Annual Report: 2006-2007

CHAPTER IV:

Case 3 – Offender Privacy v. Public Interest Disclosure

Background

The representative of a non profit advocacy group supporting victims of crime asked Correctional Service Canada (CSC) for access to the report of a Board of Investigation into the release and supervision of an offender who was charged with second-degree murder while on statutory release status. Most of the report was withheld, pursuant to subsection 19(1) of the Act, in order to protect the privacy of the offender.

The requester was surprised by this response as, in the past, Board of Investigation reports into crimes allegedly committed by offenders while on release status had been disclosed on the basis that the public interest in disclosure clearly outweighed any invasion of privacy that could result. The requester complained to the Information Commissioner and asked him to determine why, in this case, the offender’s privacy was given primacy over the public interest in disclosure.

Legal Issue

Did CSC properly exercise its discretion to disclose personal information in the public interest, pursuant to the related provisions of paragraph 19(2)(c) of the Act and subparagraph 8(2)(m)(i) of the Privacy Act?

Paragraph 19(2)(c) of the Act authorizes government institutions to disclose personal information if disclosure is permitted by section 8 of the Privacy Act. Subparagraph 8(2)(m)(i) of the Privacy Act provides that personal information may be disclosed:

"(m) for any purpose where, in the opinion of the head of the institution

(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure…"

The Commissioner’s investigation determined that CSC had, indeed, disclosed Board of Investigation reports in the past, pursuant to subparagraph 8(2)(m)(i) of the Privacy Act. The investigation also determined that, at some point in the Fall of 2002, the then Privacy Commissioner of Canada had written to the Commissioner of CSC, expressing a concern about the disclosure of Board of Investigation reports in the public interest.

In response to the Privacy Commissioner’s concerns, CSC revised and restricted its disclosure policy with respect to Board of Investigation reports. CSC adopted a policy, in late November 2002, to authorize disclosure of such reports in the public interest, only if the requester is a victim of crime, an organization acting with the written consent of a victim of crime, or a family member of a victim of crime.

The Information Commissioner was mindful of the fact that the discretion to disclose offender personal information clearly resides with the head of CSC. However, he was concerned that the strict policy governing the application of subparagraph 8(2)(m)(i) of the Privacy Act might constitute an improper fettering of the head’s discretion.

The Information Commissioner asked CSC to review the facts of this case carefully to ensure that the discretion to disclose in the public interest was exercised on a case-specific basis, taking into account all relevant factors, both pro- and con-disclosure. In other words, the Information Commissioner needed to be satisfied that the discretion had been properly exercised and that the decision had not been dictated by the policy.

CSC agreed to reconsider the matter. Some additional portions of the Board of Investigation report, containing details which had already been reported in the media, were disclosed. Portions remained withheld, however, to protect the offender’s privacy. Secrecy was not maintained solely on the basis of the policy but also because of a specific circumstance of this case - the offender had been apprehended and incarcerated and, hence, no longer posed a danger to the community.

The Commissioner was satisfied that the discretion to disclose (or not disclose) in the public interest, had been properly exercised and found the complaint to be resolved.

Lessons Learned

Institutions have an obligation, before withholding personal information under subsection 19(1) of the Act, to consider the exceptions to the exemption set out in subsection 19(2). One of these exceptions, paragraph 19(2)(c), requires the proper exercise of a discretion, being a decision as to whether or not the public interest in disclosure clearly outweighs any resulting invasion of privacy.

Parliament intended that this provision not become a routine basis for privacy invasion - that is why the phrase "clearly outweighs" appears in subparagraph 8(2)(m)(i) of the Privacy Act. Further evidence of Parliament’s intention is that the Privacy Commissioner must be notified of any disclosures of personal information in the public interest.

Yet, in their efforts not to overuse the public interest override, institutions must take care not to refuse to exercise the discretion Parliament gave to them, or to restrict, or fetter their ability to properly exercise the discretion through the adoption of rigid or narrow policies limiting the situations in which the public interest override will be invoked. Rather, the presence of the discretionary authority, as a matter of law, requires government institutions to exercise the discretion in good faith, on a case-by-case basis, taking into account the specific information at issue and all relevant factors weighing both for and against disclosure.

Case 4 - Who Worked During the Strike?

Background

An individual asked the Canada Revenue Agency (CRA) for the weekly time (attendance) sheets for the employees of CRA’s Charities and Registered Pension Plans Directorates, covering a period during which members of the Public Service Alliance of Canada were on strike. The request gave senior officials of CRA the jitters; two assistant CRA Commissioners decided that the request should be denied, but only after some eleven weeks of internal rumination.

The requester complained to the Information Commissioner, arguing that information about employee attendance is work-related and does not qualify for privacy protection.

Legal Issue

Is information about employee attendance at work during strike periods "personal information" which qualifies for exemption from the right of access under subsection 19(1) of the Act?

The investigation confirmed that CRA had received requests in the past for access to employee time sheets and had always disclosed them, with the exception of employee identification numbers and descriptions of types of leave taken. CRA explained its deviation in this case from usual practice in order to protect the privacy of union employee choice to work during strikes. CRA took the view that reporting for work may be viewed as an expression of the employee’s views regarding the need for solidarity between employees during a strike.

The Information Commissioner was guided by the decision of the Supreme Court of Canada in Dagg v. Canada (Minister of Finance), 2 S.C.R. 403, in which it was decided that information about an employee’s presence in the workplace is not "personal information" for the purposes of subsection 19(1) of the Act, by virtue of paragraph 3(j) of the definition of "personal information" contained in the Privacy Act.

Paragraph 3(j) removes from the definition of "personal Information":

"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 including …"

The Information Commissioner communicated his views to the Commissioner of the CRA. As a result, CRA disclosed the time sheets to the requester, withholding employee identification numbers and descriptions of types of leave taken. The Information Commissioner considered the matter to be resolved.

Lessons Learned

Government employees have less privacy protection under the Access to Information Act and Privacy Act than do other individuals. Information about an identifiable government employee, which relates to the employee’s position or functions, may not be kept secret in order to protect employee privacy. On the other hand, some evaluative information about the manner in which government employees perform their duties will receive privacy protection.

No access to information issue has had more judicial guidance than has this issue of how much privacy protection can be accorded to information about public officials. The Supreme Court of Canada has decided two cases on this issue. In addition to the Dagg case, cited above, the reader is referred to Canada (Information Commissioner) v. Canada (RCMP Commissioner), [2003] 1 S.C.R. 66.