Newfoundland and Labrador v. Newfoundland and Labrador Teachers' Association

IN THE COURT OF APPEAL OF NEWFOUNDLAND AND LABRADOR Citation: Newfoundland and Labrador v. Newfoundland and Labrador Teachers' Association, 2018 NLCA 54 Date: September 17, 2018 Docket Number: 201701H0010 BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND AND LABRADOR APPELLANT AND: THE NEWFOUNDLAND AND LABRADOR TEACHERS' ASSOCIATION, as Representative of its members who are Third Parties to a Request as defined under the Access to Information and Protection of Privacy Act, 2015 FIRST RESPONDENT AND: SCHOOL BOARD FOR NEWFOUNDLAND AND LABRADOR, ENGLISH SCHOOL DISTRICT SECOND RESPONDENT AND: THE INFORMATION AND PRIVACY COMMISSIONER OF NEWFOUNDLAND AND LABRADOR THIRD RESPONDENT AND: REGISTERED NURSES’ UNION OF NEWFOUNDLAND AND LABRADOR FOURTH RESPONDENT Page 2 AND: CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 1560 FIFTH RESPONDENT AND: NEWFOUNDLAND AND LABRADOR ASSOCIATION OF PUBLIC AND PRIVATE EMPLOYEES SIXTH RESPONDENT AND: EASTERN REGIONAL INTEGRATED HEALTH AUTHORITY SEVENTH RESPONDENT AND: CENTRAL REGIONAL INTEGRATED HEALTH AUTHORITY EIGHTH RESPONDENT AND: WESTERN REGIONAL INTEGRATED HEALTH AUTHORITY NINTH RESPONDENT AND: LABRADOR-GRENFELL REGIONAL INTEGRATED HEALTH AUTHORITY TENTH RESPONDENT Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador General Division 201601G2452 (2016 NLTD(G) 211) Appeal Heard: February 12 and February 13, 2018 Judgment Rendered: September 17, 2018 Page 3 Reasons for Judgment by White J.A. Concurred in by Hoegg J.A. Dissenting Reasons by Welsh J.A. Counsel for the Appellant: David Rodgers Counsel for the First Respondent: Thomas Williams Q.C. and Kyle Rees Counsel for the Second Respondent: Ian Wallace Q.C. Counsel for the Third Respondent: Andrew A. Fitzgerald Counsel for the Fourth Respondent: Tracey Trahey Counsel for the Fifth Respondent: Susan Coen Counsel for the Sixth Respondent: Paula Schumph Counsel for the Seventh, Eighth, Ninth and Tenth Respondents: Twila Reid White J.A.: [1] The Access to Information and Protection of Privacy Act requires public bodies to disclose employees’ position, functions and salary, if requested. This case is about whether the Act also requires public bodies to disclose employees’ names. BACKGROUND [2] The case began on March 4, 2016, when a local journalist requested the “name, job title and corresponding taxable income for the 2015 tax year for all English School District employees earning more than $100,000”. After evaluating the request, the English School District notified the affected employees that, subject to any appeal, it would disclose the information under the Act. [3] The Newfoundland and Labrador Teachers’ Association (NLTA) appealed the decision. It argued that the English School District had not given sufficient reasons for its decision and that the Act, properly interpreted, did not authorize disclosure. It also filed affidavits from teachers and principals indicating that disclosure could lead to acrimony between teachers and parents, causing undue harm and undermining the education system. [4] The appellate judge in Supreme Court allowed the appeal. The Province appealed to this Court. Page 4 ISSUES [5] The Province states two issues: 1. What is the standard of review? 2. Should the decision of the appellate judge be upheld? STANDARD OF REVIEW [6] When a decision to disclose information under the Act is appealed to the Supreme Court, it is heard as a new matter and not using an administrative law standard of review: see s. 59(1). A further appeal to the Court of Appeal is governed by the ordinary appellate standards of review, as explained in Corporate Express Canada Inc. v. Memorial University of Newfoundland, 2015 NLCA 52, 371 Nfld. & P.E.I.R. 137, where Hoegg J.A. said, [16] This appeal raises issues of statutory interpretation and application of statutory law to found facts. Matters of statutory interpretation are questions of law reviewable on a standard of correctness, as was recently confirmed by the Supreme Court in Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 (see also Trimart Investments Limited v. Gander (Town), 2015 NLCA 32). Judicial determinations resulting from the application of a legal standard to a set of facts raise questions of mixed fact and law. Questions of mixed fact and law are reviewable on the deferential standard of palpable and overriding error unless “it is clear that the … judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law” (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 37). ANALYSIS Statutory Scheme: Access to Personal Information [7] In general, people have the right to access records held by public bodies: see s. 7(1). When a record is requested, it will be disclosed unless it falls into some particular exception. The exception the NLTA relies on is found in s. 40(1): The head of a public body shall refuse to disclose personal information