Nova Scotia (Health) v. Dickie

Nova Scotia (Health) v. Dickie Court Court of Appeal Date 1999-04-07 Citation 1999 NSCA 62 Docket CA 148941 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Cromwell, Thomas A. (Honourable Justice); Hart, Gordon L.S. (Honourable Justice) Document Type Decision Relations Library Sheet - Nova Scotia (Health) v. Dickie - 1999 NSCA 62 - 1999-04-07 - Library Sheet Decision Content Date:19990407 Docket: C.A. 148941 NOVA SCOTIA COURT OF APPEAL Cite as: Nova Scotia (Health) v. Dickie, 1999 NSCA 62 Roscoe, Hart and Cromwell, JJ.A. BETWEEN: DEPARTMENT OF HEALTH ) Catherine J. Lunn ) for the Appellant Appellant ) ) - and - ) ) I. Claire McNeil ) for the Respondent SHARON DICKIE ) ) Respondent ) Appeal Heard: ) February 4, 1999 ) ) ) Judgment Delivered: ) April 7, 1999 ) ) ) ) ) ) ) ) THE COURT: Appeal allowed per reasons for judgment of Cromwell, J.A.; Hart and Roscoe, JJ.A. concurring. CROMWELL, J.A.: I. Introduction: [1] When a citizen complains that a government employee has acted improperly, what is the citizen entitled to know about the government’s investigation and decision-making process in response to the complaint? The employee has rights of privacy. The government must be accountable to the public but also honour its obligations to its employees. Citizens have rights of access to information. The question raised on this appeal concerns how these rights, duties and interests are to be balanced under the provisions of the Freedom of Information and Protection of Privacy Act, S.N.S. 1993, c. 5. 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. II. Facts and Proceedings: [2] The respondent Sharon Dickie was a patient in a provincial treatment facility. An employee of the appellant department was one of her counselors. He will be called “the third party”. In 1987, Ms. Dickie complained to the department that the third party had engaged in an emotional and sexual relationship with her and that this was in breach of his professional duty. There was an initial investigation at the time but it was terminated in accordance with what the Department understood to be Ms. Dickie’s wishes at the time. Approximately five years later, Ms. Dickie renewed her complaint. After investigation, the department advised Ms. Dickie that no disciplinary action could be taken against the third party. [3] Ms. Dickie then applied under provincial freedom of information legislation for access to information about the investigation and the decision. Some information was released initially, further information was released after a review by a review officer and, finally, still further information was ordered released as a result of Ms. Dickie’s appeal heard by Kelly, J. of the Supreme Court of Nova Scotia (see 168 N.S.R. (2d) 108 (S.C.)). The Department now appeals that order arguing that Kelly, J. erred in directing release of this additional information. III. Issues: [4] All of the documents in dispute relate to the investigation and decision-making by management with respect to the allegation of work-related misconduct by the third party. The documents fall into two main categories, although some documents contain elements of both. One group may be described as fact-gathering records because they contain material in the nature of witness statements, file summaries, etc. The other group may be described as case assessments because they contain material in the nature of the evaluation of the evidence, opinions concerning the appropriate conclusions that should be reached and advice or recommendations for action in relation to the allegations. [5] The application of the Act in this case involves a three step analysis. Under the Act, personal information (a defined term) is not to be disclosed if its disclosure would be an unreasonable invasion of a third party’s personal privacy. The first step in the analysis is, therefore, to determine whether the disputed material is personal information within the meaning of the Act. Disclosure of personal information relating to employment history is presumed to be an unreasonable invasion of personal privacy. (s. 20(3)(d)). The second step, therefore, is to determine whether this presumption applies to the disputed material. The presumption, however, is only that. It may be rebutted if, taking into account all of the relevant circumstances, including the matters specified in s. 20(2), it is concluded that the disclosure is not an unreasonable invasion of a third party’s personal privacy. The third step is to make that determination. [6] While there are some subsidiary matters to be addressed, the main issues on the appeal relate to these three steps of the analysis. I would state the issues as follows: 1. Do the disputed documents contain “personal information” within the meaning of the Act? 2. If so, is it personal information related to employment history so that its disclosure is presumed to be an unreasonable invasion of personal privacy? 3. Does the balancing of all the relevant circumstances favour disclosure? IV. The Legislation: a. Purposes [7] This case raises a number of questions concerning the interpretation and application of the Freedom of Information and Protection of Privacy Act. As the title of the statute indicates, it is concerned with striking a balance between access to information and personal privacy. This is made clear in the detailed statement of purpose found in s. 2 of the Act: 2 The purpose of this Act is (a) to ensure that public bodies are fully accountable to the public by (i) giving the public a right of access to records, (ii) giving individuals a right of access to, and a right to correction of, personal information about themselves, (iii) specifying limited exceptions to the rights of access, (iv) preventing the unauthorized collection, use or disclosure of personal information by public bodies, and (v) providing for an independent review of decisions made pursuant to this Act; and (b) to provide for the disclosure of all government information with necessary exemptions, that are limited and specific, in order to (i) facilitate informed public participation in policy formulation, (ii) ensure fairness in government decision-making, (iii) permit the airing and reconciliation of divergent views; (c) to protect the privacy of individuals with respect to personal information about themselves held by public bodies and to provide individuals with a right of access to that information. (emphasis added) [8] The Statute provides for a general right of access “to any record in the custody or under the control of a public body” but this right does not extend to “information exempted from disclosure pursuant to [the] Act”: s. 5(1) and (2). The Act creates a number of exemptions from disclosure. Many of these are discretionary in the sense that the head of a public body may refuse disclosure on various grounds: see e.g. s. 13 - 19. Other exemptions are mandatory in the sense that the head of a public body is obliged by the Statute not to disclose certain types of information. The issues on this appeal relate most directly to the mandatory exemption