Privy Council Office (Re), 2021 OIC 10

Date: 2021-04-19
OIC file number: 3216-00258
Institution file number: A-2015-00441/EB

Summary

The complainant alleged that the Privy Council Office (PCO) had improperly withheld names of the employees within the Prime Minister’s Office under subsection 19(1) (personal information) of the Access to Information Act in response to an access request for records related to the Minister of Revenue’s announcement regarding audits of registered charities for political activities. The Office of the Information Commissioner (OIC) concluded that the withheld information was personal information, therefore meeting the requirements of the exemption. The OIC was also satisfied that the circumstances set out in subsection 19(2) did not exist. The complaint is not well founded.

Complaint

[1]      The complainant alleged that the Privy Council Office (PCO) had improperly withheld information under subsection 19(1) (personal information) of the Access to Information Act in response to an access request for records related to the Minister of Revenue’s January 20, 2016, announcement regarding audits of registered charities for political activities.

Investigation

Subsection 19(1): personal information

[2]      Subsection 19(1) requires institutions to refuse to release personal information.

[3]      To claim this exemption, institutions must show the following:

• The information is about an individual—that is, a human being, not a corporation.
• There is a serious possibility that disclosing the information would identify that individual.
• The information does not fall under one of the exceptions to the definition of “personal information” set out in paragraphs 3(j) to 3(m) of the Privacy Act (for example, business contact information for public servants).

[4]      When these requirements are met, institutions must then consider whether the following circumstances exist:

• The person to whom the information relates consents to its release.
• The information is publicly available.
• Disclosure of the information would be consistent with section 8 of the Privacy Act.

[5]      When one or more of these circumstances exist, subsection 19(2) of the Access to Information Act requires institutions to reasonably exercise their discretion to decide whether to release the information.

Does the information meet the requirements of the exemption?

[6]      The records consist of 87 pages of drafts of a news release discussing the announcement of the winding down of the Canada Revenue Agency (CRA)’s political activities audit program for charities, as well as email chains, exchanged between PCO, CRA, and employees of the Prime Minister’s Office, discussing these drafts. The only information of interest to the complainant are the names of the employees of the Prime Minister’s Office (“the exempt staff”), as they appear within the email chains. Therefore, the scope of the Office of the Information Commissioner’s (OIC) investigation was limited to the application of subsection 19(1), where it was applied to sever these names, or variations thereof, at pages 1, 30, 64, 68, and 69 of the records at issue.

[7]      In its representations, PCO relied on the decision in Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, to support its position that information about a member of the Prime Minister’s exempt staff is “personal information,” falling within the scope of subsection 19(1). This decision clarified that Ministers and exempt staff are not “officers or employees” of a government institution. As a result, information that relates to these individuals’ positions or functions does not fit within the exception to the definition of “personal information” set out in paragraph 3(j) of the Privacy Act.

[8]      Although since that decision, the Privacy Act was amended to include an additional exception to the definition of “personal information” for information pertaining to a ministerial adviser or member of a ministerial staff (paragraph 3(j.1)), this exception is much narrower than the exception set out in paragraph 3(j). Specifically, the paragraph 3(j.1) exception applies only to the fact that an individual is or was a ministerial adviser or staff member, and the individual’s name and title, on records created after June 21, 2019.

[9]      In the present instance, the names of the exempt staff, within the context of the email chains, reveal more than the fact that these individuals are or were members of the Prime Minister’s ministerial staff. The names, in context, reveal information that relates to these exempt staff’s positions or functions.

[10]    As set out in my “Input on the Justice Canada’s review of the Privacy Act”, I am of the view that the scope of the exception relating to ministerial advisers or staff members should be more consistent with paragraph 3(j). If that were the case, the records at issue would most likely fall within the exception to the definition of personal information and would be released. However, this is not how paragraph 3(j.1) is written, and in any event, the paragraph only applies to records created after June 21, 2019.

[11]    In light of the above, I am unable to conclude that the information is not personal information. I agree that the information meets the requirements of the exemption, and I conclude that the information does not fall under one of the exceptions to the definition set out in paragraphs 3(j) to 3(m) of the Privacy Act.

Did the institution reasonably exercise its discretion to decide whether to release the information?

[12]    Under subsection 19(2), PCO had the discretion to decide whether to release the exempt staff’s personal information, when one or more of the circumstances set out in that subsection existed.

[13]    PCO, however, provided evidence that it made a reasonable effort to seek the consent of the individuals to whom the personal information belongs and that no consent was given. Accordingly, PCO did not have the discretion to disclose the names of the exempt staff pursuant to paragraph 19(2)(a).

[14]    PCO also demonstrated that the disclosure of the information would not be consistent with section 8 of the Privacy Act. Therefore, PCO also did not have the discretion to disclose the names of the exempt staff pursuant to paragraph 19(2)(c).

[15]    With regard to paragraph 19(2)(b) the OIC, during its investigation, pointed out that the names and titles of the exempt staff whose names appear within the responsive records, along with contact information for these individuals, are publicly available online. The OIC queried how, in light of what is publicly available regarding these named individuals and their functions as exempt staff, the disclosure of the names, within the context in which the information appeared, would reveal any personal information about these individuals that was not already publicly available.

[16]    In its representations, PCO agreed with the OIC that the names and titles of the exempt staff members are in the public domain. However, PCO maintained that the names of the exempt staff, within the context in which they appeared is not publicly available information. Specifically, the fact that these exempt staff were consulted on this particular news release, and in some instances gave comments on the draft under consultation, which in turn led to modifications to the draft, is not in the public domain.

[17]    I accept PCO’s evidence that the exempt staff’s involvement in the review and approval of the information contained within the records at issue is more than merely transactional and reveals more personal information about these individuals than what is publicly available.

[18]    I am therefore satisfied that in the present instance none of the circumstances set out in subsection 19(2) that would permit the disclosure of personal information existed. Consequently, PCO did not have any discretion to disclose the names of the exempt staff within the context of the responsive records.

Results

[19]    The complaint is not well founded.

Section 41 of the Access to Information Act provides a right to the complainant who receives this report to apply to the Federal Court for a review. The complainant must apply for this review within 35 business days after the date of this report and must serve a copy of the application for review to the relevant parties, as per section 43.