Digests

Van Den Bergh v. Canada (National Research Council)

T-121-02

2003 FC 1116, O'Reilly J.

29/9/03

13 pp.

In 1999, National Research Council (NRC) began new program for awarding its hardest-working most talented employees with performance bonuses--Applicant officer of union representing administrative, secretarial, technical staff at NRC--In 2000, applicant asked NRC, on behalf of union, to provide names of all employees who had been awarded performance bonuses in 2000--Applicant relied on Access to Information Act (AI Act)--President of NRC refused applicant's request on basis asking for personal information protected under Privacy Act (P Act)--Applicant complained to Information Commissioner (IC), invoking exception in P Act, s. 3(l) (information about discretionary financial benefits) --NRC then disclosed names of some employees--However, in letter dated December 12, 2001, IC agreed with NRC that not obliged to release names of persons who had received bonuses for individual efforts because that would, in effect, disclose their personal performance ratings--Applicant applied to Court for judicial review of NRC's refusal and sought order against NRC to provide those names--First, can names of persons who received performance bonuses be disclosed on basis of exception in P Act?--AI Act and P Act two sides of single coin--Together they set out rules governing disclosure and protection of information held by federal government--AI Act, s. 19 allows individuals access to government records, but prohibits disclosure of "personal information", defined generally in P Act, s. 3 as "information about an identifiable individual that is recorded in any form" --However, information sought here not very specific--One would not know rating particular person had achieved--In any case, even general information applicant requested from NRC coming within broad definition of "personal information" in P Act--However, P Act goes on to list number of exceptions to definition, including "any discretionary benefit of financial nature. . . including name of individual and exact nature of benefit"--Clearly, employees who received bonuses from NRC obtained financial benefit--Only question whether benefit "discretionary"--Entire bonus program discretionary --However, further issue to consider--P Act, s. 3(j) contains another exception relating to information about public servants--Provision permits disclosure of number of details about public employees, including their job titles, addresses, telephone numbers, job classifications and salary ranges-- Supreme Court has held personal information about public employees not specifically mentioned in s. 3(j), including performance appraisals, cannot be disclosed: Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), [2003] 1 S.C.R. 66-- Similarly, because s. 3(j) refers specifically to "salary range" of public employee, Muldoon J. held parallel exception for discretionary financial benefits in s. 3(l) does not permit disclosure of person's specific salary or daily fee: Rubin v. Canada (Clerk of the Privy Council) (1993), 48 C.P.R. (3d) 337 (F.C.T.D.)--Still, neither case suggests information applicant seeks cannot be disclosed--According to RCMP case, personal performance evaluations of public employees should remain confidential, even though other details about their employment history can be disclosed--However, NRC would not be revealing performance evaluations of its employees simply by naming those who received bonuses-- Further, no tension here between s. 3(j) and s. 3(l), as there was in Rubin case--Here, applicant asks NRC to disclose names of employees who received bonus, not their salary, nor even amount of bonus--No tension between two exceptions at issue here, and no basis for concluding s. 3(j) cannot apply to public employees--Accordingly, information applicant seeks not "personal information" according to P Act --Therefore, NRC should have granted request initially-- Identity of persons who received performance bonuses from NRC not "personal information" because information relating to discretionary financial benefit under P Act, s. 3(l)--As such, applicant entitled to have access to information-- Judicial review allowed--NRC ordered to provide applicant with names of employees who received performance bonuses in year 2000--Access to Information Act, R.S.C., 1985, c. A-1, s. 19--Privacy Act, R.S.C., 1985, c. P-21, s. 3 "personal information".