relating to personal information. It is helpful, therefore, to review it in more detail. b. Disclosure of personal information: [9] The head of a public body must refuse to disclose personal information if disclosure would be an unreasonable invasion of a third party’s personal privacy: s. 20 (1). The term “third party” is defined in the Act. It is 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. [10] Personal information is also defined. It means “recorded information about an identifiable individual” (s. 3(i)). This, by Statute, includes the individual’s name (s. 3(i)(i)), information about the individual’s employment history (s. 3(i)(vii)), anyone else’s opinions about the individual (s. 3(i)(viii)) and the individual’s personal views or opinions, except if they are about someone else (s. 3(i)(ix)). [11] As noted, if information is “personal information” within the meaning of the Act, it must not be disclosed if disclosure would be “an unreasonable invasion of a third party’s personal privacy”. The Statute provides factors which are to be taken into account in deciding whether the disclosure falls into this category and also a list of circumstances in which disclosure would or would not be an unreasonable invasion. [12] The factors which must be taken into account in determining whether or not disclosure would be an unreasonable invasion of personal privacy include the following: 20 (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; ..... (h) the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant. [13] Subsection 20(3) sets out circumstances which are presumed to be unreasonable invasions. These include: 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; [14] Subsection 20(4) sets out circumstances which are not to be considered unreasonable invasions. These include: (4) A disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy if ..... (e) the information is about the third party’s position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister’s staff; c. The process: [15] As noted earlier, the application of the Act in this case involves three steps. It is helpful to review them in more detail. [16] The first step is to determine whether the requested information is personal information within the meaning of the Act. Counsel for the appellant accepts the burden of doing so. As noted above, personal information is defined in the Statute and so this step involves applying the statutory definition to the particular record under consideration. [17] The second step is to determine whether disclosure of the personal information would constitute an unreasonable invasion of privacy. All relevant circumstances must be considered and, in particular, the matters set out in s. 20(2). At the second stage, the presumption under s. 20(3) may come into play. If the information falls into one of those categories, there should be no disclosure unless the presumption of unreasonable invasion set up by that sub-section is rebutted having regard to all the relevant circumstances including those set out in s. 20(2). On the other side of the coin, the list of situations which do not constitute unreasonable invasions may also come into play at the second step. As noted, s. 20(4) sets out a list of such circumstances. This subsection does not set up a rebuttable presumption but is instead a deeming provision. In other words, if it applies, the case is governed by its operation without regard to countervailing arguments under s. 20(2). The third step is reached if a s. 20(3) presumption operates and s. 20(4) does not apply. In those situations, it must be determined if the presumption is rebutted. [18] When the internal processes mandated by the Act have been exhausted, there is a right to appeal to the Supreme Court by an applicant for information or by a third party: s. 41. While the Court has the authority to consider the matter afresh (or, in legal parlance, de novo), it has no authority to order the release of information exempted from disclosure under the Act. The authority of the Court, and its limits are set out in s. 42: 42 (1) On an appeal, the Supreme Court may (a) determine the matter de novo; and (b) examine any record in camera in order to determine on the merits whether the information in the record may be withheld pursuant to this Act. ..... (6) Where the Supreme Court finds that a record falls within an exemption, the Supreme Court shall not order the head of the public body to give the applicant access to the record, regardless of whether the exemption requires or merely authorizes the head of the public body to refuse to give access to the record. V. The Disputed Documents: [19] I briefly described the nature of the disputed documents earlier. It is necessary, however, to provide more detail about them in order to understand the issues on appeal. It is also helpful to bear in mind that throughout the documents, Kelly, J. ordered the name of the third party to be deleted and the description “the third party” to be inserted in its place. There is no challenge to this aspect of his order. i. The case record: (Booklet 1, Tab B, Appendix I, Tab 9) [20] This is a summary of the 1987 investigation into Ms. Dickie’s complaints. It names the persons involved and describes what happened during interviews with the third party and Ms. Dickie. ii. Chronological Sequence of Events (Booklet 1, Tab B) [21] This is a seven page document listing in chronological order the step-by-step events of the history of the case from October, 1985 to June of 1993 including the names of those involved. iii. Memorandum dated June 1, 1993 (Booklet 1, Tab A): [22] This document was drafted by the Administrator of the Division and forwarded to the Deputy Minister of the Department. Its purpose appears to be to advise the Deputy Minister concerning the complaint and investigation and to give a recommendation for action. The disputed parts of this record include the writer’s assessment of the facts, the writer’s assessment, based on discussion with others, of the legal position and the writer’s recommendation. [23] Appendix B to this memorandum of June 1 is also in dispute. It is somewhat unclear from the Order under appeal whether this appendix, which appears to be a list of telephone calls between certain numbers, was ordered released or not. The reasons of the judge indicate that the release of the document should include the appendices related to the portions of the document disclosed. While Appendix B is referred to in the part of the document ordered disclosed, its significance is explained in a portion of the document which is not required to be released. Other telephone records (Booklet 2, Tab 30) were held not to be subject to disclosure on the basis that their relevance had not been established and because “such telephone contacts might well be personally sensitive in nature.” iv. Other Materials in Booklet 1: [24] Tab B, Appendix A1, (Tab 1) is minutes of a meeting of employees to discuss Ms. Dickie’s allegations against the third party. It is dated November 5, 1987 and identifies individuals by name and describes