Follow-up letter to the Chair of the Standing Committee on Access to Information, Privacy and Ethics on Bill C-58

The Honourable Bob Zimmer, P.C., M.P.
Chair, Standing Committee on Access to Information, Privacy and Ethics
House of Commons
Ottawa ON K1A 0A6

 

Dear Mr. Zimmer:

I am writing to you today to follow up to my appearance on November 1st, 2017 during your committee’s study of Bill C-58.

During this appearance I was asked to provide additional information to your committee regarding litigation involving the personal information exemption.

I also wish to correct one factual statement I made to the committee regarding the length of time for mandamus proceedings.

Litigation regarding the personal information exemption

During my testimony on November 1st, 2017, M.P. Nathan Cullen asked

Have you or previous commissioners been found in court to have applied [the personal information exemption] incorrectly, allowed too much personal information out that has contravened the personal information exemption?

At the time, I could only speak to my own time as Information Commissioner.

I have proceeded to the Federal Court with the consent of the requester on two occasions.

In the most recent occasion, Canada (Office of the Information Commissioner) v. Canada (Prime Minister), 2017 FC 827, the Federal Court agreed with my recommendation that the information at issue, related to Senators Mike Duffy, Mac Harb, Patrick Brazeau and Pamela Wallin, was a discretionary benefit of financial nature. Hence, it fit the exception to the definition of personal information and was ordered disclosed.Footnote 1 The Privacy Commissioner was not involved in this litigation.

On the other occasion, the question before the Federal Court was whether the name and business information of corporate employees was personal information. I had recommended at the close of an investigation that this type of information should be disclosed. In my testimony before the committee, I qualified my reason for taking this recommendation to court by noting that

we had several cases with the same complainant in relation to the same information with several institutions, and we were unable to resolve the matter until we got a determination from the court on the interpretation of that information.

In its decision, Information Commissioner of Canada v. Minister of Natural Resources, 2014 FC 917, the Federal Court did not agree with my analysis that the name and business information of corporate employees was not personal information under the Access to Information Act. The Privacy Commissioner was also not involved in this litigation.

After giving this response during my testimony, I committed to provide the committee with any other instances where the exemption for personal information under the Access to Information Act was at issue.

I have now conducted this research. Including the examples I cited during my testimony, I have found that since the Access to Information Act came into force in 1983, there have been nine litigation cases where the Information Commissioner’s interpretation of the exemption for personal information was at issue.Footnote 2 Of these:

  • The Court agreed with the Information Commissioner that the information at issue was not personal information in four instances;Footnote 3
  • The Court disagreed with the Information Commissioner (where the Commissioner found that the information was personal information) and determined the information was not personal information in three instances;Footnote 4 and
  • The Court disagreed with the Information Commissioner (where the Commissioner found the information was not personal information) and determined the information was personal information in two instances.Footnote 5

Of these nine litigation cases, the Privacy Commissioner intervened in three.

Please find attached at Annex I a summary of each of these nine cases.

Length of time for mandamus application

During my testimony on November 1st, 2017, M.P. Saini asked me if, under
Bill C-58, “an order from my office would carry the same weight and binding power as a court certified order without requiring any additional steps.”

In my response, I explained that if government institutions were to sit on an order issued by the Information Commissioner and not provide disclosure, I would have to file a mandamus application at the Federal Court,Footnote 6 which usually takes approximately 18 months to complete. I misspoke and would like to correct this statement.

A mandamus proceeding can take at least six to seven months, although likely longer.

Mandamus proceedings at the Federal Court are initiated under section 18 of the Federal Courts Act. The steps for such a process are as follows:

  1. A Requisition for Hearing is filed by 130 days (just over four months) after the application is made and the required documents by each party are filed in turnFootnote 7
  2. A hearing date is set
  3. A hearing is held
  4. A decision is rendered

These last three steps take at least two to three months, in most cases.Footnote 8

Other intermediary steps could lengthen this process, such as a motion for a confidentiality order, time extensions or the intervention of the requester. 

In contrast, contempt proceedings to enforce certified orders under Rules 466 to 472 of the Federal Courts Rules take a median time of four months.Footnote 9

Some provincial freedom of information laws and some federal laws provide for certification of orders. For your review, please see the attached Annex II for examples of such provisions.

