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Government Information in Canada/Information gouvernementale au Canada, Number/Numéro 19 (October 1999) Introduction The recent decision of the Nova Scotia Court of Appeal in Department of Health v. Dickie, (3) the first substantive case involving Nova Scotia's Freedom of Information and Protection of Privacy Act (FOIPOP) (4) to reach the Court of Appeal, has potentially grave implications for democratic accountability and for the survival of FOIPOP as anything other than a cloak for official secrecy. The law in Nova Scotia now is that an employee of a "public body" (government institution) may be a statutory "third party" in relation to a request for access to a record of the public body for which the employee works, and which concerns the employee's performance of work-related duty. The Interpretation section of the Act (s. 3) defines "third party" as follows:
--where "public body," by necessary implication, means the public body subject to the request for access to a record and its employees in relation to the substance of the request. Government employees do not have absolute "rights of privacy" as regards the performance of work-related duty any more than a public body has the right to deny access to information which does not fall into an exempt category. By construing the Act against its own defined terms, the Court of Appeal has in effect struck down the second part of the meaning of "third party" given in subsection 3(m) of the act. Briefly stated, the facts of the case are these: the respondent, a former patient in a provincial drug treatment facility, requested from the Department of Health, the public body concerned, access to the record of an investigation conducted at her request into allegations of breach of trust made by her against an employee of the facility. The Department of Health disclosed some information, more was disclosed on the advice of the Review Officer, (6) and still more was disclosed when the applicant successfully appealed to the Supreme Court the decision by the Department of Health not to release any further information. (7) The Department of Health then successfully appealed from the decision of the Supreme Court in favour of the applicant.
Appeal in the Supreme Court of Nova Scotia The most remarkable aspect of the entire case is that the government employee who was the subject of the investigation was assumed to have statutory third party standing which entitled him to protection of privacy under the act. (8) It is difficult to understand why subsection 3(m) should have been disregarded, unless there existed a presumption in favour of the absolute and unexemptable protection of privacy. But the Act itself provides for the discretionary disclosure of personal information under certain well-defined conditions. At no point in the proceedings was the statutory definition of "third party" referred to. It was as if the term had been left undefined in the Act, or the third party in question was not the government employee who was the subject of the investigation with which the application for access to records was concerned. In his decision, however, Kelly, J. did refer to the definition of "public body":
The judge overlooked that it was not subsection 3(j) but subsection 3(m) (meaning of "third party") which was material. The latter, moreover, could not be read so as to exclude employees of a government department without being inconsistent with the plain words of the subsection. Just as "employee," in relation to a public body, includes contractees (subsection 3(b)), so "public body," in relation to a request for access to a record, must be deemed to include employees of the public body. The Supreme Court's decision in favour of the applicant turned on the failure to adduce the definition of "third party" given in subsection 3(m), which, whether read literally or contextually, could not support the ascription of statutory third-party standing to the employee who was the subject of the investigation. The Department of Health could not build a protection-of-privacy case on section 20 (Personal information) or section 27 (Disclosure of personal information) without first establishing that the employee whose privacy they were attempting to protect was entitled to third-party standing under subsection 3(m). Subsection 3(m) by implication exempts government employees, in relation to the public bodies that employ them, from the right of privacy with respect to personal information bearing on their performance of work-related duty. Kelly, J. did not exaggerate when he observed, "This is an application that strikes directly at the core of the purpose of the legislation." (10) It would have been remarkable that there was no challenge to the judge's ordering the name of the government employee deleted and "third party" inserted in its place, had not counsel assumed, and agreed between themselves, that "the only 'third party' requiring notice is the person alleged to have engaged in the sexual acts complained of by Ms. Dickie." (11)
Appeal in the Nova Scotia Court of Appeal According to Cromwell, J.A., who rendered the decision on behalf of the three-judge panel, "The case is, first and last, one of statutory interpretation because the Act deals comprehensively with the rights of access and privacy in issue here." (12) His three-step analysis proceeded as follows:
A succinct, one-step analysis more in keeping with the act's interpretation of its own terms would be as follows:
Until that determination had been made it was nugatory to
consider whether the information requested was personal information within
the meaning of the Act, much less whether its disclosure could be
"presumed to be an unreasonable invasion of personal
privacy." (13) The assumed
third-party standing of the government employee was not judicially
considered because, in the words of Cromwell, J.A., it was "common
ground that, in this case, there is only one third party within the
meaning of the Statute and that is the employee against whom the
allegations have been made." (14) But the statutory definition of "third party"
makes clear that the employee against whom the allegations were made could
not possibly have been a third party within the meaning of the act. The
ratio decidendi takes into account considerations which are not
relevant to the statutory definition of "third party."
