his or her discretion in a manner in which it was exercised.

    It is only when the head of a government institution forms the opinion that the public interest in disclosure clearly outweighs the invasion of privacy that there is any discretion to disclose the personal information.

Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), (1996), 70 C.P.R. (3d) 37, under appeal A-828-96

  • The legislation seeks to strike a balance between the competing interests of a person's entitlement to a reasonable expectation of

    privacy and the public interest in the disclosure of government information. In striking this balance the context in which the interests are balanced will vary. For example, the Members of Parliament Retiring Allowances Act, unlike other federal legislation, is not one of general application but was enacted by MPs, who are accountable to the public, exclusively for their own benefit so that the expectation of privacy in this case is diminished if the fairness of the legislation is to be known.

2) Ontario:

Paragraph 3(j):

(Orders #M-30, M-210)

  • The Commission ruled that this provision applied to information about an identifiable individual and includes and applies to the names of individuals who are or were employed by the institution.

(Order #P-273)

  • Access to an individual's application for employment and resume cannot be achieved through this provision.

(Order #M-18, M-102)

  • Since exact salaries have the benefit of a presumed unjustified invasion of personal privacy, it is unlikely, in most circumstances, that any salary-related information would be available to the public. Where salary ranges do not exist, the head may be ordered to establish a salary range which is narrow enough to provide a member of the public with reasonable information.

(Order #M-378)

  • The Commission held that an account entry reflecting contributions to a particular pension fund by an identifiable employee was benefit information and hence accessible under this provision. The fact that exact salary information may be derived from the pension contributions did not result in the information not being disclosed.

Paragraph 8(2)(m):

(Reconsideration Order R-980036 (upholding Order P-1561), May 11, 1998)

  • A request for police records requested in connection with insurance litigation relating to the circumstances of an individual's death was denied on grounds that the records disclosed personal information. The Ontario Commissioner held that the involvement of an individual in a criminal prosecution does not vitiate the individual's privacy rights under the Ontario Act and that disclosure of the records was not necessary to advise the public interest in the administration of justice. The Commissioner held that the [requestor's] interest in the records, which was "essentially a private interest related to private litigation", did not outweigh the purpose of the Ontario Act's exemption from disclosure for personal information.

TABLE OF AUTHORITIES

Canada

19(1) ATIA

Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 (T.D.); (1988) 5W.W.R. 151; (1988) 59 Alta. C.R. (2d) 353; 18FTR 15 (T.D.)

Robertson v. Canada (Minister of Employment and Immigration), [1987] 42 D.L.R. (4th) 552; 13 F.T.R. 120 (T.D.)

Canada (Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.).

(Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.).

(Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395 (1989) 64 D.L.R. (4th) 413; 28 C.P.R. (3d) 301; 32 F.T.R. 161 (T.D.).

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.).

Dagg v. Canada (The Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403

Tridel Corp. v. Canada Mortgage and Housing Corp., (1996), 115 F.T.R. 185.

Wells v. Canada (Minister of Transport), (May 9, 1996), T-775-92, T-1728-92, T-1938-92 (F.C.T.D.)

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No 779, June 8, 2000 (F.C.A.).

Paragraph 3(b)

Noel v. Great Lake Pilotage Authority Limited, [1988] 2 F.C. 77; 45 D.L.R. (4th) 127; 20 F.T.R. 257 (T.D.).

Robertson v. Canada (Minister of Employment and Immigration), [1987] 42 D.L.R. (4th) 552; 13 F.T.R. 120 (T.D.)

Grimard v. Canada (Canadian Human Rights Commission), (November 23, 1994), T-1461-94 (F.C.T.D.)

Dagg v. Canada (Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403

Sutherland v. Canada (Minister of Indian & Northern Affairs et al.), (6 May 1994) T-2573-93 (F.C.T.D.)

Paragraph 3(i)

Dagg v. Canada (Minister of Finance), (November 8, 1993), T-2662-91 (F.C.T.D.). This point confirmed by the F.C.A. [1995] 3 F.C. 199 at 223; [1997] 2 S.C.R. 403

Noel v. Great Lake Pilotage Authority Limited, [1988] 2 F.C. 77; 45 D.L.R. (4th) 127; 20 F.T.R. 257 (T.D.).

MacKenzie v. Canada (Department of National Health & Welfare), (13 November 1994), T-1052-91 (F.C.T.D.)

Paragraph 3(j) - (m) P.A. - General

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.).

Sutherland v. Canada (Minister of Indian & Northern Affairs et al.), (6 May 1994) T-2573-93 (F.C.T.D.)

Paragraph 3(j)

MacKenzie v. Canada (Department of National Health & Welfare) (13 November 1994), T-1052-91 (F.C.T.D.)

Canada (Information Commissioner) v. Canada (Minister of Fisheries and Oceans), [1989] 1 F.C. 66 (T.D.).

Information Commissioner) v. Canada (Solicitor General), [1988] 3 F.C. 551 (T.D.).

Terry v. Canada (Minister of National Defence), (November 10, 1994), T-845-94 (F.C.T.D.)

(Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395 (1989) 64 D.L.R. (4th) 413; 28 C.P.R. (3d) 301; 32 F.T.R. 161 (T.D.).