their comments relating to the allegations. Tab B, Appendices B, D, E, F, G, H, J, K, L M1, N. O, P, Q, R, S, and T (i.e., Tabs 2 to 21 except Tabs 3, 13, 21) are not in issue on this appeal. Appendix I (Tab 9) is the case record discussed above. That leaves for consideration Appendices C, M and U. [25] Appendix C (Tab 3) is a notice to the third party from his employer concerning the immediate consequences of the complaint. Appendix M (Tab 13) is the written response of the third party to his employer’s request for a response after the complaint. It contains information about identified individuals. Appendix U (Tab 21) contains seven documents, one of which is a letter of July 8, 1993 which is no longer in dispute. The other six documents are statements by several employees, including the third party, relating to their recollection of the 1987 investigation. v. Booklet 2, Tabs 22 - 35: [26] Of these documents, Tabs 22 , 24 and 30 are not in issue on appeal. Tab 23 is an opinion of an employee of the Department prepared at the request of the employer. It contains information about identifiable individuals including their names. It also includes opinions of some of the individuals and personal views or opinions of some individuals about others. [27] Tabs 25 to 29 and 31 to 35 are, like Appendix U discussed above, summaries of employees’ recollections of the matters in issue. VI. Analysis: a. Personal information: [28] As noted, the first step in the analysis required by the Act is to consider whether any of the disputed records constitute personal information within the meaning of s. 3(i) of the Act. The appellant submits that the judge erred in giving this term too narrow an interpretation. [29] It is unclear in several instances whether or not the disputed contents of documents were considered by the judge to be personal information. In his overview of the Act, the judge said this with respect to the definition of “personal information”: Counsel for the Department submits that this list [i.e., the examples set out in s. 3(i)] is not exhaustive because of the word “including” in the introductory phrase. This interpretation would have been more clear if the drafters had used the phrase “without restricting the generality of the foregoing” but failure to do so does not, in my opinion, necessarily limit the clause to the subsections. The language of the introductory phrase is broad and is consistent with the general protection of privacy purpose expressed in s. 2(c). I would, however, note that any ejusdem generis application to the subsections of s. 3(l) would note that they do not suggest all information relating to an individual is to be protected, but generally those are very specific to that individual and relate to elements of her personality and not her employment characteristics. One possible exception is the reference to “employment history” in s. 3(l)(vii) and the views of others about the individual in (viii). However, I do not wish to suggest that this definition should receive a very restricted interpretation as the identification of the information as ‘personal’ is only the first step in the application of the privacy protection. (emphasis added) [30] With respect, I am of the view that aspects of this reasoning require clarification. As noted above, personal information for the purposes of the Act means “recorded information about an identifiable individual”. These words are broad, clear and simple. The Statute then provides a list of types of information that are included in the definition. In my opinion, the examples (set out in (i) through (ix) of the definition) illustrate, but do not limit the breadth of the definition set out in the opening words. The definition of “personal information” is, to use the words of LaForest, J. in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403 at para 68, “undeniably expansive”. While he was there referring to different legislation, it is very similar in this respect to the Nova Scotia Statute; moreover, while, LaForest, J. was in dissent, Cory, J., for the majority, specifically approved his approach to the interpretation of the legislation: at para 1. While the Nova Scotia Statute does not, as the judge observed, use the words “without limiting the generality of the foregoing ...” in addition to the word “includes”, the word “includes”, on its own, is a word of “extension, designed to enlarge the meaning of the preceding words, and not to limit them”: see National Bank of Greece v. Katsikonouris, [1990] 2 S.C.R. 1029 per LaForest, J. at 1041; see also Aquasource Ltd. v. British Columbia, [1998] B.C.J No. 1927 (.C.A.) at para. 41ff. I conclude that the specific examples should not be used to limit the definition of personal information in the statute. [31] With respect to the June 1, 1993 memorandum, the judge commented: ... The Department contends the names and employment positions deleted on page 2 are clearly personal information identifying an identifiable individual within the definition of personal information as defined in s. 3(l) and therefore is not permitted to be disclosed under the Act, pursuant to ss. 27(a) and (b). An individual’s name is personal, but in the context of the legislative scheme the emphasis is the restriction on the use of personal information collected by government for government purposes. At times this will involve restricting the personal information of employees, but not necessarily in the context of many inquiries for government information. For example, it would be totally contrary to the spirit of this legislation to refuse to respond to an inquiry for the name of the employee occupying a specific job function by responding that it could not release the name of the individual because it was “personal information”. The interpretation of the Act must be rational and logical and within the spirit of the overall legislation. Here, the names and positions of the employees is not information harmful to these employees. Indeed, they arguably acted with high regard for the integrity of their professional responsibilities and in furtherance of the stated operational regulations of their Division. (emphasis added) [32] In my opinion, these comments are incorrect because they take into account considerations which are not relevant to the definition of personal information in the Act. [33] Personal information is recorded information about an identifiable individual including the individual’s name. I have difficulty in understanding how the setting out of an individual’s name is anything other than information about an identifiable individual, particularly given that the statutory definition explicitly includes “the individual’s name”. All of the information in the June 1, 1993 memorandum relates to the investigation and assessment of the allegations made against the third party. I similarly have difficulty in understanding how this can be anything other than information about an identifiable individual. [34] Of course, the fact that information is personal information within the meaning of the Act does not mean that it is exempted from