Access to Public Information, Privacy, Data Protection and Retention
Israel Courts’ Administration v. The Marker Newspaper
Closed Expands Expression
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The Supreme Court of Canada determined that an employee’s request for information regarding employee sign-in logs had to be disclosed. Michael Dagg sought information from the Department of Finance on the sign-in logs of employees on weekends in order to help the union bargaining process. The Minister of Finance disclosed the information, but deleted the employees’ names, identification numbers, and signatures because it constituted personal information that could be exempted from disclosure. The Court reasoned that the Minister was allowed to delete the employees’ names, but that the information sought by Dagg did not constitute personal information under section 3(j) of the Privacy Act and thus it had to be disclosed.
Michael Dagg (applicant) is a professional access to information consultant. He filed a request with the Department of Finance for copies of logs signed by employees entering and leaving the workplace on the weekends. The applicant sought the information to determine whether union members were working overtime on weekends without claiming compensation. The applicant intended to present the information to the union in order to help with the collective bargaining process and to increase the likelihood of retaining his services.
The Minister of Finance (respondent) disclosed the logs to the applicant, but deleted the employees’ names, identification numbers, and signatures. The respondent alleged that the information requested by the applicant constituted personal information and was exempted from disclosure in accordance with section 19(1) of the Access to Information Act.
Justice Cory delivered the opinion of the Supreme Court of Canada. He determined that the names in the sign-in logs constituted “personal information” under section 3 of the Privacy Act. However, Cory submitted that the opening words of both section 3(j) and the specific provisions of section 3(j)(iii) of the Privacy Act were sufficiently broad to encompass the information sought by the applicant. [para. 4] Specifically, he contended, “the number of hours spent at the workplace is general information ‘that relates to’ the position or function of the individual and thus falls under the opening words of section 3(j).” [para. 8]
Furthermore, Justice Cory determined that the sign-in logs provides information that allows for a “general assessment” of the amount of work required by each employee. [para. 8] He added that “[a]lthough this information may not disclose anything about the nature of the responsibilities of the position, it does provide a general indication of the extent of those responsibilities.” [para. 9] Finally, Justice Cory determined that because the information sought fell within the opening words of section 3(j) of the Privacy Act, and alternatively, within section 3(j)(iii) of the same Act, the information had to be disclosed.
On the dissenting opinion, Justice La Forest contended that the information sought by the applicant was ‘personal information’ and that under the Privacy Act it should not be disclosed. Moreover, La Forest explained that information relating to the employee’s position is not considered ‘personal information’ under the Privacy Act and it is exempted. He determined that in the present case the information sought did not comprise information regarding the position or function of a specific individual. Justice La Forest understood that it revealed information “about the activities of a specific individual which may or may not be work-related.” [paras. 94–95]
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression as it allows for the access to information request. It also establishes that both pieces of legislation (the Privacy Act and the Access to Information Act) have to be interpreted and read together. The access to information legislation facilitates democracy and the privacy legislation protects the privacy of individuals with respect to personal information about themselves held by the government.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The Court cited and made reference to sections 7, 8, 19 and 26.
The Court interpreted and referenced section 3(j) of the Act.
“In Information Commissioner, Jerome A.C.J. held that certain opinions expressed about the training, personality, experience or competence of individual employees did not fall under any of the exemptions set out at s. 3(j) of the Privacy Act. In construing these specific exceptions, it was observed that, apart from s. 3(j)(v) (the individual’s own views or opinions given in the course of employment), each of them are examples of “matters of objective fact” (pp. 557-58).”
“In Rubin, it was held that, although the salary range attaching to a position fell under s. 3(j)(iii) of the Privacy Act, the actual salary earned by the employee filling the position did not. However, unlike the information contained in the sign‑in sheets, the actual salary which a person receives does not reveal anything inherent about the position. On the contrary, it is information that relates to the individual employee.”
Case significance refers to how influential the case is and how its significance changes over time.
The present case has a precedential effect as it is the first time the Supreme Court of Canada considered an application regarding section 41 of the Access to Information, to review a refusal of access to information held by the government. It also interpreted what constitutes personal information under the Privacy Act.
Let us know if you notice errors or if the case analysis needs revision.