to an applicant where the disclosure would be an unreasonable invasion of a third party's personal privacy. Page 5 [8] The scope of this exception is outlined in a few other sections. First, “personal information” is defined in s. 2(u): “personal information” means recorded information about an identifiable individual, including … (i) the individual’s name, address or telephone number, [and] … (vii) information about the individual’s educational, financial, criminal or employment status or history … . [9] The teachers’ names are personal information as set out in s. 2(u)(i). So are the position title and salary under s. 2(u)(vii), if they are released together with the name or if the position title on its own is sufficient to identify the individual. [10] Second, s. 40(4) sets out some situations where disclosure is presumptively unreasonable, one of which applies: A disclosure of personal information is presumed to be an unreasonable invasion of a third party’s personal privacy where … (g) the personal information consists of the third party’s name where (i) it appears with other personal information about the third party … . [11] Third, the factors that determine whether this presumption is rebutted are outlined in s. 40(5). Here are the most relevant portions: In determining under subsections (1) and (4) 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 province or a public body to public scrutiny; … Page 6 (e) the third party will be exposed unfairly to financial or other harm; … (h) the disclosure may unfairly damage the reputation of a person referred to in the record requested by the applicant … . [12] The NLTA argues that the names are personal information under s. 2(u)(i), that their disclosure together with position and salary engages the presumption in s. 40(4), and that the presumption cannot be rebutted under s. 40(5). [13] The Province responds that the information must be disclosed under s. 40(2)(f): A disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy where … (f) the information is about a 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 …. [14] The appellate judge concluded that the information did not fall under s. 40(2)(f) because an employee’s name is not “information about a third party’s position”. The correctness of that conclusion is the central issue on this appeal. But before coming to it I will review the principles of statutory interpretation. General Principles of Statutory Interpretation [15] The appellate judge rightly pointed to Archean Resources Ltd. v. Newfoundland (Minister of Finance), 2002 NFCA 43, 215 Nfld. & P.E.I.R. 124 as the leading case in this province on interpreting provincial legislation. At paragraph 22 Green J.A. sets out the approach to be followed: [22] Instead of mandating some fictionalized search for a collective “legislative intention”, s. 16 [of the Interpretation Act] directs the court to consider every provision “remedial” and to interpret it so that it “best” ensures the attainment of its “objects” according to its “true” meaning. This requires a consideration, as an integral part of the interpretive exercise, of the problem or “mischief” to which the legislature directed its legislative act as a remedy and then the drawing of an inference, based on the language of the whole enactment and the court’s general knowledge of the state of the pre-existing law and any information as to the broad social context in which the Page 7 legislative act occurred, as to what, broadly speaking, the object or objects of the legislative act must have been. The end result is to arrive at a “true” meaning. … Does s. 40(2)(f) apply? [16] Statutory Language. The name of the third party who occupies a position is “information about the third party’s position”. [17] This conclusion can be reached by considering the ordinary use of language. If an ordinary person is asked for information about the position of Premier of Newfoundland and Labrador, the identity of the current Premier is likely to come to mind. [18] The same conclusion can be supported by a more detailed analysis of the words. The words “information about” indicate that s. 40(2)(f) is not confined to the third party’s position: it embraces a range of information related to or about the position. [19] In the phrase “the third party’s position”, the words “the third party’s” could on their face operate simply to identify which position may be disclosed. But that would be redundant: every position can be disclosed. Instead, they should be seen in the context of s. 40(2)(f), whose only function is to allow the disclosure of personal information. The words “the third party’s” emphasize that the information to be disclosed is not just impersonal facts about the position itself, but personal information about the particular individual who occupies it. [20] There are interesting line-drawing questions about how much personal information a provision like s. 40(2)(f) is meant to include: see e.g. Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police), 2003 SCC 8, [2003] 1 S.C.R. 66. But the person’s name is the starting place for personal information, the most public and least intimate identifying fact. [21] The legislature does not need to use the word “name” for the third party’s name to be “information about the third party’s position”. It is always possible to call for clearer language. The legislature could have specifically included the third party’s name—but they could also have specifically excluded it. They did neither, and the Court must now interpret the language that exists. [22] The Remainder of s. 40(2). S. 40(2)(f) does not exist in a vacuum. Many other paragraphs of s. 40(2) protect public access to information about public spending: Page 8 A disclosure of personal information is not an unreasonable invasion of a third party's personal privacy where … (g) the disclosure reveals financial and other details of a contract to supply goods or services to a public body; (h) the disclosure reveals the opinions or views of a third party given in the course of performing services for a public body, except where they are given in respect of another individual; ... (j) the information is about expenses incurred by a third party while travelling at the expense of a public body; (k) the disclosure reveals details of a licence, permit or a similar discretionary benefit granted to a third party by a public body, not including personal information supplied in support of the application for the benefit; (l) the disclosure reveals details of a discretionary benefit of a financial nature granted to a third party by a public body, not including (i) personal information that is supplied in support of the application for the benefit, or (ii) personal information that relates to eligibility for income and employment support under the Income and Employment Support Act or to the determination of income or employment support levels. [23] These provisions are located in the same subsection as s. 40(2)(f). They are concerned with the same topic: transparency about the personal information of people receiving discretionary public funds and benefits. They are similarly worded, and none of them specifically allow disclosure of the name of the third party who is receiving public funds. If s. 40(2)(f) does not allow disclosure of third parties’ names, then neither do these other provisions. [24] But it is reasonable to expect that the legislature intended that public bodies would have to disclose the names of persons who receive large government contracts (s. 40(2)(g)) or persons who receive discretionary financial benefits (s. 40(2)(h)). Similarly, when a public body engages an external report, it must be presumed that it can disclose the name of the third party who produced it (s. 40(2)(h). Page 9 [25] Existing Practice. The names of government employees have historically been publicly disclosed. In fact, as of the date of this decision, the government offers a phone book with the name and contact information of many of its employees: see Newfoundland and Labrador, “Telephone Directory” available at <http://telephonedirectory.gov.nl.ca/>. [26] Perhaps the Act is inconsistent with this longstanding practice. But nothing in the statutory language suggests so. (Neither does anything in the analysis below.) [27] Why Disclose Names? The appellate judge concluded at paragraphs 134 and 135 that the public interest in disclosing the names of public employees was outweighed by the employees’ privacy interests. She saw little public interest in disclosing the names of individual employees. [28] I disagree. The public has a legitimate and significant interest in the identities of the people who receive public money. [29] The legislative purpose is stated in s. 3(1): The purpose of this Act is to facilitate democracy through (a) ensuring that citizens have the information required to participate meaningfully in the democratic process; (b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable; and (c) protecting the privacy of individuals with respect to personal information about themselves held and used by public bodies. [Underlining added.] [30] Disclosing names promotes both meaningful participation in the democratic process (s. 3(1)(a)) and accountability (s. 3(1)(b)). [31] People have a right to inquire whether politicians or senior civil servants are hiring or promoting family members or friends. People have a right to inquire whether campaign donors or volunteers are proliferating on the payroll. Names are necessary to satisfy these inquiries. Page 10 [32] Whether a salary is fair depends on who is being paid. A government solicitor is paid $100,000—is this a high salary for a junior lawyer or a low salary for a senior one? [33] The values at stake go beyond value for money. The political neutrality of the civil service is a constitutional