Provisions such as these allow the relevant body, whether it be a commissioner, tribunal, or other decision making authority, to file the order with the court. At the federal level, the order would be filed with the Federal Court.

Contempt proceedings through the Federal Court are more efficient and will ensure more timely access than a mandamus application.

I hope this information proves useful to the committee.

Should the committee or any member wish to have any further information, they may contact Katelyn Edwards, Policy Analyst at 819-994-1652 or at katelyn.edwards@ci-oic.gc.ca.

Yours sincerely,

 

Suzanne Legault, Information Commissioner
Office of the Information Commissioner of Canada

 

Encl.

c.c.: Mr. Nathaniel Erskine-Smith, Vice-Chair
Standing Committee on Access to Information, Privacy and Ethics

Mr. Nathan Cullen, Vice-Chair
Standing Committee on Access to Information, Privacy and Ethics

Hugues La Rue, Clerk
Standing Committee on Access to Information, Privacy and Ethics


Annex I: Litigation involving the Information Commissioner’s Interpretation of Section 19 – 1983 to Current

Examples where the Court agreed with the Information Commissioner

  1. At both the Federal Court and Federal Court of Appeal in Canada (Information Commissioner) v. Canada (RCMP), the courts held that the personal information at issue, which related to previous job postings of RCMP officers, should not be released, contrary to the Information Commissioner's recommendation.

    However, this case was appealed to the Supreme Court of Canada, who reversed the lower courts' decision in Canada (Information Commissioner) v. Canada (RCMP), 2003 SCC 8. The Supreme Court of Canada agreed with the Information Commissioner that the information at issue fell within an exception to the definition of personal information.
    • Note: The Privacy Commissioner intervened at the Federal Court Appeal and Supreme Court of Canada.
       
  2. In Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 429, 2001 FCT 231, the Federal Court disagreed with some of the Information Commissioner's recommendation that the information was not personal information and should be disclosed.
    • The information at issue was names of interviewees who expressed opinions about a Director during an administrative review that resulted in the Director's dismissal, and also the opinions expressed by the interviewees, where the disclosure would reveal identity of the interviewees.
    • The Federal Court only agreed with the Commissioner that the names and opinions of those interviewed managers that had responsibility for preventing harassment in the workplace or for the administration of a harassment policy should be disclosed.

However, this decision was reversed by the Federal Court of Appeal in Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), 2002 FCA 270, who ordered that all of the information at issue should be disclosed, in agreement with the Information Commissioner

  • Note: The Privacy Commissioner intervened at the Federal Court of Appeal.
  1. In Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2005 FC 384, the Federal Court disagreed with the Information Commissioner's recommendation that tapes and transcripts of conversations between air traffic control and aircraft personnel were not personal information.

However, this decision was reversed by the Federal Court of Appeal in Canada (Information Commissioner) v. Canada (Canadian Transportation Accident Investigation and Safety Board), 2006 FCA 157, who agreed with the Information Commissioner that the information should be disclosed.

  • Note: The Privacy Commissioner did not intervene at either court level.
  1. In Canada (Office of the Information Commissioner) v. Canada (Prime Minister), 2017 FC 827, the Federal Court agreed with the Information Commissioner’s recommendation that the information at issue, related to Senators Mike Duffy, Mac Harb, Patrick Brazeau and Pamela Wallin, was a discretionary benefit of financial nature. Hence, it fit the exception to the definition of personal information and was ordered disclosed.
    • Note: The Privacy Commissioner did not intervene at the Federal Court level.

