Case Report – Federal Court deals with what’s accessible as “relating to” a public service position or function

20 Jul

On June 9th, the Federal Court held that the employment history of federal public servants prior to their entry into the pubic service is not accessible as information that “relates to the position or functions of the individual.”

Section 19 of the Access to Information Act is a mandatory exemption for records containing “personal information” as defined in section 3 of the Privacy Act. Section 3 of the Privacy Act defines personal information as “information about an identifiable individual,” including information related to an individual’s “employment history.” This definition is then subject to a provision that deems certain kinds of information to be excluded from the definition of personal information, including:

3(j) information about an individual who is or was an officer or employee of a government institution that relates to the position or functions of the individual including,

(i) the fact that the individual is or was an officer or employee of the government institution,

(ii) the title, business address and telephone number of the individual,

(iii) the classification, salary range and responsibilities of the position held by the individual,

(iv) the name of the individual on a document prepared by the individual in the course of employment, and

(v) the personal opinions or views of the individual given in the course of employment

The applicant relied on this deeming provision in seeking access to information about job competition candidates’ employment history prior to their entry into the pubic service. He argued that this information, though not about a position or function in the public service, nonetheless “relates to” a position or function because each candidate’s employment history prior to entry into the public services was essential to obtaining a public service position.

The Court rejected this argument, stating:

…the Court cannot conclude that the information to which this application pertains is information relating to the position or functions of the candidates hired under these four competitions. This information concerns their education, experience and skills prior to obtaining a position in a government institution. It also primarily concerns the persons themselves, even if these skills and personal suitability were assessed to ensure that these candidates had the skills otherwise required for these positions in the federal administration. As mentioned, the information regarding the general characteristics directly associated with these positions, including the qualifications required to obtain them, – as opposed to information on the candidates themselves – was disclosed to the applicant. (Emphasis in original.)

The Court noted that its finding was on an issue of first impression.

Nault v. Canada (Public Works and Government Services), 2010 FC 623.

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