Rubin v. Canada (The Clerk of the Privy Council) (25 March 1993), T-2651-90, T-1587-91 & T-1391-92 (F.C.T.D.)

Paragraph 3(l)

(Information Commissioner) v. Canada (Secretary of State for External Affairs), [1990] 1 F.C. 395 (1989) 64 D.L.R. (4th) 413; 28 C.P.R. (3d) 301; 32 F.T.R. 161 (T.D.).

Bland v. Canada (National Capital Commission), [1991] 3 F.C. 325; 41 F.T.R. 202, 4 Admin D.L.R. (2d) 171; 36 C.P.R. (3d) 289 (T.D.)

Rubin v. Canada (The Clerk of the Privy Council), (25 March 1993), T-2651-90, T-1587-91 & T-1391-92 (F.C.T.D.)

Sutherland v. Canada (Minister of Indian & Northern Affairs et al.), (6 May 1994) T-2573-93 (F.C.T.D.) .

Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), (1996), 70 C.P.R. (3d) 37, under appeal A-828-96.

Paragraph 3(m)

Canada (Information Commissioner) v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 63 (T.D.).

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.).

Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), (1996), 70 C.P.R. (3d) 37, under appeal A-828-96

Paragraph 19(2)(a) ATIA

Canada (Information Commissioner) v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 63 (T.D.).

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No 779, June 8, 2000 (F.C.A.)

Paragraph 19(2)(b) ATIA

MacKenzie v. Canada (Department of National Health & Welfare), (13 November 1994), T-1052-91 (F.C.T.D.)

Terry v. Canada (Minister of National Defence), (November 10, 1994), T-845-94 (F.C.T.D.)

Paragraphs 19(2)(a) & (b) ATIA

Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), (1996), 70 C.P.R. (3d) 37, under appeal A-828-96

Paragraph 19(2)(c) ATIA - Section 8 P.A.

Grimard v. Canada (Canadian Human Rights Commission), (November 23, 1994), T-1461-94 (F.C.T.D.)

Grand Council of the Crees (of Quebec) v. Canada (Minister of External Affairs and International Trade), (June 27, 1996), T-1681-94, (F.C.T.D.)

Sutherland v. Canada (Minister of Indian & Northern Affairs et al.), (6 May 1994) T-2573-93 (F.C.T.D.)

Robertson v. Canada (Minister of Employment and Immigration), [1987] 42 D.L.R. (4th) 552; 13 F.T.R. 120 (T.D.)

Bland v. Canada (National Capital Commission), [1991] 3 F.C. 325; 41 F.T.R. 202, 4 Admin D.L.R. (2d) 171; 36 C.P.R. (3d) 289 (T.D.)

MacKenzie v. Canada (Department of National Health & Welfare), (13 November 1994), T-1052-91 (F.C.T.D.)

Rubin v. Canada (The Clerk of the Privy Council), (25 March 1993), T-2651-90, T-1587-91 & T-1391-92 (F.C.T.D.)

Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services), (1996), 70 C.P.R. (3d) 37, under appeal A-828-96

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No 779, June 8, 2000 (F.C.A.)

Ontario

P-273, M-18, M-102, M-30, M-210, M-378

The Questions

Subsection -- 19(1) & (2)

Exemption: PERSONAL INFORMATION

19(1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.

19(2) The head of a government institution may disclose any record requested under this Act that contains personal information if

  1. the individual to whom it relates consents to the disclosure;
  2. the information is publicly available; or
  3. the disclosure is in accordance with section 8 of the Privacy Act.

Statement of Test to be Met

Inquiry Path

Relevant Questions Departmental Response Assessment

Is the information 'personal information' under paragraphs 3(a) to (i) of the Privacy Act?

  • Is it information about an identifiable individual?

If so, is the information also described in paragraphs 3(j) - (m) of the Privacy Act?

  • If so, information is not personal information.
  • If not, investigate applicability of section 19(2) of Access to Information Act.

Does section 19(2) apply?

Is the information publicly available (paragraph 19(2)(b)); or

does the individual consent to disclosure (paragraph 19(2)(a)); or

does section 8 of the Privacy Act apply?

  • does paragraphs 8(2)(a) - (l) apply; or
  • does paragraph 8(2)(m) apply
    • clear benefit to individual (sub-paragraph 8(2)(m)(ii)); or
    • public interest in disclosure (sub-paragraph 8(2)(m)(i)).
   

Subsection 19(1)

Exemption: PERSONAL INFORMATION

19(1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains personal information as defined in section 3 of the Privacy Act.

3. In this Act, 'personal information' means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

Statement of Test to be Met

Information about an identifiable individual

Relevant Questions Departmental Response Assessment
Does the information relate to a person other than the requestor?    

Statement of Test to be Met

Must be able to identify the individuals

Relevant Questions Departmental Response Assessment

To whom does the information relate?

Does the access request describe this person?

   

Statement of Test to be Met

Linkage of information to identifiable individuals must be clear and direct

Relevant Questions Departmental Response Assessment

If the information does not relate to a named individual, is it possible to identify the individual from the information in the record?

  • How?

Does the information describe or relate to inclusion of individuals in a group?

  • Describe the group
  • What characteristics does the group have?
   

