Dalhousie University v. French

Dalhousie University v. French Court Court of Appeal Date 2003-01-23 Citation 2003 NSCA 16 Docket CA 171277 Judge/Registrar/Adjudicator Hamilton, M. Jill (Honourable Justice); Oland, Linda L. (Honourable Justice); Roscoe, Elizabeth A. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Dalhousie University v. French - 2003 NSCA 16 - 2003-01-23 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Dalhousie University v. French, 2003 NSCA 16 Date: 20030123 Docket: CA 171277 Registry: Halifax Between: Dalhousie University Appellant v. Andrew S. French Respondent Judges: Roscoe, Oland and Hamilton, JJ. A. Appeal Heard: December 2, 2002 Held: Appeal dismissed, with costs payable to the respondent in the amount of $2,500 including disbursements, as per reasons for judgment of Hamilton, J.A., Roscoe and Oland, JJ.A. concurring Counsel: Harvey L. Morrison, for the Appellant C. Scott Sterns, for the Respondent Reasons for judgment: [1] This is an appeal from the decision of Justice Gerald R. P. Moir dated January 25, 2002, wherein he ordered disclosure to the respondent, Andrew S. French (“Dr. French”), pursuant to the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, of written submissions provided in connection with the first-term survey and the departmental survey of the Department of Physiology and Biophysics at the Dalhousie Medical School in 2000. [2] Detailed facts are set out in paragraphs 1 to 10 inclusive of the trial judge’s decision, reported at [2002]N.S.J. No. 139. I will only summarize them here. Dr. French was nearing the end of his first five year term as head of the Department of Physiology and Biophysics, when the normal five year survey of the department and the normal first-term survey were conducted. The later survey was to evaluate Dr. French as head of the department and to make recommendations concerning his future as head. [3] As part of the survey process, the survey committee received a self study, prepared for the most part by Dr. French, conducted interviews of Dr. French and 38 others, and received written submissions from 15 others. Six of the written submissions were provided to Dr. French with the consent of the authors. It is the remaining written submissions, with minor deletions relating to other persons, that the trial judge ordered be disclosed to Dr. French when he sought disclosure of this information under the Act. [4] The report of the survey committee was critical of Dr. French. As stated by the trial judge in paragraph 5: The committee recommended a second term of only eighteen months, during which “changes in administrative style and improvements in departmental functions and interactions must be achieved.” Specific recommendations included development of a long-term plan with input from all interested parties, establishment of a “department advisory council” to advise Dr. French and institution of a process “for linked recruitments” with “specific guidelines for ... appointments”. Progress was to be monitored by a “Dean’s Senior Advisory”. [5] The issues to be determined on appeal were set out by the appellant as follows: (a) Did the submissions to the Survey Committee constitute personal information of the authors of those submissions (third parties) within the meaning of the Act either in whole or in part; (b) Does s. 20(3)(d) or s. 20(3)(g) apply to the submissions to the Survey Committee; (c) Would the disclosure of those parts of the submissions identified in the Schedule of Decisions on Deletions constitute an unreasonable invasion of the personal privacy of the authors of those submissions; (d) Does s. 20(5) operate to preclude the disclosure of the information referred to in the Schedule of Decisions on Deletions. [6] The trial judge set out the approach to be followed to determine whether these written submissions should be disclosed at para. 13: As both counsel pointed out, Dickie v. Nova Scotia ([1999] N.S.J. No.116 (NSCA)) established the approach to be taken by this court on appeals under the Freedom of Information and Protection of Privacy Act. The process may involve three steps and these were discussed at paragraphs fifteen to seventeen of Dickie. “The first step is to determine whether the requested information is personal information within the meaning of the Act.”: para. 15. I am to apply the broad definition of “personal information” but, as will be seen, I am of the opinion that the definition contains a substantial restriction which applies on the facts of this appeal. “The second step is to determine whether disclosure of the personal information would constitute an unreasonable invasion of privacy.”: para. 17, and at this stage s. 20(2), s. 20(3) and s. 20(4) may have application. “The third step is reached if a s. 20(4) does not apply.”: para. 17. If applicable, the third step involves determining whether a s. 20(3) presumption has been rebutted by the applicant. (Citation added) [7] The trial judge then took the first step and considered whether the written submissions were “personal information” within the meaning of the Act, and, if so, “personal information” of whom. In his consideration the trial judge distinguished between different types of information contained in the written submissions, distinguishing the views and opinions expressed about Dr. French from the balance of the written submissions. He determined that on the plain meaning of s. 3(1)(i)(ix) of the Act that the views and