T-218-88
Information Commissioner of Canada (Applicant)
v.
Secretary of State for External Affairs (Respon-
dent)
INDEXED AS: CANADA (INFORMATION COMMISSIONER) v.
CANADA (SECRETARY OF STATE FOR EXTERNAL AFFAIRS)
(T.D.)
Trial Division, Dubé J.—Ottawa, November 1 and
7, 1989.
Access to information — Secretary of State for External
Affairs refusing to disclose information in "call up" forms
used by government bodies requiring temporary help services
under arrangement whereby contractors file master "standing
offer" for temporary services specified therein — When ser
vices required, "call up" form issued to contractor who sup
plies and pays employee — Application under Access to
Information Act s. 42(1)(a) to review refusal — Application
allowed — Security classification in "call up" form subject to
disclosure under Access to Information Act as not personal
information within Privacy Act s. 3 even when linked with
names of individuals who filled position — Security classifi
cation not protected information as relates to services per
formed, not to individual.
Privacy — Security classification in government "call up"
form for temporary help engaged under "standing offer" not
personal information within Privacy Act s. 3 even when linked
with names of individuals who filled position — Even if
security classification personal information, would fall under
Privacy Act s. 3(k) exclusion as relating to services performed,
not to individual.
Construction of statutes — Application to review refusal by
government department to disclose information requested
under Access to Information Act, including security classifica
tion included in "call-up" forms — Privacy Act, s. 3(k)
"personal information" — English and French versions differ
ing — Version best reflecting purpose of section, read in
context of Act and in light of scheme of legislation to be
adopted — When Access to Information Act, s. 2 and Privacy
Act, s. 3 read together, object clear: information to be provided
to public with exception of personal information relating to
individuals — Information relating to position not personal
information, whether individual working for government as
employee (s. 3(j)) or under contract (s. 3(k)) — Wording of
French text would provide more privacy to individual hired by
government through personnel agency — No reason for differ
ent treatment — Merely bad translation — Application
granted.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Access to Information Act, R.S.C., 1985, c. A-1, ss. 19,
42(1)(a), 49.
Privacy Act, R.S.C., 1985, c. P-2I, ss. 2, 3.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Compagnie Immobilière BCN Ltée, [ 1979] 1 S.C.R.
865; [ 1979] C.T.C. 71; (1979), 79 DTC 5068; sub nom.
Cie Immobilière BCN v. M.N.R., 25 N.R. 361.
AUTHORS CITED
Beaupré, Rémi Michael Construing Bilingual Legislation
in Canada, Toronto: Butterworths, 1981.
COUNSEL:
M. L. Phelan, P. J. Wilson and Paul B. Tetro
for applicant.
Wendy E. Burnham and P. Dubrule for
respondent.
SOLICITORS:
Osler, Hoskin & Harcourt, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
DuBÉ J.: This application launched under para
graph 42(1)(a) of the Access to Information Act'
by the Information Commissioner of Canada ("the
Commissioner") is for a review of the refusal by
the Secretary of State for External Affairs ("the
'R.S.C., 1985, c. A-I.
Department") to disclose certain information
requested by one Michael A. Dagg on December
1, 1986 being all "call-ups" processed by the
Department during the months of July and August
1986.
Pursuant to Mr. Dagg's request, the Depart
ment released eighty records consisting of forms
entitled "Call-up Against a Standing Offer".
Twenty-five of these records contained security
classifications required for the jobs filled by the
temporary help employees assigned to the posi
tions. The Department held that these security
classifications were exempted from disclosure pur
suant to section 19 of the Access to Information
Act as being personal information. Mr. Dagg com
plained to the Commissioner.
These call-up forms are used by government
bodies requiring temporary help services as part of
an arrangement administered by the Department
of Supply and Services whereby various persons,
corporate or otherwise, file with that Department,
on a periodic basis, a master "standing offer" for
the temporary services specified in the offer. When
a government department requires the services of a
temporary help employee, it issues a "call-up
form" to one of the offerors under the standing
offer. The temporary help employee is then
assigned to the requesting department to provide
the specified services. The employee is paid by the
personnel agency supplying the employee.
In its original response to Mr. Dagg's request,
the Department revealed, as part of the call-up
form, the individual names of the employees. The
Privacy Commissioner found that the Department
had acted in violation of the Privacy Act [R.S.C.,
1985, c. P-21] in revealing such "personal infor
mation". Having been thus chastised for releasing
the names, the Department states it was not about
to compound the error by releasing the informa
tion relating to the security level which could, by
virtue of the fact that the names had been
released, reveal personal information about those
individuals.
After having investigated the instant complaint,
the Information Commissioner recommended to
the Department that it disclose the information on
security classification, on grounds that this infor
mation was not "personal information" by virtue
of paragraph 3(k) of the Privacy Act.
The Department still refused to disclose the
security information requested. It should be noted
at this stage, however, that subsequent to this
application for review, the Department has
received consent from fifteen of the twenty-five
individuals and released the relevant security clas
sification. No consent was received from the re
maining ten individuals who did not respond or
could not be located.
There are, therefore, two issues to be resolved:
(1) Does the security classification included in the
call-ups constitute personal information within the
meaning of section 3 of the Privacy Act when
linked with the names of the individuals who filled
the position? (2) If the answer is yes, is this
information exempted for the purpose of section 19
of the Access to Information Act?
Subsection 19(1) which provides that "personal
information" shall not be disclosed reads as
follows:
19. (1) Subject to subsection (2), the head of a government
institution shall refuse to disclose any record requested under
this Act that contains personal information as defined in sec
tion 3 of the Privacy Act.
The interpretative section 3 of the Privacy Act
defines "personal information" as follows:
3....
"personal information" means information about an identifi
able individual that is recorded in any form including, with
out restricting the generality of the foregoing.
