Van Den Bergh v. Canada (National Research Council), 2003 FC 1116

June 2014

Summary: The National Research Council (“NRC”) was ordered to disclose the names of employees who received performance bonuses in the year 2000 because the bonuses were a “discretionary benefit of a financial nature” and therefore excluded from the definition of “personal information” in the Privacy Act.

Facts: The NRC instituted performance bonuses for its employees in 1999. It created general criteria for granting the bonuses, but left it up to particular branches to alter or supplement the criteria: for example, the general criteria stated that employees became eligible for bonuses with a “superior” or “outstanding” performance review, but some sectors of the NRC awarded bonuses for “fully satisfactory” performance or even without any performance review rating so long as they met other criteria. An individual at one of the unions representing NRC employees requested the names of the recipients of the bonuses under the Access to Information Act in order to assess how bonuses varied across different sectors of the NRC. The NRC refused, on the grounds that the names were personal information that should not be disclosed. The Information Commissioner agreed with the NRC, but the individual who requested the information applied to Federal Court.

Result: The Federal Court ordered the NRC to disclose the names.

Decision: The Federal Court focused on paragraph 3(l) of the Privacy Act, which states that information relating to “any discretionary benefit of a financial nature… including the name of the individual and the exact nature of the benefit” is not included in the definition “personal information” for the purpose of the Access to Information Act. The Court concluded that the entire bonus program was discretionary: NRC had no obligation to implement it, the factors varied from sector-to-sector, and the actual assessment of each employee was a discretionary decision by his or her manager. Therefore, the information fell within the exclusion from “personal information.”

The Court rejected an argument by the NRC that another exception relating specifically to public servants (s. 3(j), permitting disclosure of the titles, addresses, telephone numbers, job classifications and salary ranges of public servants) contained the only information that could be disclosed. The Court rejected that argument. The court also mentioned specifically that it was influenced by the fact that disclosing the names of the bonus recipients would not disclose their actual performance evaluations (as the required performance level for a bonus varied considerably across the NRC).

Finally, the Court also commented on the NRC’s submission that it had not received adequately clear consent from employees to release any names. The Court noticed that the consent forms stated things like “I wish to see my name appear on any list of bonus recipients” or “I agree to have my name made public” – the Court did not see any ambiguity in those consents. The Court also criticized the NRC for not fully turning its mind to the public interest override in the Privacy Act. The NRC stated baldly that “the public interest override is not justified in this case”: according to the Federal Court, this mere assertion falls short of the required justification of such a decision.