Info Source Bulletin 42A - Federal Court Decision Summaries

Standard of review

The Court noted that the review of a government institution’s decision not to disclose a requested record under both the ATIA and the Privacy Act is a two‑step process. First, the Court must consider whether the information falls within the scope of the exemption relied upon by the government institution. This determination is reviewed against a standard of correctness. If the Court determines that the government institution correctly relied on the exemption claimed, the Court must then consider if the government institution properly exercised its discretion to not disclose the record. This review is conducted against a standard of reasonableness.

The Court further noted that a decision to have a blanket policy of neither confirming nor denying the existence of a record involves the exercise of discretion and therefore such a determination is reviewable against a standard of reasonableness.

Did CSIS err in relying on sections 15 and 16 of the ATIA to exempt the requested records, if any such records did exist?

The Court confirmed that subsection 15(1) of the ATIA sets out a discretionary, injury‑based exemption regarding information which, if disclosed, could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada or the detection, prevention or suppression of subversive or hostile activities. CSIS is required to demonstrate that (1) any information sought falls within the scope of the exemption; and (2) having demonstrated the exemption is available, that it reasonably concluded that disclosure of the information, if any, could be injurious.

Paragraph 16(1)(c) of the ATIA also sets out a discretionary, injury‑based exemption for information that could reasonably be expected to be injurious to the enforcement of any law or the conduct of lawful investigations. Paragraph 16(1)(a) sets out a discretionary class‑based exemption in respect of records obtained or prepared by an investigative body. In relying on this exemption, CSIS must (1) demonstrate that the record exempted from disclosure, if any, contains information that falls within the defined class and (2) having done so, that it reasonably decided not to disclose the information.

The requested CSIS investigative records were described as consisting “predominantly of sensitive national security information of the type described in ss 15(1) and 16(1)”. This type of information has been found, albeit in the context of the Privacy Act, to fall within the description of the exemptions CSIS relied on. As a result, if the records exist, they could reasonably be expected to fall within the exemptions at subsections 15(1) and 16(1) of the ATIA. The Court also concluded that CSIS did not act unreasonably in concluding, on a hypothetical basis, that it would rely on the subsection 15(1) and 16(1) exemptions to refuse to disclose any of the requested information, if any such records did exist.

Did the institution reasonably rely on subsection 10(2) of the ATIA when neither confirming nor denying the existence of the records sought?

The Court considered the decision in Ruby v. Canada (Solicitor General), [2000] 3 F.C. 589 (F.C.A.), where the Federal Court of Appeal considered subsection 16(2) of the Privacy Act, which is parallel to subsection 10(2) of the ATIA. The Federal Court of Appeal concluded in Ruby that (i) subsection 16(2) of the Privacy Act permits a government institution to adopt a policy of neither confirming nor denying the existence of information where the information is of a specified type or nature, (ii) adopting such a policy involves the exercise of discretion, and (iii) that the discretion must be exercised reasonably. Furthermore, the CSIS practice of not confirming or denying the existence of records where the information sought relates to investigative records has been consistently held to be reasonable where information has been sought under the Privacy Act. Confirming whether such information exists or not would be contrary to the national interest, as it would alert individuals who potentially present a security risk as to whether they are the target of a CSIS investigation. The Court held that the Court of Appeal’s conclusions under the Privacy Act apply to the ATIA as well.

Although it did not alter the Court’s conclusion that CSIS’s reliance on subsection 10(2) was reasonable, the Court commented that CSIS’s reference to a PIB in the context of an ATIA request caused confusion for the requestor. On that basis, the Court did not order costs against the applicant.

The decision is available on the Federal Court Decisions website at VB v. Canada (Attorney General), 2018 FC 394.

What is the appropriate standard of review?

The Federal Court of Appeal held that the appropriate standard of review was reasonableness, as set out in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36.

Are the names and titles of Husky’s employees, in the context of the requested records, “personal information” under subsection 19(1) of the ATIA?

