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Who Worked During the Strike?


An individual asked the Canada Revenue Agency (CRA) for the weekly time (attendance) sheets for the employees of CRA’s Charities and Registered Pension Plans Directorates, covering a period during which members of the Public Service Alliance of Canada were on strike. The request gave senior officials of CRA the jitters; two assistant CRA Commissioners decided that the request should be denied, but only after some eleven weeks of internal rumination.

The requester complained to the Information Commissioner, arguing that information about employee attendance is work-related and does not qualify for privacy protection.

Legal Issue

Is information about employee attendance at work during strike periods "personal information" which qualifies for exemption from the right of access under subsection 19(1) of the Act?

The investigation confirmed that CRA had received requests in the past for access to employee time sheets and had always disclosed them, with the exception of employee identification numbers and descriptions of types of leave taken. CRA explained its deviation in this case from usual practice in order to protect the privacy of union employee choice to work during strikes. CRA took the view that reporting for work may be viewed as an expression of the employee’s views regarding the need for solidarity between employees during a strike.

The Information Commissioner was guided by the decision of the Supreme Court of Canada in Dagg v. Canada (Minister of Finance), 2 S.C.R. 403, in which it was decided that information about an employee’s presence in the workplace is not "personal information" for the purposes of subsection 19(1) of the Act, by virtue of paragraph 3(j) of the definition of "personal information" contained in the Privacy Act.

Paragraph 3(j) removes from the definition of "personal Information":

"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 …"

The Information Commissioner communicated his views to the Commissioner of the CRA. As a result, CRA disclosed the time sheets to the requester, withholding employee identification numbers and descriptions of types of leave taken. The Information Commissioner considered the matter to be resolved.

Lessons Learned

Government employees have less privacy protection under the Access to Information Act and Privacy Act than do other individuals. Information about an identifiable government employee, which relates to the employee’s position or functions, may not be kept secret in order to protect employee privacy. On the other hand, some evaluative information about the manner in which government employees perform their duties will receive privacy protection.

No access to information issue has had more judicial guidance than has this issue of how much privacy protection can be accorded to information about public officials. The Supreme Court of Canada has decided two cases on this issue. In addition to the Dagg case, cited above, the reader is referred to Canada (Information Commissioner) v. Canada (RCMP Commissioner), [2003] 1 S.C.R. 66.

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