Statement of Test to be Met

  • Look for specific characteristics of members of group.
  • Must be small and specific enough to identify individuals in the group.

 

Relevant Questions Departmental Response Assessment

Are members of the group identified by personal characteristics?

  • Race, religion, age, gender
  • Professional or other qualifications
  • Medical status
  • Citizenship status
  • By employment status
  • By participation in financial transactions
  • By ownership of property, assets, shares In a company
  • By personal interests
  • By participation in an event

Is it possible to identify individuals as members of this group?

  • How big is the group?
  • Over what geographic area are its members?

Is there other information in the record that links an identifiable individual with the group

  • How?
   

Statement of Test to be Met

Information must be 'about' the identifiable individual

Relevant Questions Departmental Response Assessment
Is the individual described in a way that is personal?    

Statement of Test to be Met

Information must be specific to the individual

Relevant Questions Departmental Response Assessment

Does the information relate directly to the individual?

  • How?

If not, how does the information relate to the individual?

   

Statement of Test to be Met

Must be personal in nature

Relevant Questions Departmental Response Assessment
Is there a meaningful connection between the information and the individual?    

Statement of Test to be Met

Cannot be so general as to not relate in a meaningful way to the individual

Relevant Questions Departmental Response Assessment

Would another person reasonably ascribe to the individual the qualities, characteristics or financial information described in the record?

[questions above about inclusion of individuals in a group are also relevant here]

   

Section - 19

  1. Information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual.
  2. Information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved.
  3. Any identifying number, symbol or other particular assigned to the individual.
  4. The address, fingerprints or blood type of the individual.
  5. The personal opinions or views of the individual except where they are about another individual or about a proposal for a grant, an award or a prize to be made to another individual by a government institution or a part of a government institution specified in the regulations.
  6. Correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence.
  7. The views or opinions of another individual about the individual.
  8. The views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual by an institution or a part of an institution referred to in paragraph (e), but excluding the name of the other individual where it appears with the views or opinions of the other individual.
  9. The name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would reveal information about the individual.

Statement of Test to be Met

Paragraphs 3(a), (b) and(d)

Information must identify an individual

  • physical characteristics
  • personal activities
  • personal status
Relevant Questions Departmental Response Assessment
     

Statement of Test to be Met

 

Relevant Questions Departmental Response Assessment

Does the information describe general characteristics of a group?

If so, how is the information related to the individual?

Is the individual connected to the information?

  • Elsewhere in the record?
  • By deduction through other sources?
    • telephone books
    • other publications

Are the sources publicly available?

Is it easy to connect the individual with the information using these sources, financial transactions or financial position?

   

Statement of Test to be Met

Must be specific in relation to the individual

Relevant Questions Departmental Response Assessment

Does the information ascribe personal characteristics to an individual?

  • race
  • national or ethnic origin
  • colour
  • religion
  • age

Does the information record the voice of an identifiable individual?

Does the information attribute physical characteristics to an individual?

  • disability
  • illness
  • past illness
  • sexual orientation
  • medical history
  • blood type

Does the information describe activities that are personal to an individual?

  • schooling, education, courses
  • personal financial situations
  • personal financial management
  • membership in groups
  • employment or employment history

Does the information describe the status of the individual?

  • marital status
  • family status
  • citizenship status
  • immigration status
  • criminal history or status
  • address, living arrangements

Does the request identify such personal characteristics or circumstances?

   

Statement of Test to be Met

  • Contractual relationships.
  • Watch for connections with 3(j), (k) and (l).
Relevant Questions Departmental Response Assessment

Does the information describe average income, expenditure, net worth of members of a group?

Are these average amounts meaningful indicators of the financial status of the individual?

Does the information confirm the participation of a specific individual in a financial transaction?

If not, does the information provide a meaningful indication of the participation of the individual in a financial transaction?

  • How?

Is the financial transaction personal in nature?

Does the transaction relate to the job of the individual?

Did the individual have responsibility for the transaction as a function of his or her position or job?

Is this a government job?

Does the information describe a contract in which the individual is involved?

Is this a contract for personal services?

  • By the individual
  • By the individual's employer

If so, is the contract with the government?

  • Does section 3(k) or (l) apply?

Is it a contract by the individual for services from someone else?

  • Are the services personal to the individual
    • accounting
    • legal
    • other services

Is the contract for services related to the job or position of the individual?

  • If so, did the individual sign the contract in their capacity as an officer or employee?
    • For the benefit of an organization, as opposed to the individual?
   

Statement of Test to be Met

Paragraph 3(b) -- Employment history

  • watch for section 3(j), (k) and (l)
Relevant Questions Departmental Response Assessment

Does the record reveal an individual's employment or employment history?

  • If so, is this in a context where it is personal to the individual?
  • Or is the individual acting in an official capacity or by virtue of his job or position?
  • Or was/is the employment with the government?
    • Does section 3(j) apply?
  • Is the employment in connection with a government contract?
    • Does section 3(k) apply?
  • Did the employment result from a government appointment?
    • Does section 3(j) or (l) apply?
   

