Administrative law – Freedom of information and protection of privacy – Disclosure – Exceptions – Federal employees – Personal information – Definition – Judicial review – Standard of review – Correctness
Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police),  S.C.J. No. 7, Supreme Court of Canada, March 6, 2003, McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps JJ.
An individual requested certain information regarding four RCMP members. The information was sought in connection with litigation against the officers. The RCMP Commissioner refused to disclose the information on the grounds that the records constituted “personal information”, as defined by s.3 of the Privacy Act, R.S.C. 1985, c.P-21, and therefore were exempt from disclosure pursuant to s.19(1) of the Access to Information Act, R.S.C. 1985, c.A-1. The individual complained to the Information Commissioner who found that the certain job-related information contained in the records did not constitute “personal information” and therefore recommended that the RCMP disclose (a) the list of historical postings, their status and date, (b) the list of ranks and the dates they achieved those ranks, (c) their years of service, and (d) their anniversary date of service (the “Recommended Information for Disclosure”). The RCMP Commissioner indicated it would not follow the Information Commissioner’s recommendation. The Information Commissioner applied to the Federal Court (Trial Division) for a review of the RCMP Commissioner’s decision to refuse disclosure and an order directing the RCMP to disclose the records or portions thereof which did not qualify for exemption from disclosure under s.19(1) of the Access to Information Act. The Trial Division held that only information related to a public servant’s current position or a former public servant’s last position needed to be released. The Federal Court of Appeal upheld that decision. A further appeal to the Supreme Court of Canada was sought.
The appeal was allowed, the judgments of the lower Courts were set aside, and an Order directing the RCMP to disclose all the Recommended Information for Disclosure was made. Applying the functional and pragmatic approach, deference to the RCMP Commissioner would be unjustified and courts ought to review his decision on a standard of correctness.
The Privacy Act and Access to Information Act have to be read jointly and neither takes precedence over the other. The Access to Information Act provides a general right to access, subject to certain exceptions, such as that in s.19(1), which prohibits the disclosure of a record that contains personal information “as defined in section 3 of the Privacy Act”. In turn, the Privacy Act protects the privacy of individuals with respect to personal information about themselves held by government institutions. The requested information regarding the RCMP officers is “information about an identifiable individual” and therefore “personal information” within s.3 of the Privacy Act. The requested information also related to “employment history” (which was protected as an example of “personal information” in s.3(b)). However, even though the requested information was prima facie “personal information”, it fell under the exemption provided in s.3(j) of the Privacy Act where it is stated that “personal information” does not include “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”. Section 3(j) is retroactive in nature and can be extended to past postings of RCMP members. The list of examples provided in s.3(j) is not exhaustive, and does not limit the application of the introductory paragraph to the current position held by an employee or the last position occupied by a now retired employee. However, s.3(j) does have a specified scope, as the information must be related to the position or functions held by a federal employee. This will exclude information relating to, for example, competence and characteristics of the employee. Section 3(j) applies when the information – which is always linked to an individual – is directly related to the general characteristics associated with the position or functions held by an employee, without the objective or subjective nature of that information being determinative.
The Recommended Information for Disclosure was information that related to the general characteristics associated with the position or functions of an RCMP member. It did not reveal anything about the RCMP officers’ competence or divulge any personal opinion given outside the course of employment – rather, it provided information relevant to understanding the functions they perform.
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