disclosure. It seems to me, however, that the breadth of the definition of such information, coupled with the detailed provisions relating to when it should or should not be disclosed suggest that the courts should not cut down the breadth of the definition by restrictive interpretation. In general, the balance between privacy and access under this legislative scheme is to be established at the stage of considering whether such information should or should not be disclosed. The breadth, clarity and simplicity of the definition is consistent with the statutory scheme which is encapsulated in section 27(a): A public body may disclose personal information only in accordance with the Act. [35] As noted, the judge said that a record containing the name of an identifiable individual should not be considered personal information under the Act because “... it would be totally contrary to the spirit of this legislation to refuse to respond to an inquiry for the name of the employee occupying a specific job function by responding that it could not release the name...because it was personal information”. This amounts to attempting to do the balancing required under the Act and with respect to which there are detailed provisions, by reading into the Act limitations of the clear, broad and simple definition it provides of personal information. [36] In my view, the correct way of analyzing the issue is to apply the definition of personal information as it appears in the Statute and then consider the question of disclosure under the other provisions of the Act. Generally speaking, disclosure will be denied where the release of personal information is an unreasonable invasion of a third party’s personal privacy. The named employees (with one exception) were not third parties for the purpose of this application; even though their names were personal information, release of those names could not, in the circumstances of this case, constitute an unreasonable invasion of a third party’s personal privacy. Even if the employees had been third parties, s. 20(4)(e) would have to have been considered. It deems that it is not an unreasonable invasion of privacy if the information is about the third party’s ... “position, functions or remuneration as an ... employee ... of a public body...”. That subsection appears to respond exactly to the judge’s concern. While I agree that these names should be disclosed as the judge held, I think that the judge erred in reaching that result by creating a limitation of the definition of personal information, rather than by giving effect to the clear, broad and simple language of the definition and then pursuing the analysis through the other steps required by the Act. [37] I conclude, therefore, that, in general, the disputed documents contain personal information. b. Employment History and Related Issues: [38] As noted, a finding that a record contains personal information within the meaning of the Act is only the first step in the analysis. If there is personal information, it must be determined whether its disclosure would constitute an unreasonable invasion of a third party’s personal privacy. [39] The appellant relies on s. 20(3), claiming that the disclosure of much of the material ordered disclosed by the judge is presumed under that section to be an unreasonable invasion of the third party’s personal privacy. The appellant relies primarily on s. 20(3)(d) and, to a lesser extent, on s. 20(3)(g) which, for convenience, are set out again here: 20(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; [40] Section 20(3)(d) presumes that the disclosure of personal information that relates to employment or educational history is an unreasonable invasion of a third party’s personal privacy. This must be read in light of s. 20(4) which deems that information relating to the third party’s position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister’s staff is not an unreasonable invasion of an individual’s personal privacy. As noted earlier, it is common ground that there is only one third party, namely, the employee against whom Ms. Dickie complained. The other employees who are named are not third parties in this case. [41] With respect to “employment history”, the appellant argues that the judge erred in failing to recognize that records relating to the investigation of the complaint comprise part of the employment history of the third party. For example, the Case Record sets out details about the investigation and the response of the third party which, the appellant submits, is part of the third party’s employment history. With respect to this document, the judge said: ..... I do not accept that a description of a Department employee’s participation in an investigative process would constitute ‘employment history’ any more than every such activity could be so categorized. To do so could arguably restrict all government activity from disclosure, and thus be inconsistent with the stated purpose of the Act. I accept that these employees participated in the expectation that the information they provided would be dealt with in some confidence, but they would also expect it would be made available to appropriate authorities who would be dealing with the alleged complaint. Thus, they would expect their participation of the investigative process would be revealed as appropriate to the overall process. They are government employees, and by participating in the investigation are performing part of their job function. (emphasis added) [42] I agree with the judge (and it was common ground on the appeal) that disclosure of the participation in an investigation by an employee, who is not a third party within the meaning of the Act, is not presumed to be an unreasonable invasion of that employee’s personal privacy. The presumption only applies to invasions of third parties’ personal privacy. The submission by the appellant is not that these records constitute employment history of employees who participated in the investigation, but who are not third parties. The submission is that the records compiled are employment history of the third party. [43] Two examples may illustrate the point. As noted earlier, the June 1, 1993 memorandum has a list of employees or former employees who were interviewed by the employer in relation to the allegations. Disclosure of that part of the record was opposed earlier, but was conceded before us to be appropriate. This list of names is personal information within the meaning of the Act, but it is not personal information about the third party and does not form part of the third party’s employment history because the list does not disclose any information about the third party’s job related activities. Accordingly, the list does not fall within the presumption in subsection 20(3)(d). [44] By way of contrast, the Case Record sets out the responses of the third party to questioning by his employer about the substance of the complaint. This, in my opinion, is part of his employment history within the meaning of s. 20(3)(d) because it sets out statements about his conduct elicited