Statement of Test to be Met

Paragraph 3(c) -- Personal Identification

Identifying number, symbol or other particular assigned by the individual

Must relate to the individual in their personal capacity

Other particulars assigned to the individual

  • Must identify the individual
Relevant Questions Departmental Response Assessment

If the information reveals an address, is it the address of an identifiable individual?

Is it a home or other residential address?

  • If not, how is the address connected to the individual?

Is it a business address or address of a group?

  • If so, does the record identify the individual in a personal capacity or in an official capacity?
  • If the person is identified in an official capacity, is the business address connected with the group or organization or does it relate to the individual?
   

Statement of Test to be Met

Paragraph 3(d)

  • Address, fingerprints, blood type.
Relevant Questions Departmental Response Assessment

Does the information assign a number, symbol or other identifier to an individual?

Does this identifier relate to the individual alone or does it identify a group of individuals?

  • If it identifies a group of individuals, is there a meaningful connection with an identifiable individual?
  • Does the group designation identify personal characteristics or other personal information about the individual?
    • i.e., membership in a club, religious organization
    • Membership in another group
    • Level of education
    • Professional designation

Is the identifier connected with other personal information identifying the individual?

  • i.e., name, address
  • If not, can the identity of the individual be determined from the identifier?
    • How?
  • Through publicly available sources?
  • Through other information in the record?
    • Specify other information.
    • How does this information identify the individual?

Does the identifier relate to the individual in their personal capacity?

  • Is the identifier assigned to the individual or does it relate to a position or job filled by the individual?
  • i.e., security clearances
  • Does the information requested relate to a security clearance assigned to a job?
  • Does the information requested relate to the level of security clearance of an individual?
   

Statement of Test to be Met

Paragraphs 3(e), (g) and (h)

Views and Opinions.

Watch for section 3(j)(v), 3(k).

  • Must be view/opinion of an individual.
  • Were they are about another individual?
  • Can only be disclosed to the other individual.

Proposals for grants award and prizes by a government institution.

  • Can disclose views to the person about whom the views or opinions are expressed, without the name.
Relevant Questions Departmental Response Assessment

Does the information set out the views and opinions of an identifiable individual?

Does paragraph 3(j)(v) apply?

  • Is it the view or opinion expressed by an officer or employee of a government institution?
    • If so, was it given in the course of employment?
  • Is it the view or opinion of someone on contract to provide services to the government?
  • Is it expressed in the course of performance of contract or of providing services?
  • Is it the opinion or view of the individual or of the organization or firm that the individual is representing?

If it is the opinion or view of the individual, is it a personal opinion or conveyed in an official capacity?

Does the opinion or view represent the opinion or views of a group?

Does the information convey an opinion or view?

  • Is the information a recommendation as opposed to an opinion or view?

Does the information recite or analyze facts as opposed to expressing an opinion or view?

What does the opinion or view consist of?

Is the opinion or view about another individual?

  • If so, is the requestor the individual about whom the opinion or view was expressed?
  • If so, it can be disclosed under the Privacy Act?
  • If not, it cannot be disclosed unless paragraph 3(h) applies.

Is the opinion or view about a proposal for a grant, award or prize to be given to someone else?

  • If so, is the requestor the person to whom the grant, award or prize would be given?
  • If so, opinion may be disclosed to that requestor.
  • If requestor is someone else, opinion or view cannot be disclosed without effective severance.
  • Would severance of the name of the individual giving the opinion or view, and severance of the name of the individual about whom the opinion was expressed still identify the individuals concerned?
  • If so, how would the individuals be identified?

Is there other information in the record which would identify the individuals?

Is the nature of the grant, award or prize such that potential recipients can be easily identified?

  • Through publicly available sources?

Is the information about the grant, award or prize such that individuals judging or awarding grants can be easily identified?

  • From publicly available sources?

Is the grant, award or prize being awarded by a government institution specified in the regulations to the Privacy Act

  • If not, information is personal information and cannot be disclosed.
   

Paragraph 3(f)Privacy Act

Private and confidential correspondence

  • content must be personal and private in nature
  • does not apply to official correspondence

Watch for section 3(j)

  • does not apply to correspondence on a public issue
  • can be implicit
  • based on content of information
  • reply must reveal content of information

Watch for section 3(l)

Severance important

Statement of Test to be Met

Paragraph 3(i) --Names

names of individuals

  • must appear with other personal information; or
  • where name itself reveals information about the individual

Watch for section 3(j), (k) Severance must be considered

Relevant Questions Departmental Response Assessment

Does the information include names of individuals?

What other personal information appears with the name?

Is the information that appears with the name personal in nature?

  • Does the information relate to a job responsibility or function?
  • Does it relate to the position of the individual?
  • Is the individual employed by the government?
  • Does section 3(j) apply?

Does the name appear in the context of an individual dealing with the government as a representative of an organization or for a business purpose?

  • If so, name does not appear with other personal information?

Would the name itself reveal information about an identifiable individual?

  • Does the request relate to the personal characteristics or personal information about an individual?

Is there other information in the record which connects the name with personal information?

Does the person involve have a high public profile?

  • If so, does inclusion of that person's name in this document reveal information about the individual which is not already publicly known?

Does the title or heading in the document create personal information about the individuals named in the document?

  • How?

