Dagg v. Canada (Minister of Finance) [1997] 2 S.C.R. 403: Access to information -- Privacy -- Personal information -- Request made for sign-in logs of government department -- Personal identifying features deleted from information -- Whether information should be disclosed -- Whether part of information can be withheld because "personal information"

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Access to information -- Privacy -- Personal information -- Request made for sign-in logs of government department -- Personal identifying features deleted from information -- Whether information should be disclosed -- Whether part of information can be withheld because "personal information" -- Access to Information Act, R.S.C., 1985, c. A-1, ss. 2, 4, 19(1), (2), 21(1)(b), 25, 31, 41, 48, 49, 54 -- Privacy Act, R.S.C., 1985, c. P-21, ss. 2, 3(i), (j), 8(2)(m).

The appellant filed a request with the Department of Finance for copies of logs with the names, identification numbers and signatures of employees entering and leaving the workplace on weekends. These logs were kept by security personnel for safety and security reasons but not for the purpose of verifying overtime claims. The appellant intended to present this information to the union anticipating that the union would find it helpful in the collective bargaining process and that the union would as a consequence be disposed to retain his services. The respondent disclosed the relevant logs but deleted the employees' names, identification numbers and signatures on the ground that this information constituted personal information and was thus exempted from disclosure. The appellant unsuccessfully sought a review by the Minister of this decision and filed a complaint with the Information Commissioner, arguing that deleted information should be disclosed by virtue of exceptions related to personal information in the Privacy Act. The Federal Court, Trial Division, on a review of the Minister's decision, found the information not to be personal but this decision was reversed on appeal. At issue here is whether the information in the logs constitutes "personal information" within the meaning of s. 3 of the Privacy Act and whether the Minister failed to exercise his discretion properly in refusing to disclose the requested information pursuant to s. 19(2)(c) of the Access to Information Act and s. 8(2)(m)(i) of the Privacy Act.

Held (La Forest, L'Heureux-Dubé, Gonthier and Major JJ. dissenting): The appeal should be allowed.

Per Lamer C.J. and Sopinka, Cory, McLachlin and Iacobucci JJ.: Agreement was expressed with La Forest J.'s approach to interpreting the Access to Information Act and the Privacy Act, particularly that they must be interpreted together. La Forest J.'s general approach to the interpretation of s. 3 "personal information" (j) of the Privacy Act (hereinafter s. 3(j)) was also agreed with.

The number of hours spent at the workplace is information that is "related to" the position or function of the individual in that it permits a general assessment to be made of the amount of work required for a particular employee's position or function. For the same reason, the requested information is related to the "responsibilities of the position held by the individual" and falls under the specific exception set out at s. 3(j)(iii) of the Privacy Act. The information provides a general indication of the extent of the responsibilities inherent in the position. There is neither a subjective aspect nor an element of evaluation contained in a record of an individual's presence at the workplace beyond normal working hours. Rather, that record discloses information generic to the position itself.

Per La Forest, L'Heureux-Dubé, Gonthier and Major JJ. (dissenting): The Access to Information Act and Privacy Act have equal status and must be given equal effect. The courts must have regard to the purposes of both in considering whether a government record constitutes "personal information". Both recognize that, in so far as it is encompassed by the definition of "personal information" in s. 3 of the Privacy Act, privacy is paramount over access.

The overarching purpose of access to information legislation is to facilitate democracy by helping to ensure that citizens have the information required to participate meaningfully in the democratic process and that politicians and bureaucrats remain accountable to the citizenry. While the Access to Information Act recognizes a broad right of access to any record under the control of the government, the overarching purposes of the Act must be considered in determining whether an exemption to that general right should be granted. The purpose of the Privacy Act is to protect the privacy of individuals with respect to personal information about themselves held by a government institution and to provide individuals with a right of access to that information.

The definition of "personal information" in s. 3 of the Privacy Act -- "information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing" -- indicates that the general opening words are intended to be the primary source of interpretation. The subsequent enumeration merely identifies examples of the type of subject matter encompassed by the general definition. The language is deliberately broad and entirely consistent with the great pains that have been taken to safeguard individual liberty. Its intent is to capture any information about a specific person, subject only to specific exceptions.

In the present case, the information requested by the appellant revealed the times during which employees of the Department of Finance attended their workplace on weekends over a period of one month. It is patently apparent that this constitutes "information about an identifiable individual" within the meaning of s. 3. It thus prima facie constitutes "personal information" under s. 3 of the Privacy Act.

Although it is not strictly necessary to so find, it is relevant that employees of the respondent would have a reasonable expectation that the information in the sign-in logs would not be revealed to the general public. A reasonable person would not expect strangers to have access to detailed, systematic knowledge of an individual's location during non-working hours, even if that location is his or her workplace.