in an interview by his employer and as part of an investigation into his work-related conduct. [45] The term “employment history” is not defined in the Act, but both the words themselves and the context in which they are used suggest that the ordinary meaning of the words in the employment context is intended. In the employment context, employment history is used as a broad and general term to cover an individual’s work record. As Commissioner Flaherty put it in Order No. 41-1995; British Columbia (Minister of Social Services), [1995] B.C.I.P.C.D. No. 14: I agree ... that employment history includes information about an individual’s work record. I emphasize the word “record” because in my view this incorporates significant information about an employee’s performance and duties. (at p. 6) [46] Section 20(3)(d) emphasizes the generality of the expression by speaking not simply of personal information which is employment history, but of personal information which “relates to” employment history. The importance of privacy in this area is further underlined by the specific prohibition of disclosure respecting labour relations matters in s. 21(1) and by the much more confined entitlement to information relating to the “position, functions or remuneration as an officer ... of a public body ...” in s. 20(4). [47] The information in question, in general, relates to the third party’s work-related conduct, was obtained as part of an investigation into that conduct by his employer and for the purposes of assessing his job fitness. In my view, the judge erred in finding that it was not information that relates to employment history within the meaning of s. 20(3)(d) of the Act. It follows that, in my respectful view, the parts of the following documents ordered disclosed by the judge should have been held to fall within this presumption: i. The Case Record (Booklet 1, Tab 3, Appendix I, Tab 9) ii. The Chronological Sequence of Events (Booklet 1, Tab B) iii. June 1, 1993 Memorandum (Booklet 1, Tab A) except the list of persons interviewed on page 2 and the first full paragraph on page 4 but excluding the last 5 sentences of that paragraph iv. Booklet 1 Appendix C (Tab 3), M (Tab 13), U (Tab 21) with the exception of the July 8, 1993 letter already released v. Booklet 2 Tab 23, Tabs 25 - 29 and 31 - 35 [48] The appellant argues that the judge also erred in failing to consider the evidence of the witness George Raine to the effect that an employee’s employment history would not necessarily be contained only in a personnel record within the Department but might also be held in records retained by various divisions within the Department. I do not agree with the appellant’s argument on this issue. While evidence relating to the practice of the employer is of some assistance in understanding how the Act functions at the practical level, it is, at best, of marginal utility in determining whether certain records constitute “employment history” within the meaning of the Act. The judge did not err in relation to this evidence. [49] Subsection 20(3)(g) deals with personal recommendations or evaluations, character references or personnel evaluations. The appellant submits that if the personal information fits any one of these three elements, it is presumed to be an unreasonable invasion of privacy. I agree. The appellant further submits that the terms “personal recommendations” and “evaluations, character references” are broad enough to include personal assessments or opinions as a result of an investigation. [50] This argument relates to the June 1, 1993 memorandum, which, as noted above, was drafted by the Administrator, forwarded to the Deputy Minister for the purpose of offering advice and a recommendation for action with respect to the allegations made by Ms. Dickie. The judge held that this did not fall within 20(3)(g) because it was not “something akin to an evaluation or performance evaluation.” In essence, the judge, supported by the respondent on appeal, interprets s. 20(3)(g) as being restricted to records recognized in the human resources context as something in the nature of evaluations, recommendations or references. [51] Each of the terms used in subsection 20(3)(g) appears to me to relate to types of documents which are common in the hiring and ongoing evaluation of employees. I agree with the judge, and the respondent, that this language does not contemplate disciplinary investigations or recommendations made as a result of them. c. Balancing: [52] The disputed information, generally, is personal information in relation to employment history. Disclosure of it is presumed to be an unreasonable invasion of the third party’s personal privacy under s. 20(3)(d) of the Act. The question of disclosure therefore turns on whether that presumption is rebutted having regard to the factors set out in s. 20(2). I note that s. 20(2) makes it clear that the presumption in s. 20(3) may be rebutted having regard to all the relevant circumstances. [53] The essence of the appellant’s argument on this issue is that the judge failed to do the required balancing. Instead, according to the appellant, the judge “...embarked on an inquiry of whether the document in question and its information was part of the investigative process and/or whether [Ms. Dickie] needed the information to fully understand the government’s response to her complaint.” [54] I do not accept the appellant’s broad generalization that the judge ignored the required balancing. In the discussion of the relevant legal principles, the judge recognized the need to consider the relevant factors as required by s. 20(2). With respect to the Case Record, he considered subsection 20(2)(f). With respect to the Memorandum dated June 1, 1993, the judge referred to factors under s. 20(2) as he did with respect to the other materials in Booklet 1. His conclusions with respect to most of the material in Booklet 2 flow from his analysis of the material in Booklet 1. I conclude that there is no failure on the part of the judge to engage in the required balancing. [55] However, the judge’s balancing of the factors was incorrect because of the error in failing to find the disputed information was personal information related to employment history. In the case of personal information related to employment history, the Act presumes that the balance is in favour of privacy because it presumes that disclosure of personal information relating to employment history is an unreasonable invasion of personal privacy. The judge held, in effect, that the citizen’s right to know trumps a third party employee’s right to privacy, saying that if an employee “... apparently or actually misuses the power vested in that employee as a consequence of employment, an aggrieved citizen has a right to be adequately advised of the nature and the results of an investigation into the allegation of wrongdoing..” I think the judge erred in reaching this conclusion when the explicit presumption of the Act is the opposite. The error was not in failing to do the balancing but in failing to start the balancing with the presumption