Annual Report: 2003-2004

9. Privacy For Public Employees?

Background

In November 2002, an individual filed an access request with the Solicitor General of Canada (SGC) for a list of names of persons who had accepted an offer from SGC of term or casual employment in the National Capital Region. SGC refused to disclose the names on the basis that the requested information is "personal information" and subject to a mandatory exemption.

The requestor made similar requests to 30 other government institutions. Some withheld the names, others gave the names but refused to disclose whether the individual was a "term" or "casual". These responses were based on advice provided to the departments by the Treasury Board Secretariat.

These refusals prompted complaints to the Information Commissioner.

Legal Issue

Is the name and federal government employment status of an individual "personal information" for the purposes of the subsection 19(1) exemption in the Access to Information Act? That was the issue on which the outcome of this complaint turned.

However, the answer to this question depends on a related question: Is the name and status (i.e. term or casual) of a federal employee covered by paragraph 3(j) of the Privacy Act? If the answer to this latter question is "yes", then the answer to the first question must be "no". The reason for this relationship between paragraph 3(j) of the Privacy Act and subsection 19(1) of the Access to Information Act is that the former provision describes information which may not be withheld under the latter provision.

Paragraph 3(j) of the Privacy Act provides as follows: "For the purposes of … section 19 of the Access to Information Act (personal information) does not include:

(j) 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…"

The requester argued that "terms" and "casuals" are employees and their status has a relation to their functions. The government agreed that these individuals are employees, but argued that their employment status has nothing to do with their positions or functions and, hence, must be protected as "personal information".

The commissioner’s deliberations were made much easier when, in March 2003 (two months after the complaint was made), the Supreme Court of Canada issued its judgment in the case of Canada (Information Commissioner) v. Canada (Commissioner of the R.C.M.P.), [2003] SCC No. 8. That judgment deals with a refusal by the RCMP to disclose information about, inter alia, the employment status of certain RCMP officers. The Supreme Court found that such types of information "… relate to the general characteristics associated with the position or functions of an RCMP member. They do not reveal anything about their competence or divulge any personal opinion given outside the course of employment. Rather, they provide information relevant to understanding the functions they perform…" (paragraph 39)

In addition to taking into account this decision of the Supreme Court, the Information Commissioner also took note of the fact that the Privacy Commissioner had concluded that the names and status of term and casual employees fall within paragraph 3(j) of the Privacy Act and, hence, do not qualify for exemption under subsection 19(1) of the Access to Information Act.

Finally, during the investigation, the Treasury Board Secretariat informed the Information Commissioner as follows: "While we continue to believe that the advice we received from Justice was legally sound, we will no longer be recommending that government institutions continue to exempt the names of government term and casual employees as personal information."

The commissioner concluded that the withheld information did not qualify for exemption from the right of access under subsection 19(1) of the Act and recommended that it be disclosed. SGC released the information.

Lessons Learned

By means of paragraph 3(j) of the Privacy Act, Parliament expressed its intent to narrow privacy protection for public employees so that the purpose of the Access Act--accountability of elected officials and public servants--would not be undermined. This goal has been reinforced by the Supreme Court of Canada in the RCMP decision. The court has made it clear that paragraph 3(j) of the Privacy Act is intended "… to ensure that the state and its agents are held accountable to the general public…" (paragraph 29) Thus, government institutions must be very cautious before asserting privacy protection for government officials or employees to ensure that secrecy does not undermine the public’s right to hold government and its employees to account through the right of access.