opinions about Dr. French expressed in the written submissions, as opposed to the balance of the information contained in the written submissions, were “personal information” of Dr. French, not the authors, and should be disclosed to Dr. French. He also determined that for the most part, the balance of the information contained in the written submissions was “personal information” of the authors. I agree. [8] The trial judge stated at paragraph 17: It appears that the Legislature has, in s. 3(1)(i)(ix), come to grips with one aspect of a clash inherent to a legislative scheme that attempts to balance access to information and protection of privacy. The clash arises where one person addresses a public body about another. The person who is the subject of the communication may have an interest in knowing what information was given, and the person also has a privacy interest at stake if others seek access to a record of the communication. The person who provided the information may also have a privacy issue at stake, where, for example, the information was provided in confidence. The interests of the two are mutually exclusive. The effect of s. 3(1)(i)(ix) is to come down on the side of the person spoken about where the information is a personal view or opinion about that person. Thus, if one asserts fact about another and the information is recorded, it is “recorded information about an identifiable individual” and is subject to the second and third steps identified in Dickie, but if one goes so far as to state a view or opinion about another, it is within “personal views or opinions ... about someone else”, which is excepted from “personal information” and cannot be the subject of the second and third steps. I think the choice of excluding opinions expressed about others is consistent with the scheme of the Act, as well as the stated purposes or objects. [9] Section 3 (1) of the Act provides as follows: In this Act, (i) "personal information" means recorded information about an identifiable individual, including (i) the individual's name, address or telephone number, (ii) the individual's race, national or ethnic origin, colour, or religious or political beliefs or associations, (iii) the individual's age, sex, sexual orientation, marital status or family status, (iv) an identifying number, symbol or other particular assigned to the individual, (v) the individual's fingerprints, blood type or inheritable characteristics, (vi) information about the individual's health-care history, including a physical or mental disability, (vii) information about the individual's educational, financial, criminal or employment history, (viii) anyone else's opinions about the individual, and (ix) the individual's personal views or opinions, except if they are about someone else; [emphasis added] [10] Both s. 3 (1)(i)(viii) and (ix) must be considered. [11] On the facts of this case s. 3(1)(i)(viii) can be read as follows: “personal information” means recorded information about Dr. French, including anyone else’s opinions about Dr. French. The written submissions, to the extent they express opinions about Dr. French, come within the definition of personal information of Dr. French. [12] On the facts of this case s.3(1)(i)(ix) can be read as follows: “personal information” means recorded information about the authors of the written submissions, including the authors’ personal views or opinions, except if they are about someone else. The written submissions Dr. French seeks to have disclosed, to the extent they express views and opinions about him, do not come within the definition of personal information of the authors, since they express the authors’ views and opinions about someone else, namely Dr. French. [13] Accordingly, on a plain reading of these subsections, the views and opinions about Dr. French contained in the written submissions to the survey committee do not come within the definition of “personal information” of the authors, but do come within the definition of “personal information” of Dr. French. Being “personal information” of Dr. French, but not of the authors, the views and opinions about Dr. French expressed in the written submissions should be disclosed to Dr. French as ordered by the trial judge. [14] Having determined that the views and opinions expressed about Dr. French in the written submissions should be disclosed to him, since they were not “personal information” of the authors by virtue of s.3(1)(i)(ix), the trial judge went to step two of Dickie and considered whether disclosure of the balance of the information contained in the written submissions would constitute an unreasonable invasion of the authors’ privacy. [15] The trial judge described the balance of the information contained in the written submissions in paragraph 21: The written submissions to the survey committee contain some personal information: names, addresses and telephone numbers of authors; statements as to an author’s professional or academic background; opinions about the proper administration of a medical school; and, references to other faculty members. To the extent that the written submissions contain assertions of fact about Dr. French, these are also within the definition. [16] Determining whether disclosure would constitute an unreasonable invasion of the authors’ privacy involves a consideration of s.20 of the Act, which provides in part as follows: 20 (1) The head of a public body shall refuse to disclose