Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53

June 2014

Summary: This case concerns the ability of a government institution to refuse to provide an individual access to his or her personal information because of the impact of that disclosure on an investigation. The Supreme Court of Canada concluded that a head of a government institution could refuse access because of the impact that disclosure would have on current or future investigations, but the head must prove that there is a reasonable expectation that disclosure would harm those investigations.

Facts: Mr. Lavigne, a federal public servant, filed complaints with the Commissioner of Official Languages alleging that his linguistic rights under the Official Languages Act had been violated. The Office of the Commissioner of Official Languages (“OCOL”) investigated his complaints. During their investigation, the investigators working for OCOL encountered problems because certain public servants were reluctant to give information, fearing reprisals by the complainant. OCOL investigators gave assurances that the interviews would remain confidential.

Once the investigation had been completed, Mr. Lavigne requested various records under the Privacy Act containing his personal information. OCOL refused to disclose the interview notes of the investigators under s. 22(1)(b) of the Privacy Act on the grounds that the disclosure could reasonably be expected to be injurious to lawful investigations by OCOL. The Privacy Commissioner agreed that the personal information contained in the testimony of witnesses had been properly exempted from disclosure. The Federal Court disagreed with the Commissioner’s conclusion in part and ordered disclosure of the personal information requested. The Court of Appeal upheld the Federal Court’s decision.

Result: The Supreme Court of Canada concluded that OCOL did not meet its burden to prove that disclosing the interview notes would harm future investigations, and therefore ordered that the interview notes be disclosed.

Decision: The Supreme Court of Canada spent a considerable part of its decision explaining the framework of both the Privacy Act and the Official Languages Act. The principles that emerge from the Court’s review of the Privacy Act include:

• The Privacy Act is quasi-constitutional legislation and therefore should be interpreted purposively.
• The Privacy Commissioner has an important role under the Privacy Act. The Privacy Commissioner has broad powers to investigate complaints, access to all information held by a government institution, and the right to summon witnesses to give oral evidence under oath. The Privacy Commissioner has an ombudsperson’s role: he is independent of the government, examines complaints impartially, may compel cooperation, and does not disclose information he receives.
• The two purposes of the Privacy Act are to protect personal information held by government institutions and to provide individuals with a right of access to personal information about themselves.
• “The Privacy Act is a reminder of the extent to which the protection of privacy is necessary to the preservation of a free and democratic society.” (para. 25)
• Given that one of the objectives of the Privacy Act is to provide individuals with access to personal information about themselves, courts have “generally interpreted the exceptions to the right of access narrowly”. (para. 30)

The first issue addressed by the Supreme Court of Canada was whether the exception in s. 22(1)(b) of the Privacy Act only applied to current investigations, or whether the impact of disclosure on future investigations was relevant. The Court accepted the second view: neither the definition of the term “investigation” nor the other provisions of s. 22 of the Privacy Act shows that Parliament intended the exception in ss. 22(1)(b) to apply only to ongoing investigations. The impact of disclosing personal information on future investigations – for example, on the willingness of witnesses to participate in those future investigations – is relevant.

The second issue was whether the non-disclosure was justified in this case. The Supreme Court of Canada concluded that there must be a clear and direct connection between the disclosure of specific information and the harm to investigations that is alleged. The government institution cannot refuse disclosure in order to “facilitate the work of the body in question: there must be professional experience that justifies non-disclosure.” (para. 58) The Court also recognized that “a refusal to ensure confidentiality may sometimes create difficulties for the investigators, but may also promote frankness and protect the integrity of the investigation process.” (para 59) Different situations may call for different results.

In this case, OCOL did not prove that disclosing the interview notes could reasonably be expected to be injurious to the conduct of future investigations. This proof must relate to the specific circumstances of this case. OCOL’s evidence was that, generally, if investigations were not confidential this could compromise their conduct. This evidence was not good enough: to justify non-disclosure, OCOL would have had to prove that something about the specific circumstances of this investigation led it to reasonably conclude that disclosure could be expected to be injurious to future investigations.

The Supreme Court of Canada also pointed out that even if a witness gives permission to disclose interview notes, a government institution still does not have to grant access to that personal information. The focus of s. 22(1)(b) of the Privacy Act is on the investigation, not the consent of third parties.

Finally, Mr. Lavigne argued that the Privacy Act required disclosure of information other than personal information. The Supreme Court of Canada rejected that argument: the Privacy Act only requires disclosure of a requester’s own personal information.