Would severance of the name leave information in the record which still identifies the individual?

  • If so, how?
  • From publicly available sources?
  • How accessible are these sources?
   

Statement of Test to be Met

 

Relevant Questions Departmental Response Assessment

Does the record consist of correspondence by an individual with a government institution or government official?

Is the correspondence private or confidential in nature?

What does the correspondence relate to?

Is the correspondence sent by the individual in their personal capacity?

Is the information sent by an individual representing a group or organization?

  • If so, is the correspondence being sent from the group?
  • Is it being sent by the individual as a member of the group, but in their individual capacity?
    • i.e., whistle blowing letters.
    • Letters making personal suggestions about improvements to an organization?
    • Why is this content private and confidential in nature?

Does the correspondence relate to the position or functions of a government employee?

  • If so, is the correspondence sent by that government employee?

Is the correspondence sent by another government employee?

Is the correspondence sent by the government employee in their capacity as a government employee, or in their capacity as an individual?

Is the content of the correspondence routine?

Is the content of the correspondence administrative in nature?

Does the correspondence relate to a public issue or to public policy?

  • If so, is a view or opinion personal to the author being expressed?

Does this correspondence provide recommendations or analysis of a public issue by the author?

Was the correspondence explicitly sent on a private or confidential basis?

Does the person sending the correspondence request confidentiality?

Is the correspondence implicitly confidential or private?

  • Does it relate to the personal affairs or situation of the individual?
  • Does it relate to subject matter described in paragraphs 3(a), (b), (c) or (d)?

Does the reply reveal the content of the original correspondence?

Is the reply confined to matters dealing with public policy?

Does the reply apply government criteria for assistance or such matter to the individual?

Does the correspondence deal with the conferring of a benefit?

  • Is the benefit financial in nature?
  • Is the benefit an entitlement or discretionary?

Would severance of the name of the individual sending the correspondence eliminate the likelihood of the correspondence relating to an identifiable individual?

  • If not, why not?

Could the individual be identified from the correspondence through public, accessible sources?

   

Subsection - 19(3)

3. In this Act,'personal information' means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing… but, for the purposes of sections 7, 8 and 26 and section 19 of the Access to Information Act, does not includeinformation 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 including,

  1. the fact that the individual is or was an officer or employee of the government institution;
  2. the title, business address and telephone number of the individual;
  3. the classification, salary range and responsibilities of the position held by the individual;
  4. the name of the individual on a document prepared by the individual in the course of employment; and
  5. the personal opinions or views of the individual given in the course of employment.

Statement of Test to be Met

Officers and employees of government institution

  • must relate to position or function of individual
    • performance in the function is not included
    • personnel evaluations not included

Includes:

  • Employment history with the government
  • When employment with government ceased
  • Period of time employed by government
  • Position, title, location
  • General information about the duties and functions performed by the individual
  • Classification and salary range of position
  • Per diems, specific salaries not included

Identification of individual in course of employment

  • Documents by individual
  • Views and opinions of individual

Watch for paragraph 3(l)

Relevant Questions Departmental Response Assessment
     

Section - 19

'Personal information' means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

(k) information about an individual who is or was performing services under contract for a government institution that relates to the services performed, including the terms of the contract, the name of the individual and the opinions or views of the individual given in the course of the performance of those services

Statement of Test to be Met

  • Must be a contract for services
  • Relates to paragraph 21(2)(b)
  • Does not include evaluation of performance under the contract

 

Relevant Questions Departmental Response Assessment

Does the information relate to a contract for services between an individual and the government?

Is the individual employed pursuant to such a contract?

Does the individual perform services under the contract for the government institution?

Does the information relate to the terms of the contract?

Does the information relate to conclusions or views of the individual given in the course of the contract?

Does the information relate to an evaluation of the individual's performance under the contract?

   

Section - 19

'Personal information' means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

(l) information relating to any discretionary benefit of a financial nature, including the granting of a licence or permit, conferred on an individual, including the name of the individual and the exact nature of the benefit,

Statement of Test to be Met

Discretionary benefit of a financial nature

  • benefit must be discretionary
  • must confer a financial benefit
    • licence or permit must confer a financial benefit
    • discounts, lower than market rates, subsidies are included
    • does not apply to salarial compensation
Relevant Questions Departmental Response Assessment

Is the benefit conferred by a government institution?

Is the benefit discretionary?

  • Does the benefit result from the application of known criteria to an individual?
  • Does the benefit result from decisions on a case by case basis?
  • Does the benefit result from a lottery?
  • Is the benefit allocated on a first come first served basis?
  • Is the benefit allocated on the basis of individual decisions or individual consideration of applications by individual?
    • i.e., application for tenancy.

Is a financial benefit conferred

  • If a licence or permit is involved, what financial benefit is derived from it?
  • Are discounts, lower than market rate amounts or subsidies included?
    • What do these consist of?

Does the benefit relate to salarial compensation?

  • If so, see above under paragraph 3(j).
   

Statement of Test to be Met

 

Relevant Questions Departmental Response Assessment

Does the information relate to an individual who is an officer or employee of a government institution?

Is the government institution listed in the Schedule of the Access to Information Act/Privacy Act?

Is the employee currently employed by a government institution?