While one of the judges (Judge de Montigny) set out reasons as to why the information at issue was not personal information, the two other judges (Judges Gauthier and Woods) did not think that such a determination was necessary to resolve the appeal.

Judge Gauthier (Judge Woods concurring) cautioned against venturing into matters not strictly necessary to decide the appeal, including determining if the information at issue was personal information because each case should be dealt with on a case‑by‑case basis without attempting to define a general approach other than that set out in the relevant legislation.

Judge de Montigny, on the other hand, set out reasons as to why the information at issue did not amount to “personal information” as defined in the Privacy Act. The name of an individual, per se and without any context, is not “personal information” since it must relate to an “identifiable” individual to be considered as such. Ultimately, information to be protected by subsection 3(i) of the Privacy Act must tell us something of significance in relation to a person lest the protection afforded to personal information become meaningless. In the present case, the information that would be conveyed about the appellant’s employees if their names on the records at issue were to be disclosed was not integral to their dignity or identity and was of little import. Additionally, it was not the kind of information over which they would want to retain control nor in relation to which they would have a reasonable expectation of privacy. The documents revealed nothing about the employees who requested information from the Board beyond the fact that the records were made in the course of their employment.

Did the Board err in finding that the “personal information” at issue was publicly available and in exercising its discretion to disclose it under subsection 19(2) of the ATIA?

The Federal Court of Appeal concluded that Husky failed to provide sufficient evidence to demonstrate that the Board erred in its decision to disclose the information. This was sufficient to dismiss the appeal.

There were crucial factual elements missing from the record of evidence before the Court of Appeal on the question of whether the limited correspondence with the identifiers reveals no more personal information about the employees than was already publicly available, which was a question of mixed fact and law. While Husky argued that in exercising its discretion the Board disclosed more personal information about these employees than was publicly available, there was not enough evidence before the Court of Appeal to determine this.

Since Judge de Montigny had held that the information at issue was not “personal information”, there was no need to deal with the exemption found in paragraph 19(2)(b) of the ATIA for publicly available personal information; however, Judge de Montigny nevertheless addressed this question because it was the main ground upon which the Federal Court based its decision. There was no dispute that the names and job titles of the two employees, as well as their association with Husky as their employer, were publicly available on a web site at the time the Board informed Husky of its intention to disclose this information under the ATIA.

The decision is available on the Federal Court of Appeal Decisions website at Husky Oil v. Canada‑Newfoundland and Labrador Offshore Petroleum Board, 2018 FCA 10.

The applicable standard of review

The Federal Court of Appeal held that the applicable standard of review was reasonableness, as set out in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36.

Did the Federal Court err in its interpretation of what constitutes “personal information” under subsection 19(1) of the ATIA?

The Federal Court of Appeal held that it was not necessary to determine if the names of Suncor’s employees and their association with their employer met the definition of “personal information” under the Privacy Act. Because the Federal Court had ordered that employee information not in the public domain should be redacted, whether the information met the definition of “personal information” was not part of the appeal, despite the fact that the parties had agreed between themselves that the impugned information was personal information.

However, one of the judges (Judge de Montigny) disagreed on this point and determined that the names and titles of Suncor’s personnel, as well as the information revealing the employees’ involvement in Suncor’s procurement of certain geophysical information from the Board, did not meet the definition of “personal information” and therefore did not fall within the purview of subsection 19(1).

Did the Board err in exercising its discretion to disclose personal information under paragraph 19(2)(b) of the ATIA?

The Federal Court of Appeal held that there was insufficient evidence to establish that the information at issue included more information than was already available publicly. There was no real evidence that the information contained in the correspondence disclosed anything more about the employees’ work at Suncor than was already available publicly. There was also no evidence about how extensive the publicly‑available information was. Evidence regarding the role at Suncor with which these individuals were publicly associated would have been needed and there was no information from or about these employees.

The decision is available on the Federal Court of Appeal Decisions website at Suncor Energy Inc. v. Canada‑Newfoundland and Labrador Offshore Petroleum Board, 2018 FCA 11.