Once it is determined that a record falls within the opening words of the definition of "personal information" in s. 3 of the Privacy Act, it is not necessary to consider whether it is also encompassed by one of the specific, non-exhaustive examples set out in paras. (a) to (i). It should be noted, nevertheless, that the records requested by the appellant in this case clearly fall within para. (i), which states that "personal information" includes "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". In this case, the appellant did not request only the names of the employees. He also wanted access to the times of their arrivals and departures. The time entries thus constitute "other personal information" within the meaning of the first part of para. (i).

It is also clear that disclosure of the names themselves, i.e., without the time entries or signatures, would disclose information about the individual within the meaning of the second part of para. (i). In his access request, the appellant asked for copies of the logs signed by employees on specific days. Even if the Minister disclosed only the names of the employees listed on those logs, the disclosure would reveal that certain identifiable persons attended their workplace on those days.

Section 48 of the Access to Information Act places the onus on the government to show that it is authorized to refuse to disclose a record. The Act makes no distinction between the determination as to whether a record is prima facie personal information and whether it is encompassed by one of the exceptions. 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.

The section 3 personal information provision exempts information attaching to positions but not information relating to specific individuals. Information relating to the position is thus not "personal information", even though it may incidentally reveal something about named persons. Conversely, information relating primarily to individuals themselves or to the manner in which they choose to perform the tasks assigned to them is "personal information". Generally speaking, information relating to the position, function or responsibilities of an individual will consist of the kind of information disclosed in a job description.

The information requested in the present case is not information about the nature of a particular position. While it may give the appellant a rough, overall picture of weekend work patterns, it provides no specific, accurate information about any specific employee's duties, functions or hours of work. Rather, it reveals information about the activities of a specific individual which may or may not be work-related. Even if the logs can be said to record an employee's overtime hours accurately, such information is "personal information". The specific hours worked by individual employees reveal nothing about either the nature or quantity of their work.

The names on the sign-in logs do not constitute a "document prepared by . . . individual[s] in the course of employment". First, these logs are not prepared by the employees who sign them; they are the responsibility of security officers. Second, they are not made "in the course of employment" and have nothing to do with the responsibilities of their positions.

A de novo review of the decision of the head of the institution, under s. 8(2)(m)(i) of the Privacy Act, that the public interest in disclosure clearly outweighed any invasion of privacy is not mandated by s. 2 of the Access to Information Act which provides that decisions on disclosure should be reviewed independently of government. The reviewing court, under s. 49 of that Act, is to determine whether the refusal to disclose by the head of a government institution was authorized. If the information does not fall within one of the exceptions to a general right of access, the head of the institution is not "authorized" to refuse disclosure, and the court may order that the record be released pursuant to s. 49. In making this determination, the reviewing court may substitute its opinion for that of the head of the government institution. The situation changes, however, once it is determined that the head of the institution is authorized to refuse disclosure. Section 49 of the Access to Information Act, then, only permits the court to overturn the decision of the head of the institution where that person is "not authorized" to withhold a record. Where the requested record constitutes personal information, the head of the institution is authorized to refuse and the de novo review power set out in s. 49 is exhausted.

The head of a government institution, under s. 19(2) of the Access to Information Act, has a discretion to disclose personal information in certain circumstances. A decision is not immune from judicial oversight merely because it is discretionary. Abuse of discretion may be alleged but where the discretion has been exercised in good faith, and, where required, in accordance with principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

The Minister properly examined the evidence and carefully weighed the competing policy interests. He was entitled to make the conclusion that the public interest did not outweigh the privacy interest. For this Court to overturn this decision would not only amount to a substitution of its view of the matter for his but also do considerable violence to the purpose of the legislation. The Minister's failure to give extensive, detailed reasons for his decision did not work any unfairness upon the appellant.

The head of a government institution, pursuant to s. 48 of the Access to Information Act, has the burden of establishing that he or she is "authorized to refuse" to disclose a requested record. The Minister satisfied this burden when he showed that the information in the sign-in logs constituted "personal information". Once that fact is established, the Minister's decision to refuse to disclose pursuant to s. 8(2)(m)(i) of the Privacy Act may only be reviewed on the basis that it constituted an abuse of discretion. The Minister did not have a "burden" to show that his decision was correct because that decision is not reviewable by a court on the correctness standard. The Minister weighed the conflicting interests at stake. The fact that he stated that the appellant failed to demonstrate that the public interest should override the privacy rights of the employees named in the sign-in logs was therefore irrelevant.

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