If not, was the person ever employed by a government institution?

  • Over what period of time?

Is the information described in subparagraphs (I)-(v)?

  • If not, does the information relate to the position or functions of the individual while an employee is in a government institution?

Generally, does the information relate to the general duties or activities connected with or required by the position, i.e.,

  • attendance logs
  • workplace phone logs (?)
  • e-mails

Information not covered by 3(j)

Is the information related to the individual's performance?

  • Is the information in the nature of a personnel evaluation or assessment? (remains exempt)

Does the information describe the effectiveness of the individual in performing the function?

Does the information describe the effectiveness of the individual in dealing with an issue for which the individual has responsibility?

Does the information relate to the employment history of the individual with the government?

  • If so, is this information restricted to information relating to positions or functions or responsibilities held by the individual?

Is it related to information contained in subpararagraphs (I) through (v)?

Does the information describe personal accomplishments or failures of the individual?

Does the information relate to how an individual is affected by government reorganization?

Does the information relate to changes in the responsibilities assigned to an individual?

  • Does this arise as a result of performance by the individual in their current position?
  • Does the change in responsibilities relate to the individual or to the reorganization affecting the position?

With respect to documents prepared by the individual:

  • does the information relate to grievance or discipline meetings or investigation of harassment complaints
  • If so, was the individual the griever or an employee being disciplined?
  • Was the individual present as a function of their government position or responsibilities?

Does the information relate to compensation given to a government employee?

  • If so, does the information disclose the salary or a per diem rate paid to an employee or officer?
  • Does the information describe an employment benefit received by an individual?
    • If so, is the benefit received as part of the salary of the individual?
    • Is the benefit attached to or come with the position held by the individual?
    • Does the benefit given to employees on a case by case basis?
    • Is the benefit given on a first come first served basis?
    • Is the benefit discretionary in nature?

Does the information describe a settlement of employment conditions between the individual and the government institution?

Does the information describe a severance package?

  • If so, is the severance package negotiated to avoid litigation?
  • Was the severance package determined by the application to the individual of government policy?
   

Section - 19

'Personal information' means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,

(m) information about an individual who has been dead for more than twenty years;

Statement of Test to be Met

Individual has been dead for more than twenty years

  • government institution must have reasonable basis for concluding section 3(m) does not apply
  • government institution must undertake some examination
  • assess against the period of time described in the information
Relevant Questions Departmental Response Assessment

Does the information relate to an individual who could be dead for more than twenty years?

Has the government institution investigated this possibility?

  • If not, why not?

What period of time does the information relate to?

Is there a possibility the individual could have been dead?

Would this fact be known using available public sources?

  • examination in the public archives
  • examination in public libraries
  • on databases available to the government
   

Subsection - 19(2)

The head of a government institution may disclose any record requested under this Act that contains personal information if

  1. the individual to whom it relates consents to the disclosure;
  2. the information is publicly available; or
  3. the disclosure is in accordance with section 8 of the Privacy Act.

Statement of Test to be Met

Consent of individual to whom information relates

  • implicit or explicit
  • look at consent provided under the Privacy Act
Relevant Questions Departmental Response Assessment

Has the individual consented to disclosure of the information?

Has the government institution sought consent of the individual?

  • If so, was consent refused?
  • Why was consent refused?
  • If not, why was consent not sought?

Has the individual provided an explicit direction to the government not to disclose the information?

Has the individual provided consent to disclosure under the provisions of the Privacy Act?

Has the individual implicitly consented to disclosure of the information?

See questions on whether information is publicly available.

Has the individual consented in the past to disclosure of the record?

Has the individual consented to disclose parts of the information?

Has the individual consented to disclose a version of the information which eliminates highly sensitive matters?

  • i.e. where monetary compensation is involved, disclosure of a range or other description (six months' salary) as opposed to specific amounts
   

Subsection - 19(2)

The head of a government institution may disclose any record requested under this Act that contains personal information if

  1. the individual to whom it relates consents to the disclosure;
  2. the information is publicly available; or
  3. the disclosure is in accordance with section 8 of the Privacy Act.

Statement of Test to be Met

Consent of individual to whom information relates

  • implicit or explicit
  • look at consent provided under the Privacy Act
Relevant Questions Departmental Response Assessment

Has the individual consented to disclosure of the information?

Has the government institution sought consent of the individual?

  • If so, was consent refused?
  • Why was consent refused?
  • If not, why was consent not sought?

Has the individual provided an explicit direction to the government not to disclose the information?

Has the individual provided consent to disclosure under the provisions of the Privacy Act?

Has the individual implicitly consented to disclosure of the information?

See questions on whether information is publicly available.

Has the individual consented in the past to disclosure of the record?

Has the individual consented to disclose parts of the information?

Has the individual consented to disclose a version of the information which eliminates highly sensitive matters?

  • i.e. where monetary compensation is involved, disclosure of a range or other description (six months' salary) as opposed to specific amounts
   

Exemption: Personal Information

Section 8 -- Privacy Act

8(1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.