Examples where the Court disagreed with the Information Commissioner and found the information was not personal information

  1. In Robertson v. Canada (Minister of Employment and Immigration), [1987] F.C.J. No. 713, the Federal Court disagreed with the Information Commissioner’s finding that a complimentary closing to a letter (i.e. the writer’s name, position and unit identification within a union) was personal information and should not be disclosed.
    • Note: Neither the Information Commissioner nor the Privacy Commissioner were involved in this litigation.
  2. In Dagg v. Canada (Minister of Finance), the Federal Court ([1993] F.C.J. No. 1185) and Supreme Court of Canada ([1997] S.C.J. No. 63) both disagreed with the Information Commissioner’s finding that weekend sign-in/out logs of employees’ attendance at the workplace was personal information and should not be disclosed.
    • The Federal Court of Appeal ([1995] 3 F.C. 199) agreed with the Information Commissioner’s finding, but this decision was overturned by the Supreme Court of Canada.
    • Note: The Information Commissioner was not involved in any level of this litigation. The Privacy Commissioner intervened at the Federal Court of Appeal and Supreme Court of Canada.
  3. In Geophysical Service Inc. v. Canada-Newfoundland Offshore Petroleum Board, [2003] F.C.J. No. 665, the Federal Court disagreed with the Information Commissioner’s finding that names and job titles of parties accessing geophysical information, and acting only in a capacity as employees of a corporations, was personal information.
    • Note: Neither the Information Commissioner nor the Privacy Commissioner were involved in this litigation.

Examples where the Court disagreed with the Information Commissioner and found the information was personal information

  1. In Canada (Information Commissioner) v. Canada (Minister of National Defence), 2008 FC 766, the Federal Court agreed with the Information Commissioner that some of the personal information in the Prime Minister’s daily agenda books, namely, those appointments related to the Prime Minister’s position or functions as an officer of a government institution, should be excepted from the definition of personal information and disclosed.

However, both the Federal Court of Appeal (2009 FCA 181) and the Supreme Court of Canada (2011 SCC 25) overturned the Federal Court’s decision. In the view of both courts, the Prime Minister was not an “officer” of a department, and therefore, his personal information was not excepted from the definition of personal information, in disagreement with the Information Commissioner.

  • Note: The Privacy Commissioner did not intervene at any court level.
  1. In Information Commissioner of Canada v. Minister of Natural Resources, 2014 FC 917, the Federal Court did not agree with the Information Commissioner’s analysis that the name and business information of corporate employees was not personal information under the Access to Information Act.
    • Note: The Privacy Commissioner did not intervene in this litigation.

Annex II: Statutory Examples of Filing and Certification of Orders

Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165

59.01 (1) Subject to subsection (3), the commissioner may file a certified copy of an order made under section 54.1 or 58 with the Supreme Court.

(2) Subject to subsection (3), a party affected, or a person designated, by an order made under section 58 may file a certified copy of the order with the Supreme Court.

(3) An order may be filed under subsection (1) or (2) only if

(a) the order is not, or is no longer, the subject of an application for judicial review, or the subject of an appeal or further appeal, as the case may be, from a decision on judicial review in respect of the order,

(b) the date by which a person must comply with the order under section 59 (1) or (1.1), as the case may be, has occurred, and

(c) the period for commencing an appeal or further appeal, as the case may be, from a decision on judicial review in respect of the order has expired.

(4) An order filed under this section has the same force and effect, and all proceedings may be taken on it, as if it were a judgment of the Supreme Court.

Freedom of Information and Protection of Privacy Act, RSA 2000, c F-25

Commissioner’s orders

(6) A copy of an order made by the Commissioner under this section may be filed with a clerk of the Court of Queen’s Bench and, after filing, the order is enforceable as a judgment or order of that Court.

Telecommunications Act, S.C. 1993, c. 38

Enforcement in Federal Court

63 (1) A decision of the Commission may be made an order of the Federal Court or of a superior court of a province and may be enforced in the same manner as an order of that court as if it had been an order of that court on the date of the decision.

Procedure

(2) A decision of the Commission may be made an order of a court in accordance with the usual practice and procedure of the court in such matters, if any, or by the filing with the registrar of the court of a copy of the decision certified by the secretary to the Commission.

Effect of revocation or amendment

(3) Where a decision of the Commission that has been made an order of a court is rescinded or varied by a subsequent decision of the Commission, the order of the court is vacated and the decision of the Commission as varied may be made an order of the court in accordance with subsection (2).

Saving

(4) The Commission may enforce any of its decisions whether or not the decision has been made an order of a court.

