Annual Report: 2002-2003

A. JUDICIAL GUIDANCE

2) The Zone of Privacy for Public Officials

This story begins with an encounter between a citizen and five RCMP officers. The citizen felt aggrieved and asked the RCMP whether or not there had been public complaints filed against these officers. The RCMP responded that any such complaints, if they existed, would be filed in the detachment where the officers serve or served. However, the force refused to disclose to the citizen a list of the posting of these officers in order to protect their privacy. The citizen complained to the Information Commissioner.

During the course of the Information Commissioner's investigation, the Commissioner of the RCMP decided that he would disclose the current postings of four officers and the last posting of one of the officers who had retired. Anything more would remain secret. The Information Commissioner concluded that the withheld information relates to the positions or functions of the RCMP officers and, hence, could not be withheld on privacy grounds.

The dispute went, first, to the Trial Division of the Federal Court. The Commissioner of the RCMP argued that paragraph 3(j) of the Privacy Act should be interpreted narrowly. In his view, only information relating to the "current" position or functions of a public official should escape privacy protection. Justice Cullen agreed. He held that, if section 3(j) were given a retrospective application: "there would be little left to contemplate in private and little meaning to the protection of employment history". (paragraph 24)

The Information Commissioner appealed to the Appeal Division of the Federal Court. Justice Létourneau, for the court, disagreed with the Trial Judge's view that section 3(j) could not have retrospective application. However, he was concerned about disclosing all of the past postings. Justice Létourneau, thus, fashioned a judicial compromise. He concluded:

". . . a request about a named individual's position, especially in respect of the past positions held, has to be specific as to time, scope and place. It cannot be a 'fishing expedition' about all or numerous positions occupied by an individual--over the span of his [or her] employment". Consequently, Justice Létourneau, concluded that the access request was for employment histories and not for information about a current or specific past position and, hence, was properly denied.

The Information Commissioner then requested, and was granted, leave to appeal to the Supreme Court of Canada.

The unanimous decision of the Supreme Court of Canada was written by Justice Gonthier who disagreed with the Trial Court's effort to give section 3(j) of the Privacy Act a narrow interpretation by limiting its application to current positions. He expressed the view that such a narrow interpretation failed to take account of the obligation in a democracy for public officials to be accountable to the public. In the words of Justice Gonthier:

"The purpose of section 3(j) is to ensure that the state and its agents are held accountable to the general public. Given the lack of any indication that Parliament intended to incorporate such a limitation into the legislation, the fact that a public servant has been promoted or has retired should not affect the extent to which she or he is held accountable for past conduct." (paragraph 29)

Similarly, the Supreme Court was of the view that the compromise fashioned by the Court of Appeal was "unnecessarily restrictive and without sufficient legal foundation". (paragraph 32) Under the compromise fashioned by the Court of Appeal, too much subjective judgement would be required in order to answer access requests for information about public officials. For example, if the government felt the request was a "fishing expedition" about an official's employment history, the government could refuse disclosure. The Supreme Court rejected this approach saying:

"The Court of Appeal's approach fails to recognize that it is the nature of the information itself that is relevant--not the purpose or nature of the request." (paragraph 32)

Justice Gonthier again emphasized the accountability purpose for restricting the zone of privacy for public officials, and he emphasized that it is not the proper role of government to decide which requests do or do not serve an accountability purpose. He said:

". . . it is not open to the RCMP Commissioner to refuse disclosure on the grounds that disclosing the information, in this instance, will not promote accountability; the Access Act makes this information equally available to each member of the public because it is thought that the availability of such information, as a general matter, is necessary to ensure the accountability of the state and to promote the capacity of the citizenry to participate in decision-making processes." (paragraph 32)

Being mindful that this issue of section 3(j) of the Privacy Act had been considered once before by the Supreme Court before in Dagg, Justice Gonthier took pains to offer specific guidance as to what types of information "relate to the position or functions" and what types do not. First, he rejected the test suggested by the Information Commissioner which proposed that objective and factual information relating to positions or functions be disclosed while subjective and evaluative information relating to positions or functions should be protected. Justice Gonthier made it clear that any information "that relates to" the positions or functions of a public official should be released. Later, Justice Gonthier said that information falls within section 3(j) if it would be "relevant to understanding the functions they perform" or "shed light on the general attributes of the positions and functions. . ." (paragraph 39)

By way of example, Justice Gonthier quoted from Justice LaForest's reasons in Dagg as follows:

"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. It will comprise the terms and conditions associated with a particular position, including such information as qualifications, duties, responsibilities, hours of work and salary range."

By contrast, Justice Gonthier referred to the decision of Justice Jerome in Information Commissioner v. Solicitor General [1988] 3 F.C. S51 (T.D.) as offering examples of information about public officials which does not fall within section 3(j) of the Privacy Act, as follows:

". . .certain opinions expressed about the training, personality, experience or competence of individual employees. . . Such information is not a direct function of the individual's position--rather, it concerns the competence and characteristics of the employee." (paragraph 38, RCMP)

Applying these principles, the Supreme Court ordered the Commissioner of the RCMP to disclose the list of past postings of the five RCMP officers.