(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed

  1. for the purpose for which the information was obtained or compiled by the institution for a use consistent with that purpose;
  2. for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure;
  3. for the purpose of complying with a subpoena or warrant issued or order made by a court, person or body with jurisdiction to compel the production of information or for the purpose of complying with rules of court relating to the production of information;
  4. to the Attorney General of Canada for use in legal proceedings involving the Crown in right of Canada or the Government of Canada;
  5. to an investigative body specified in the regulations, on the written request of the body, for the purpose of enforcing any law of Canada or a province or carrying out a lawful investigation, if the request specifies the purpose and describes the information to be disclosed;
  6. under an agreement or arrangement between the Government of Canada or an institution thereof and the government of a province, the government of a foreign state, an international organization of states or an international organization established by the governments of states, or any institution of any such government or organization, for the purpose of administering or enforcing any law or carrying out a lawful investigation;
  7. to a member of Parliament for the purpose of assisting the individual to whom the information relates in resolving a problem;
  8. to officers or employees of the institution for internal audit purposes, or to the office of the Comptroller General or any other person or body specified in the regulations for audit purposes;
  9. to the National Archives of Canada for archival purposes;
  10. to any person or body for research or statistical purposes if the head of the government institution
    1. is satisfied that the purpose for which the information is disclosed cannot reasonably be accomplished unless the information is provided in a form that would identify the individual to whom it relates, and
    2. obtains from the person or body a written undertaking that no subsequent disclosure of the information will be made in a form that could reasonably be expected to identify the individual to whom it relates;
  11. to any association of aboriginal people, Indian band, government institution or part thereof, or to any person acting on behalf of such association, band, institution or part thereof, for the purpose of researching or validating the claims, disputes or grievances of any of the aboriginal peoples of Canada;
  12. to any government institution for the purpose of locating an individual in order to collect a debt owing to Her Majesty in right of Canada by that individual or make a payment owing to that individual by Her Majesty in right of Canada; and
  13. for any purpose where, in the opinion of the head of the institution,
    1. the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or
    2. disclosure would clearly benefit the individual to whom the information relates.

Statement of Test to be Met

Provisions requiring an Access to Information Request

  • Paragraph 8(2)(a)
  • Disclosure authorized for a use consistent with the purpose for collecting the information

Determine why information was collected Determine the likely use of information if disclosed

  • Are these consistent with one another?
Relevant Questions Departmental Response Assessment
     

Statement of Test to be Met

Paragraph 8(2)(b)

  • For any purpose where a statute or regulation authorizes disclosure
Relevant Questions Departmental Response Assessment

Was the information generated pursuant to a statutory provision or regulation?

  • specify the provision

Does the statute or regulation require individuals outside the government to provide the information?

Does the statute or regulation allow disclosure of the information?

  • under what circumstances?

Is disclosure controlled?

How is disclosure controlled?

In what circumstances does the statute or regulation authorize disclosure?

  • to specified individuals

Is the requestor a person to whom disclosure would be authorized?

   

Statement of Test to be Met

 

Relevant Questions Departmental Response Assessment

Would disclosure of the information be for a use consistent with the original purpose behind collecting the information?

To determine if this is the case:

Why was the information originally collected?

How is the information likely to be used if it is disclosed?

What is the reason that the information has been requested?

Is there a meaningful connection between the requestor and the information requested?

  • If so, what is the purpose for which this requestor has requested the information?

Is the likely use of the information consistent with the original purpose for collecting it?

Does the personal information concern individuals who are parties to a proceeding?

  • investigation of harassment complaints
  • disciplinary matters
  • staffing matters

Was the information collected in connection with this proceeding?

Is a party to the proceeding requesting the information?

Would disclosure of the information otherwise be given to the party in the course of the proceedings?

Would disclosure of the information to the requestor ordinarily take place?

Does the requestor want the information for a government purpose?

  • if this is the case, ask why the requestor had to use the Access to Information Act to get the information?

Does the requestor want the information for personal use?

  • if so, is this use connected with a government activity?
  • would use of the information outside of the government ordinarily take place?

Is use of the information outside of the government consistent with the reason the government obtained or generated the information?

   

Statement of Test to be Met

Paragraph 8(2)(j) Research or statistical purposes

  • Determine if it is possible to disclose without identifying the individual
  • Ensure undertaking is provided not to identify individual in subsequent disclosure
Relevant Questions Departmental Response Assessment

Is the information requested for researchers' statistical purposes?

Are there measures that can be taken to disclose the information without identifying the individual?

  • Would these measures compromise the research or statistical validity of the information?
    • if so, how?

Would the government institution be able to create a record which would avoid disclosing the identity of the individual?

Has the requestor provided an undertaking not to identify any individuals in subsequent disclosure?

What does this undertaking consist of?

Is the undertaking enforceable?

Has the requestor established that the information is required for a research or a statistical purpose?

What is being researched?

Why are the statistics being generated? What will the statistics show?

How will the research or statistics be used?

   

Statement of Test to be Met

Public Interest Override

Paragraph 8(2)(m)

For any purpose where, in the opinion of the head of the government institution

  • the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure

Opinion of the head of institution

  • discretionary power
  • assess on basis of relevant considerations

Standard of proof is high

  • clearly outweighs any invasion of privacy

Standard of proof quantifying privacy interest is low

  • any invasion of privacy that could occur

Public interest in disclosure

  • characterize the public interest in disclosure
  • quantify its importance
Relevant Questions Departmental Response Assessment

What are the reasons favouring disclosure of this information?