(a) information relating to the race, national or ethnic
origin, colour, religion, age or marital status of the
individual,
(b) information relating to the education or the medical,
criminal or employment history of the individual or informa
tion relating to financial transactions in which the individual
has been involved,
(c) any identifying number, symbol or other particular
assigned to the individual,
(d) the address, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except
where they are about another individual or about a proposal
for a grant, an award or a prize to be made to another
individual by a government institution or a part of a govern
ment institution specified in the regulations,
(J) correspondence sent to a government institution by the
individual that is implicitly or explicitly of a private or
confidential nature, and replies to such correspondence that
would reveal the contents of the original correspondence.
(g) the views or opinions of another individual about the
individual,
(h) the views or opinions of another individual about a
proposal for a grant, an award or a prize to be made to the
individual about a proposal for a grant, an award or a prize
to be made to the individual by an institution or a part of an
institution referred to in paragraph (e) but excluding the
name of the other individual where it appears with the views
or opinions of the other individual, and
(i) the name of the individual where it appears with other
personal information relating to the individual or where the
disclosure of the name itself would reveal information about
the individual,
but for the purposes of sections 7, 8 and 26 and section 19 of
the Access to information Act 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 including.
(i) the fact that the individual is or was an officer or
employee of the government institution,
(ii) the title, business address and telephone number of the
individual,
(iii) the classification, salary range and responsibilities of
the position held by the individual,
(iv) the name of the individual on a document prepared by
the individual in the course of employment, and
(v) the personal opinions or views of the individual given in
the course of employment.
(k) information about an individual who is or was perform
ing services under contract for a government institution that
relates to the services performed, including the terms of the
contract, the name of the individual and the opinions or views
of the individual given in the course of the performance of
those services,
(I) information relating to any discretionary benefit of a
financial nature, including the granting of a licence or
permit, conferred on an individual, including the name of the
individual and the exact nature of the benefit, and
(m) information about an individual who has been dead for
more than twenty years;
The Commissioner argues that security classifi
cation is a condition attached to the position itself
and not to the individual and, as such, it is not
personal information. It is merely a minimum
requirement and its inclusion on the call-up form
does not indicate the level of security clearance
actually held by the employee, but merely that the
employee has met the minimum clearance for that
position.
The Department agrees that the security clas
sification in question is a condition attached to the
position, but submits that it is personal informa
tion as well, since the names of the individuals
have already been revealed.
Clearly, security classification pertains to a posi
tion and not to the individual who applied for that
position or who eventually filled it. Personal infor
mation as defined in section 3 of the Privacy Act
means information relating to an individual wheth
er it be his race, colour, religion, personal record,
opinions, etc. Nowhere does security classification
fall within the heads of personal information listed
under section 3 of the Privacy Act. Even para
graph 3(c), which deals with identifying numbers,
symbols or other particulars, limits such particu
lars to the individual, not to the position held by
the individual. Thus, in my view, security classifi
cation is not information to be withheld on the
ground that it is "personal information".
If I am mistaken and security classification is
"personal information", it would, in my view, fall
under the exclusion provided by the above para
graph 3(k), on the ground that security classifica
tion is information that relates to the services
performed and not to the individual.
However, the French and English versions of
paragraph 3(k) differ in that the English version
refers to information about an individual who was
"performing services under contract", whereas the
French text refers to an individual "qui a conclu
un contrat". Obviously, the French version is nar
rower as it limits the exclusion to an individual
who has personally concluded contractual arrange
ments with the government, whereas the English
text relates to an individual who was performing
services for the government, whether it be directly
or indirectly through a personnel agency.
It is submitted by both parties, and in accord
ance with the jurisprudence, 2 that the approach to
be taken in interpreting two versions inconsistent
with each other is to adopt the version which best
reflects the purpose of the relevant section, read in
the context of the Act and in light of the scheme of
the legislation.
It is therefore appropriate at this stage to review
section 2 of the Access to Information Act which
outlines the purpose of the Act, namely to extend
the present laws of Canada to provide a right of
access to information in government records in
accordance with the principles that government
information should be available to the public and
that necessary exceptions "should be limited and
specific". The purpose of the Privacy Act is also
outlined in its section 2, which provides that the
purpose of the Act is to protect the privacy of
individuals with respect to personal information
about themselves held by government.
Reading both sections together, it is clear that
the rule is to provide information to the public and
the exception is personal information. The Privacy
Act specifically protects limited information relat
ing to the individual. Exclusions from that protec
tion are provided in paragraphs 3(j) to 3(m).
Paragraph 3(j) deals specifically with information
relating to the position of an individual "who is or
was an officer or employee" of government, while
paragraph 3(k) deals with "an individual who is or
was performing services under contract" for
government.
It appears clear to me that the object of the two
acts, read together, is that information shall be
provided to the public, except personal information
relating to individuals. Information relating to the
position is not such personal information, whether
the individual works directly for the government as
an employee under paragraph 3(j) or by way of
2 R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R.
865; [1979] C.T.C. 71; (1979), 79 DTC 5068; sub nom. Cie
Immobilière BCN v. M.N.R., 25 N.R. 361 and Rémi Michael
Beaupré, Construing Bilingual Legislation in Canada, Toronto:
Butterworths, 1981.
contract under paragraph 3(k). There is nothing in
the scheme of the Act which would provide more
privacy to the individual who is hired by the
government through a personnel agency. The
French text "qui a conclu un contrat de prestation
de services" is, in my view, merely bad translation.
Consequently, it is hereby ordered pursuant to
section 49 of the Access to Information Act that
the respondent, the Secretary of State for External
Affairs, disclose to Michael A. Dagg the security
classifications noted on the ten remaining call-up
forms where the information has not already been
disclosed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.