personal information to an applicant if the disclosure would be an unreasonable invasion of a third party's personal privacy. (2) In determining pursuant to subsection (1) or (3) whether a disclosure of personal information constitutes an unreasonable invasion of a third party's personal privacy, the head of a public body shall consider all the relevant circumstances, including whether (a) the disclosure is desirable for the purpose of subjecting the activities of the Government of Nova Scotia or a public body to public scrutiny; . . . (c) the personal information is relevant to a fair determination of the applicant's rights; . . . (f) the personal information has been supplied in confidence; . . . (3) A disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy if... (d) the personal information relates to employment or educational history; . . . (g) the personal information consists of personal recommendations or evaluations, character references or personnel evaluations; [17] The trial judge was satisfied the presumption under s.20(3) did not apply to the facts in this case. At paragraphs 17 and 18 he considered the relationship between s.3(1)(i)(ix) and s.20(3)(g) when he stated: 17. ...The privacy of a third party is protected starting at s. 20 and “third party” is defined by s. 3(1)(m) to exclude both the person who made the request and the public body. This implements the scheme referred to in s. 2(c) of the purpose clause, to provide individuals with access to personal information “about themselves” while protecting the privacy interest of others in information about themselves. 18. In my opinion, there is no conflict between the exclusionary part of the definition of personal information and s. 20(3)(g), which provides “A disclosure of personal information is presumed to be an unreasonable invasion of a third party’s personal privacy if ... the personal information consists of personal recommendations or evaluations, character references or personnel evaluations.” This provision incorporates the definition of personal information including the exclusion of views or opinions expressed about another. Thus, it seems clear that the presumption concerns personal recommendations for or against the third party, personal evaluations evaluating the third party, references respecting the third party’s character or evaluations evaluating the third party for the purposes of employment or “personnel”. [18] The trial judge also considered the effect of s.20(3)(d) and determined it did not give rise to a presumption against disclosure, given that the overwhelming focus of the written submissions is on Dr. French, with any reference to the authors’ employment or educational history being minimal and inconsequential. [19] In considering s. 20(1) and (2), the trial judge noted the distinction between this case and Dickie, where the third party was analogous to Dr. French rather than the authors. He noted the substantial interest Dr. French has in knowing what information was considered by the survey committee in reaching its conclusions, having found as a fact that the report of the survey committee had caused Dr. French financial loss and had adversely affected his reputation and prospects for obtaining another administrative position. He also considered the divergent evidence with respect to the confidentiality of these written submissions and other aspects of the survey. [20] Having determined that the presumption in s. 20(3) did not apply, and having considered the above circumstances, the trial judge was satisfied that Dr. French had established that disclosure of the remaining information in the written submissions, other than information about other persons, would not constitute an unreasonable invasion of the authors’ privacy. The trial judge did not err in this determination. [21] I agree with the conclusions expressed by the trial judge in paragraph 28 of his decision: Considering all of the circumstances, disclosure of personal information in the written submission is not an unreasonable invasion of privacy if the information is necessary to Dr. French knowing what was said about him to the survey committee. Particularly, there ought to be disclosure of the opinions expressed about Dr. French and the assertions of fact as to his behaviour or actions. As regards ancillary information within the definition of “personal information”, Dr. French has met the burden upon him of establishing that disclosure would not constitute an unreasonable invasion of privacy only to the extent that the information would be necessary to a full understanding of the opinions and assertions of fact. This would include the names of the authors and comments on the present or past operation of the school, the department or any part of it. This would not include references to the names of others, comments concerning the work of others or, without turning to the presumption, information on the author’s professional or academic background. [22] Accordingly I would dismiss the appeal with costs payable to Dr. French in the amount of $2,500 including disbursements. [23] I would ask counsel for the appellant to draft an order giving effect to this decision, with the documents to be disclosed attached, edited in accordance with the trial judge’s decision. If counsel are unable to agree to the form of the order, they should advise the court on or before February 10, 2003. Hamilton, J. A. Concurred in: Roscoe, J.A. Oland, J.A.