Protection of privacy was not material in that the government employee was
not a third party within the meaning of the act. While Cromwell, J.A. was certainly right to observe,
"Fundamental to the question of disclosure in cases like this one is
the definition of 'third party' under the Act," (15) one wonders why it was not considered
much less applied. The analysis under the act in this case depends
entirely on the subsection 3(m) exclusion of "a public body"
from the scope of third party in relation to a request for access to a
record. If the applicant could not be a third party in relation to the
request for access, then neither could the public body in relation to the
same request. Both the Supreme Court and the Court of Appeal erred in
failing to find that the government employee who was the subject of the
investigation was not a third party in relation to the request for access
to the record of the investigation. The starting point for the ascription
of statutory third-party status to a government employee is to apply the
test of subsection 3(m), the purpose of which is not to limit the
protection of privacy to which government employees are otherwise entitled
as citizens, but to widen the accountability of public bodies. While there
is undoubtedly a presumption of privacy with regard to personal
information, there is no comparable presumption of third-party status with
regard to the employees of public bodies, access to whose records is
ensured by the Act. Conclusion Statutory interpretation is easy when the statute in
question defines its terms as clearly and concisely as Nova Scotia's
Freedom of Information and Protection of Privacy Act defines
"third party." No statute may be construed so liberally that the
interpretation of its own terms is disregarded. It is entirely out of
keeping with both the letter and the spirit of the Act to use protection
of privacy to defeat freedom of information. It is not a question whether
"the citizen's right to know trumps a third party employee's right to
privacy," (16) but whether the
public body's assumption of third-party status in the person of an
employee trumps the citizen's right of access to information. Nor is it a
question of "balancing" freedom of information and protection of
privacy in some uneasy and potentially unequal relationship. It is
possible, as it is necessary, to ensure both the "right of
access to documents of public bodies" and the "right of
privacy with respect to personal information held by public bodies."
It is irresponsible for the courts to encourage in governments too prone
to secrecy at any cost the belief that they can hide behind protection of
privacy in order to evade their legal obligations under freedom of
information. Ignorantia judicis foret calamitatem innocentis
("A judge's ignorance would mean calamity for the innocent"). As
Kelly, J. observed, "It is important for the public to believe this
Act, now an important part of the democratic process, is being applied
fairly and conscientiously by public officials." (17) Notes [1] May be cited as/On peut citer comme suit: Barry Cahill. "Are Freedom of Information and Protection of Privacy Mutually Exclusive? A Comment on Dickie." Government Information in Canada/Information gouvernementale au Canada No. 19
(October 1999).
[http://www.usask.ca/library/gic/19/cahill.html] [2]
Barry Cahill [3] [1999] N.S.R. (2d) TBEd. MY.034 (N.S.C.A.).
[4]
Freedom of Information and
Protection of Privacy Act, S.N.S., 1993, c. 5.
[5] Emphases added; the definition is copied from British Columbia's Freedom of Information and Protection of Privacy Act, S.B.C., 1992, c. 61, Schedule 1, now the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165. Back to text. [6] It is clear that both the Review
Officer and the parties to the review took for granted that the government
employee concerned was a third party within the meaning of subsection 3(m)
of the Act; In the matter of a request for review by Sharon Dickie from
a
decision of the Department of Health dated February 24, 1995 to withhold
certain documents, Report FI-95-09 (17 November 1995). The statutory
Review Officer is an ombudsman who practises alternative dispute
resolution as between an applicant and the head of the public body
concerned. Nova Scotia does not have an Information and Privacy
Commissioner. [7] Dickie v. Nova Scotia (Minister of Health), (1998) 168 N.S.R. (2d) 108 (N.S.S.C.).
[8] See for example Dickie v. Nova Scotia (Minister of Health), (1996) 153 N.S.R. (2d) 344 (N.S.S.C.); Dickie v. Nova Scotia (Minister of Health), (1997) 156 N.S.R. (2d) 396 (N.S.C.A.).
[9] Supra note 7, at 118.
[10] Supra note 7, at 119.
[11] Supra note 7, at 117.
[12] Supra note 3, at [1].
[13] Supra note 3, at [5].
[14] Supra note 3, at [9].
[15] Supra note 3, at [64].
[16] Supra note 3, at [55].
[17] Supra note 7, at 127.
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