in favour of privacy of this type of information. [56] The appellant submits that the judge further erred in finding that employees who made written statements as part of the investigation would not have expected the documents to remain confidential and in finding that the third party knew that a certain level of disclosure was inevitable. This argument relates to one of the factors set out in s. 20(2) which is to be considered in determining whether the disclosure of the personal information would constitute an unreasonable invasion of a third party’s personal privacy, namely 20(2)(f), that “personal information has been supplied in confidence.” With respect to the Appendix U material, the judge said: .....Insofar as some of these documents are marked “without prejudice” or “private and confidential”, the authors would mean to restrict the documents to the investigative process until its conclusion, but would have expected them to be released as required in that process. At this time, such a release would include a disclosure authorized by this Act. In my opinion, this collection of summaries constitutes an important part of the 1993 inquiry and should be released to Ms. Dickie, with the exception of hearsay credibility opinions in the memo of Mr. Payette dated April 13, 1993. I therefore direct that part of the third paragraph on the first page be deleted, the part commencing with the word “Before” in the third line to the end of the paragraph. (emphasis added) [57] With respect to the third party’s written response to the allegations prepared for the employer (Booklet 1, Tab 13), the judge said: .... The Department submits it should not be disclosed on the basis it is identifiable personal information as defined in s. 3(l) and cannot be disclosed under the Act pursuant to ss. 20(3)(d) and 20(2)(f) as it is personal information that was supplied in confidence, as designated by the words “confidential” in the top left hand corner of the document. This is also clearly a significant part of the Department’s investigative process, and thus should be released for reasons discussed above, principally that the third party knew he was involved in the investigative process and that a certain level of disclosure was inevitable. He presumably hoped for as limited disclosure as possible, but his designation of “confidential” cannot control the proper application of the Act. (emphasis added) [58] The appellant submits that there was no evidence or other factual basis to support these findings concerning the employees’ or third party’s expectations of confidentiality. The appellant further argues that the conclusion of the judge is inconsistent with the evidence of Mr. Raine to the effect that, when employees are being investigated by the employer with respect to issues arising out of their employment, it would be expected that any information given by an employee to the employer during the course of the investigation will be treated as confidential. [59] The judge interpreted s. 20(2)(f) to mean that, in order to be confidential, the provider of the information must believe that the information will never be revealed. With respect, I disagree. The fact that information may have to be revealed does not, of itself, make the information any less confidential. Medical records, for example, are both highly confidential and subject to disclosure in litigation where relevant. Information may be confidential without being privileged. Assuming that the employees were aware, as Ms. Dickie was told directly, that they would be required to testify at an arbitration, it does not follow, in my view, that this detracts from the confidential nature of the information provided. Moreover, as the judge noted elsewhere in his reasons, there are specific exemptions from disclosure for certain types of labour relations information of a third party in s. 21 of the Act. This shows that information may be exempted from disclosure even if it is required for a labour relations process such as arbitration. [60] I agree with the respondent that simply labeling documents “confidential” or “without prejudice” does not, of itself, make the documents confidential. However, it is widely understood that when an employee is required to provide information in relation to allegations of misconduct of a fellow employee, the information will be treated as confidential to the process for which it was elicited. The evidence of Mr. Raine seems to me to reflect the normal expectation in the workplace. As the judge observed, “... the employees participated in the expectation that the information they provided would be dealt with in some confidence...”. The fact that the information may have to be communicated for the purposes of and within that process does not make it any less confidential. With respect, the judge’s conclusion that this information was not communicated in confidence within the meaning of the Act was contrary to the evidence before him, inconsistent with the words of the Act and counter to the reasonable expectations of employees in the situation in which these employees found themselves. [61] The appellant takes no specific exception to the judge’s interpretation of the other factors in s. 20(2) to which he referred. It is submitted, however, that he ought to have, but did not, consider other relevant factors including the following: a. the sensitive nature of the information having been obtained as the result of an investigation into alleged sexual misconduct (not information routinely obtained in the normal course of events in regard to the job position); b. the confidentiality with which the employer treats information obtained as a result of an investigation; c. confidentiality as a critical element to present and future employer-employee relations and the impact on the conduct of investigations of allegations of employee misconduct; d. the principle of “reasonable expectation of privacy”. [62] While the judge did not specifically refer to each of these matters, it is clear from his reasons that he addressed his mind to how the balance should be struck between access and privacy in the context of this case. He gave 36 pages of reasons for his conclusions. I cannot accept the appellant’s argument that his omission of specific mention of some possibly relevant considerations, of itself, constitutes reversible error. [63] The appellant also submits that the judge erred in drawing a distinction between release of the information to the public and release of it to the respondent. The judge said: I would also note that Ms. Dickie is not seeking general publication of this information. She is seeking only that the information be released to her. In these circumstances, I do not feel that I must direct general or public release of the information. [64] The identity of the applicant significantly affects the analysis under the Act in this case and I think that is the point the judge was making. Fundamental to the question of disclosure in cases like this one is the definition of “third party” under the Act. The Act protects against the unreasonable invasion