Annual Report: 2002-2003

A. JUDICIAL GUIDANCE

The Access to Information Act and the Privacy Act are companion pieces of legislation. They were passed by Parliament at the same time, they make reference to each other in their provisions and the offices of the Information Commissioner and Privacy Commissioner constitute a single department of government. Both laws contain provisions requiring that information about identifiable individuals, known as "personal information", be kept confidential and both contain provisions permitting disclosure of personal information.

It is rare that the public's right to know comes into real conflict with individual privacy rights. Occasionally, the conflict surfaces with respect to information about accused persons, inmates seeking parole, or escaped offenders. In such cases there may be public safety and accountability considerations outweighing the right to privacy. Routinely, however, conflicts between openness and privacy arise with respect to information about public officials.

The definition of what constitutes "personal information" is contained in the Privacy Act and, in that definition, Parliament sought to make it clear that certain information about identifiable individuals who are public officials does not qualify for privacy protection. Paragraph 3(j) of the Privacy Act states that the privacy exemption in the Access to Information Act (i.e. section 19) may not be invoked to withhold:

"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."

Governments have, over the years, interpreted this provision narrowly, in an effort to give public officials as much privacy as possible. Members of the public have objected to the resulting interference with the value of accountability through transparency. Finding the right balance between the privacy of public officials and the obligation on government to be accountable to the public has been so difficult that the issue has come before the Supreme Court of Canada twice in the short life of these two Acts, most recently in this reporting year.

In both cases, the Supreme Court of Canada ordered the government to disclose the information about public officials which had been withheld on privacy grounds. In the first case, (Dagg v. Canada (Minister of Finance)), the information at issue was the names appearing on the Finance Department's log of employees entering the headquarters outside normal working hours. In the second case, decided in this reporting year, Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), the information at issue was a list of previous postings for several RCMP officers. Here are the details of this year's Supreme Court decision.