Broadcasting Act, S.C. 1991, c. 11

Inquiries

12

Mandatory orders

(2) The Commission may, by order, require any person to do, without delay or within or at any time and in any manner specified by the Commission, any act or thing that the person is or may be required to do under this Part or any regulation, licence, decision or order made or issued by the Commission under this Part and may, by order, forbid the doing or continuing of any act or thing that is contrary to this Part, to any such regulation, licence, decision or order or to section 34.1.

Enforcement of mandatory orders

13 (1) Any order made under subsection 12(2) may be made an order of the Federal Court or of any superior court of a province and is enforceable in the same manner as an order of the court.

Procedure

(2) To make an order under subsection 12(2) an order of a court, the usual practice and procedure of the court in such matters may be followed or, in lieu thereof, the Commission may file with the registrar of the court a certified copy of the order, and thereupon the order becomes an order of the court.

Effect of variation or rescission

(3) Where an order that has been made an order of a court is rescinded or varied by a subsequent order of the Commission, the order of the court shall be deemed to have been cancelled and the subsequent order may, in the same manner, be made an order of the court.

Canada’s Anti-Spam Legislation,Footnote 10 S.C. 2010, c. 23

Enforcement

40 (1) A demand served under section 15, a notice served under section 17, an undertaking entered into under section 21 and an order of the Commission made under section 26 may be made an order of a court of competent jurisdiction and may be enforced in the same manner as an order of that court as if it had been an order of that court on the date it was served, in the case of a demand, notice or order, or entered into, in the case of an undertaking.

Procedure

(2) The demand, notice, undertaking or order may be made an order of a court of competent jurisdiction by the filing with the registrar of the court of

(a) a copy of the demand certified by a person designated for the purpose of section 15;

(b) a copy of the notice certified by a person designated for the purpose of section 17;

(c) a copy of the undertaking certified by a person designated for the purpose of section 21; or

(d) a copy of the order certified by the secretary to the Commission.

Rescission or variation

(3) On application by a person designated for the purpose of section 21 and a person who has entered into an undertaking that has been filed in a court of competent jurisdiction, that court must rescind or vary the undertaking if it finds that another undertaking in relation to the same acts or omissions has been entered into by the person.

Canadian Human Rights Act, R.S.C. 1985, c. H-6

Enforcement of order

57 An order under section 53 may, for the purpose of enforcement, be made an order of the Federal Court by following the usual practice and procedure or by the Commission filing in the Registry of the Court a copy of the order certified to be a true copy.
 

Canada Transportation Act, S.C. 1996, c. 10

Enforcement of decision or order

33 (1) A decision or order of the Agency may be made an order of the Federal Court or of any superior court and is enforceable in the same manner as such an order.

Procedure

(2) To make a decision or order an order of a court, either the usual practice and procedure of the court in such matters may be followed or the Secretary of the Agency may file with the registrar of the court a certified copy of the decision or order, signed by the Chairperson and sealed with the Agency’s seal, at which time the decision or order becomes an order of the court.

Effect of variation or rescission

(3) Where a decision or order that has been made an order of a court is rescinded or varied by a subsequent decision or order of the Agency, the order of the court is deemed to have been cancelled and the subsequent decision or order may be made an order of the court.

Option to enforce

(4) The Agency may, before or after one of its decisions or orders is made an order of a court, enforce the decision or order by its own action.


Footnotes

Footnote 1

Please note I have appealed this decision on grounds unrelated to personal information. The Attorney General has also appealed this decision, including on the application of section 19.

Return to footnote 1 referrer

Footnote 2

This analysis does not include litigation that was brought forward by third parties under a section 44 application of the Access to Information Act. This type of litigation occurs before an investigation has been conducted by the Information Commissioner.

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Footnote 3

In 2002, 2003, 2005 and 2017.

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Footnote 4

In 1987, 1997 and 2003.

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Footnote 5

In 2011 and 2014.

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Footnote 6

A mandamus proceeding is where the court is asked to order a public authority to take a positive action. A mandamus order from the court is considered an extraordinary judicial remedy.

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Footnote 7

Timelines are set out in the Federal Courts Rules.

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Footnote 8

This estimate is taken from reviewing s. 18 applications from the Federal Court Registry.

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Footnote 9

This estimate is taken from reviewing contempt proceedings from the Federal Court Registry.

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Footnote 10

An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act.

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