Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration), 2002 FCA 270

June 2014

Summary: The names of interviewees in an investigation, and their evidence about other people, are personal information about both the interviewee and the person about whom they give evidence. Therefore, in some circumstances, the interviewees’ names and evidence may be disclosed to the person about whom they gave evidence when sought under an access to personal information request.

Facts: The department of Citizenship and Immigration (“CIC”) hired a consultant to investigate the “corporate culture, values and systems” in its processing centre in Vegreville, Alberta. That consultant conducted a number of voluntary interviews in 1996. Non-managerial employees were promised that their interviews would be confidential. In July 1996, after the final report was completed, CIC relieved the Director of that centre of his duties. The Director then requested copies of all of the interview notes under the Privacy Act. In the end, CIC provided him with redacted versions of the interview notes, but refused to disclose the names of the persons interviewed and their views or opinions about the Director. The Information Commissioner agreed with that level of disclosure. The Director applied to the Federal Court, and the Federal Court concluded that the names and opinions of the non-managerial interviewees should not be disclosed.

Result: The Federal Court of Appeal ordered that the names and opinions be disclosed.

Decision: The Federal Court of Appeal characterized this case as involving two competing privacy rights: the right of the Director to access and correct his own personal information, and the right of the interviewees to prevent the release of their personal information. The same information can be “personal” to more than one individual. The Court of Appeal observed that what the Director intended to do with the information after he received it is irrelevant. The Court of Appeal also observed that the redactions in the notes provided to the Director made his right to request correction of his personal information “meaningless”, because the notes were virtually unintelligible in their redacted form. Finally, the Court of Appeal observed that the promises of confidentiality made by CIC to the interviewees cannot override the requirements of the Privacy Act.

Paragraphs 3(e) and 3(g) of the Privacy Act is clear that the personal opinions of an individual (i.e. the interviewee) are his “personal information” except when those opinions are about another individual (i.e. the Director), in which case they become the personal information of that other individual. However, the names of the interviewees themselves are also their personal information under paragraph 3(i) of the Privacy Act. The Court of Appeal had to balance these two rights by weighing the private interests of the Directors and the interviewees against the public interest in disclosure and non-disclosure respectively.

In terms of the private interest, the Director’s private interest is significant: he must be given the opportunity to know what was said, and by whom, against him in order to clear his name in the CIC’s archives. The private interest of the interviewees, on the other hand, is minimal: if they can justify their views, then they have little to fear.

In terms of the public interest, the Court of Appeal rejected the argument that disclosure might have an impact on future investigations and that promises of confidentiality should be protected. The public interest in disclosure, on the other hand, is to ensure fairness in the conduct of administrative inquiries – an important interest.

Therefore, the Court of Appeal concluded that the names and opinions of interviewees should be disclosed.