Does the information relate to a private interest only, or does it relate to a matter of public concern?

Do these reasons relate to a public concern for interest?

Is there general public interest in knowing the information?

Is the information of use to the requestor only, or to a broader public group?

Would disclosure of the information subject the activities of the government to public scrutiny?

Would disclosure of the information reassure the public about government activity?

Would disclosure of the information promote public health and safety?

Would disclosure of the information assist the requestor in obtaining a fair determination of his or her rights?

Would disclosure of the information inform the public about the consumer issues?

Does the information concern an investigation into activity which is likely to generate significant public interest?

Why are the reasons in favour of disclosure compelling?

   

Statement of Test to be Met

Any invasion of privacy?

  • characterize/quantify the invasion of privacy
  • assess the likelihood of an invasion of privacy
  • identify any mitigating measures that would reduce the invasion of privacy
Relevant Questions Departmental Response Assessment

What is the invasion of privacy that will result if the information is disclosed?

How serious is the invasion of privacy?

Is the personal information involved of a highly sensitive nature?

Would the individual to whom the personal information relates be unfairly exposed to financial harm?

  • to loss of reputation
  • to questioning about personal characteristics
  • to questions about the individual's personal integrity
  • to threats to the individual's safety

Is the personal information involved accurate or reliable?

  • if not, question what the public interest in disclosure would be.

Was the personal information supplied in confidence to the government institution?

  • was it supplied in the course of a confidential relationship?
  • doctor/patient
  • religious counselling
  • psychological or other counselling

What is the likelihood of harm from disclosure?

What is the likelihood of the above invasions of privacy?

Can the government institution sever the information in order to reduce the invasion of privacy?

Can the government institution provide an explanatory note or take other measures to reduce the invasion of privacy

   

Statement of Test to be Met

Balance the interests

  • weigh the likelihood and degree of invasion of privacy against reasons in favour of disclosure
  • assess which are more important
  • note that courts have stated disclosure in and of itself is an important public interest

Standard of Proof

  • do the reasons favouring disclosure to the public clearly outweigh the invasion of privacy
Relevant Questions Departmental Response Assessment

Do the reasons in favour of disclosure outweigh the likelihood and degree of the invasion of privacy?

Is the public interest compelling?

Is the invasion of privacy minimal or serious in nature?

What factors were taken into account by the head of the government institution?

Are these consistent with the purpose of the Access to Information Act?

  • disclosure is the general rule and exceptions to disclosure are limited and specific

Are the factors consistent with the purpose of the Privacy Act?

  • to protect the privacy of individuals with respect to personal information about themselves

Are the reasons for not disclosing the information proper?

  • is the information not being disclosed in order to avoid embarrassment
  • is the information not being disclosed in order to avoid a scrutiny of government operations
  • is the information not being disclosed in order to avoid public misunderstanding or debate

Are the reasons for not disclosing relevant to the purpose of avoiding invasion of privacy of the individuals concerned?

   

Statement of Test to be Met

Sub-paragraph 8(2)(m)(ii)

Clear benefit to the individual

  • look at likely use of the information
  • would the individual otherwise know about the benefit
  • is the benefit significant
  • mitigating measures to minimize invasion of privacy
    • undertakings
Relevant Questions Departmental Response Assessment

Would disclosure clearly benefit the individual about whom the information relates?

What is the likely use of the personal information?

Would the individual otherwise know about the benefit?

  • is the individual aware of the benefit?

What kind of benefit is involved?

  • Is it a financial benefit?

How large is the benefit?

Would disclosure of the information apprise the individual of a medical risk?

  • Would this information benefit the individual?

Has the individual about whom the information relates sought this information in the past?

Are there mitigating measures the institution can take to minimize the invasion of privacy?

Can the institution obtain an undertaking from the requestor not to use the information for purposes other than benefiting the individual?

Is this undertaking enforceable?

   

Footnotes

Footnote 1

Note that this criteria is significantly different from other exemptions such as subparagraph 16 (1)(c)(ii) [Information the disclosure of which could reasonably be expected to reveal the identity of a confidential source of information] or section 17 [information the disclosure of which could reasonably be expected to threaten the safety of individuals]. In these two exemptions, the particular knowledge of the requester can be an important since it could a direct bearing on the reasonable expectation of harm.

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Footnote 2

X v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.).

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Footnote 3

Sutherland v. Canada (Minister of Indian & Northern Affairs et al.), (6 May 1994) T-2573-93, (F.C.T.D.).

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Footnote 4

X. v. Canada (Minister of National Defence), [1992] 1 F.C. 77; 46 F.T.R. 206 (T.D.).

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Footnote 5

Canada (Information Commissioner) v. Canada (Minister of Employment & Immigration), [1986] 3 F.C. 63 (T.D.); Canada (Information Commissioner) v.Canada (Public Works and Government Services) (1996) 70 C.P.R. (3d) 37

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Footnote 6

Ruby v. Canada (Solicitor General, R.C.M.P.), [2000] F.C.J. No. 779, June 8, 2000, (F.C.A.).

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