of the privacy of third parties. The person making the request for disclosure (in this case Ms. Dickie) is specifically excluded from the definition of third party: s. 3(m)(i). The analysis under the Act would be different if Ms. Dickie were a third party as she no doubt would be if she were not the applicant. For one thing, her own privacy rights would be implicated. I think that is all the judge was saying in the passage to which the appellant takes exception and that he was correct to note these different considerations. [65] To summarize my conclusions so far, the judge erred in failing to find that the disputed information was personal information within the meaning of the Act. He further erred in failing to find that, in general, the disputed information constituted employment history of the third party and that its disclosure was, therefore, presumed to be an unreasonable invasion of the third party’s personal privacy. He also erred, in my view, in concluding that the employees who made statements as part of the investigation, including the third party, did not communicate their information in confidence. It is necessary, therefore, to reconsider the balance struck by the judge in favour of disclosure. [66] In my opinion, the starting point for the balancing includes the presumption that disclosure of these records is an unreasonable infringement of the third party’s personal privacy and that the information, opinions and conclusions related by other employees during the investigation were provided in confidence. In addition, Ms. Dickie has the burden of proving that disclosure of personal information about a third party is not an unreasonable invasion of privacy: s. 45(2) and (3). [67] The question is whether this presumption of privacy is rebutted and the burden of Ms. Dickie under s. 45 is discharged having regard to all the relevant circumstances. In considering this question, the identity of the applicant and the material already disclosed are significant factors. [68] The allegations made against the third party by the applicant are, of course, known to the applicant because she made them; the substance of them is summarized in documents released by the Department. Allegations made to the employer of work place misconduct against an employee are personal information relating to employment history. Their disclosure is, therefore, presumed to be an unreasonable invasion of personal privacy. However, in several instances, the disputed documents, or parts of them, simply set out various employees’ recollections of what the applicant, Ms. Dickie, told them. It is difficult to see in these circumstances what privacy interest of the third party is served by refusing to disclose to Ms. Dickie documents, or parts of documents, which simply relate employees’ recollections of what she herself told them, particularly where the substance of those allegations are contained in other documents released by the Department. I conclude, therefore, that parts of documents in which employees relate what Ms. Dickie told them, while employment history of the third party, should be disclosed because, in the circumstances of this case, not disclosing this information to this applicant does not protect any privacy interest of the third party. [69] Another consideration in striking the balance is the provision in the Act respecting severance: 5 (2) The right of access to a record does not extend to information exempted from disclosure pursuant to this Act, but if that information can reasonably be severed from the record an applicant has the right of access to the remainder of the record. (emphasis added) [70] It is, therefore, necessary to consider whether information exempted from disclosure may be severed from a record that contains information which is not exempt from disclosure. It is agreed, for example, that the name of the third party should be deleted and the words “the third party” substituted throughout. [71] It is also relevant to consider that the decision taken in relation to the third party has also been released. The Deputy Minister’s letter to Ms. Dickie’s counsel dated February 3, 1994, advised her that no disciplinary action could be taken. There is no issue on this appeal as to the propriety of this disclosure. [72] Taking into account the information already disclosed and the information which I have concluded should be disclosed, the following types of information have been, or will be, released: < the steps followed in the investigations; < the identity of employees other than the third party, who were interviewed or provided statements; < what those employees reported Ms. Dickie had said to them; < the decision taken in relation to the third party. Thus, information has been or should be disclosed that permits both the process and its result to be scrutinized and ensures accountability for the decision taken. [73] The information remaining in dispute consists mainly of employee and management opinions and recommendations relating to the third party and the third party’s response to the allegations prepared at the direction of his employer. The disclosure of this information is presumed to be an unreasonable invasion of the third party’s personal privacy and was communicated in confidence. I do not think that the balance is tipped in favour of disclosure having regard to the purposes of the Act, the factors set out in s. 20(2) or by any other relevant considerations. [74] Ms. Dickie relies particularly on s. 20(2)(a) (disclosure desirable to subject activities to scrutiny) and s. 20(2)(c) (information relevant to a fair determination of the applicant’s rights). Considering the disclosure made or ordered, I do not think that any appreciable improvement in the level of scrutiny would be achieved by disclosing the remaining information and certainly not enough to rebut the presumption favouring privacy or to discharge the onus on Ms. Dickie under s. 45. As for s. 20(2)(c), there is some doubt as to whether it applies because there is no evidence that there is any process other than these proceedings in which Ms. Dickie’s rights are to be determined: see, e.g., Greater Vancouver Mental Health Services v. British Columbia, [1999] B.C.J. No. 198 (S.C.) at para. 85 ff. Assuming, without deciding that it does, the tangential relevance of the undisclosed material does not, in my opinion, outweigh the presumption of privacy created by the Act. [75] I will now set out how these conclusions apply to the documents, remembering that the name of the third party should be deleted and the words “the third party” substituted throughout and that all deletions ordered by the judge will remain deleted. (i) Case Record (Book 1, Tab B, Appendix I, Tab 9) [76] Pages 1 and 2: All of the material on these pages which was ordered disclosed by Kelly, J. is personal information relating to the third party’s employment history. Its disclosure is presumed to be an unreasonable invasion of the third party’s personal privacy and the presumption was not rebutted. It is, therefore, exempt from disclosure. [77] Page 3: The material ordered disclosed is personal information but it is not information concerning the third party. Accordingly, it is not exempt from disclosure and the judge was right to order it disclosed. [78] Pages 4 and 5: While this is personal information related to employment history, it is mostly information which Ms. Dickie herself supplied. There is no privacy interest served by refusing disclosure and, therefore these pages, except for the last paragraph on page 5, should be disclosed. (ii) Chronological Sequence of Events (Book 1, Tab B) [79] All of the material ordered disclosed in this document is personal information relating to the third party’s employment history and should not be disclosed except the following entries which should be disclosed. 1. October 30, 1985 2. November, 1985 3. January 6, 1986 4. March - April, 1986 5. November 6, 1986 6. October 27/87 7. The first sentence of the November 2, 1987 entry 8. November 6-14, 1987, the first sentence 9. November 19 - 20, 1987 10. March 3, 1993 11. March 9, 1993 12. April 7, 1993 13. April 14, 1993 14. April 26, 1993 15. June 23, 1993 [80] While the February, 1986, May, 1986, Fall, 1986, November 5, 1986 and November 1986-November, 1987 entries are employment history, the substance of the allegations has been released in the June 1, 1993 Memorandum (Booklet 1, Tab A) and it would be pointless to delete these entries from the Chronological Sequence of Events. [81] With those exceptions, the material ordered released by the judge is exempt from disclosure and should not be released. (iii) June 1, 1993 Memo (Booklet 1, Tab A) [82] With the following exceptions, all of the material ordered disclosed by the judge is personal information in relation to the third party’s employment history and should not be disclosed: 1. the names and positions listed in items 1-5 on page 2 (as mentioned earlier, the fifth name to be replaced by “the third party”) 2. the top 3 lines on page 3 3. Page 1, Page 2 up to the heading “Investigative Process”, the first paragraph under the heading “Investigative Process”; the first 3 sentences of the second paragraph under the heading Discussion on page 3, because the substance of the allegations has been released in other documentation 4. the first five sentences of the first full paragraph on page 4 as well as the second and third last sentences of that paragraph. [83] This excepted material should be disclosed. [84] Appendix B and D to this memorandum should not be disclosed. (iv) Other Material in Booklet 1, Tab B: [85] Appendix A1 (Tab 1) - While this is personal information relating to the employment history of the third party, the substance of the allegation is contained in other documentation released to Ms. Dickie and there is, accordingly, no privacy interest remaining to justify exempting it from disclosure. [86] Appendix C (Tab 3) is personal information related to the employment history of the third party and should not be disclosed. [87] Appendix M (Tab 13) is personal information related to the employment history of the third party and should not be disclosed. [88] Appendix U (Tab 21) - The first document (April 13, 1993) is the third party’s response and is personal information in relation to employment history and should not be disclosed. [89] The second document (April 13, 1993) is a memo from an employee about the allegations. While this document is personal information in relation to the third party’s employment history, the substance of the allegations repeated in it have been released in other documentation. There is, accordingly, no privacy interest of the third party served by declining disclosure. However, the document also contains opinions of employees in relation to the allegations and those are personal information in relation to employment history of the third party. The judge in paragraph 2(i) of his order deleted this material and was correct to do so. [90] The third document (April 15, 1993) is similar to the second and for the same reasons should be released except for the following: ­ the 5th of the “bullets” on the top half of the page ­ the last two sentences of the second last paragraph ­ the last paragraph. [91] This excepted material should not be disclosed. [92] The fourth document (June 21, 1993) is similar to the second and third and, for the same reasons, should be disclosed except for the fourth paragraph which should be deleted. [93] The fifth and sixth documents (June 25, 1993 and June 29, 1993) are similar to the second, third and fourth and for the same reasons should be disclosed, except for the last sentence on page 1 of the June 29, 1993 letter. [94] The seventh document (July 8, 1993) has already been disclosed. (v) Booklet 2: [95] Tabs 22 and 30 were ordered deleted by the judge. [96] Tab 23 - This document is personal information in relation to employment history and contains opinions about the third party’s employment-related conduct. It should not be disclosed. [97] Tab 25 - (I will refer to the typewritten version): Paragraphs 1-4 and 6-10 should be released. Paragraph 5, the last sentence of paragraph 11 and paragraphs 12-14 are personal information in relation to the third party’s employment history and should not be released. [98] Tab 26 (typewritten version): Following the same reasoning, points 2, 9, 10, 11 should be deleted and the rest disclosed. [99] Tab 27 (typewritten version): Following the same reasoning, points 9, 10, 11 and 12 should be deleted and the rest disclosed. [100] Tab 28: For the same reasons, points 1 and 6 should be deleted and the rest disclosed. [101] Tab 29 should be released as it contains no personal information in relation to the third party. [102] Tab 31: For the reasons given above, points 11 and 15 should be deleted and the rest disclosed. [103] Tab 32 should be released except for point 4 as it contains no personal information with respect to the third party apart from the allegation already released. [104] Tab 33: Points 2, 5, 7, 8, 10, 11, 12, 13 and 14 should be deleted and the rest disclosed. [105] Tab 34: This document is largely personal information in relation to employment history. However, to the extent it repeats allegations already disclosed, no privacy interest is served by declining disclosure of them. The document should be released except the following entries of the document (referring to the typewritten copy) which should not be released: February 16, 1993 February 17, 1993 March 8, 1993. [106] Tab 35: For the same reasons, this document should be released except for the following entries which should be deleted: November 18-January 22, 1985 October, 1987 - the fourth and eighth points. VII. Disposition I would allow the appeal and vary the order of Kelly, J. in accordance with my reasons. Given the intricacy of the matter, I would direct counsel for the appellant to prepare and submit, within 10 days, a draft order, approved as to form by counsel for the respondent. As success is divided, I would not alter Kelly, J.’s order as to costs before him. I would make no order as to costs of the appeal. Cromwell, J.A. Concurred in: Hart, J.A. Roscoe, J.A.