principle, an essential part of the modern Westminster system of responsible government. It is sufficiently important to justify depriving many public servants of the right to run for political office or speak on political issues: see O.P.S.E.U. v. Ontario (Attorney General), [1987] 2 S.C.R. 2, 41 D.L.R. (4th) 1. And yet for the public to meaningfully assess whether the civil service remains neutral, they need access to the names of civil servants and, their specific compensation. [34] Another important value at stake is employment equity. The public has a legitimate interest in knowing whether historically disadvantaged groups are fairly represented in the civil service. Individuals who lose job competitions have a legitimate interest in knowing who won. Here, again, the identities of public employees are relevant. [35] Yet another relevant constitutional value in play is pay equity: see Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381. Individual public employees should be able to determine whether they are fairly paid relative to their counterparts. To do this it is not enough to know what positions have what salaries. An individual employee may not know whether a higher-paying position in another department with a comparable title is occupied by someone more or less senior, more or less qualified. How can employees assess whether they are fairly treated compared to their counterparts, without knowing who their counterparts are? [36] The same applies on a public-accountability level. Researchers, advocates, and voters should be able to collect the information they need to assess pay equity. They need identities and not just position titles. [37] The applications judge significantly underestimated the legitimate public interests in knowing public employees’ names. [38] Names and Privacy: Releasing the names and salaries of public employees will lead to a loss of privacy. Giving effect to s. 40(2)(f) will enable some harmful gossip, and it may lead to some of the harms outlined in the affidavits before the court. Page 11 [39] But even on the narrowest theory of s. 40(2)(f) it allows people to snoop into their friends’ or neighbours’ or coworkers’ information. Anyone can anonymously request the position and salary of any named individual. There is no dispute about that. [40] So a restrictive interpretation of s. 40(2)(f) can only serve to discourage gossip from people who are motivated to peruse sunshine lists looking for their acquaintances, but not motivated enough to file cheap anonymous requests to find the information they want. The privacy interests at stake are real, but they are easy to overstate—and not comparable to the significant public interest in disclosure. [41] Hansard and the Wells Report: The balancing of interests above is not merely speculative. There is fairly strong evidence that the appropriate balance between public interest and privacy was considered in the drafting of s. 40(2)(f), with the conclusion that the balance favoured disclosure. [42] Unlike most modern legislation, the Act was not prepared by the executive branch. It was drafted by an external committee consisting of Clyde K. Wells, Doug Letto, and Jennifer Stoddart, who left detailed reasons for why various choices were made: Report of the 2014 Statutory Review of the Access to Information Act, vol. 2 (St. John’s, NL: Queen’s Printer, 2015), available online: <http://www.ope.gov.nl.ca/publications/pdf/ATIPPA_Report_Vol2.pdf> (the “Wells Report”). [43] The Act is the bill suggested in the Wells Report with minor amendments. It passed unanimously. Every member who spoke about the Wells Report did so favourably. See Newfoundland and Labrador, House of Assembly, House of Assembly Proceedings, vol. XLVII no. 3, (April 23, 2015) at 97–245; vol. XLVII no. 15 (May 14, 2015), at 683–695. The Wells Report is as close to an authoritative source on legislative intention as can be imagined. [44] The Wells Report analyzes, at pp. 190–191, the Ontario Public Sector Salary Disclosure Act, 1996, SO 1996, c. 1, Sch. A, which provides for an annual disclosure of the name, salary, and benefits of any Ontario employee making a salary of $100,000 or more: s. 3. It then analyzes the stakes: In an age where the values of equality and democracy are seen increasingly as being central in our society, there is diminishing justification for holding confidential the payment schemes for employees and officials who are paid from the public purse. Unfortunately, this does result in less privacy for those public officials and employees. However, the deleterious effect of disclosing salaries or pay scales has yet to be Page 12 shown. Some, such as judges and elected officials, have been subject to such a regime for years. [45] In addition to Ontario’s Sunshine List, the Wells Report compares the regime it endorses to the disclosure regime for judges and elected officials. Like Ontario’s Sunshine List, both regimes reveal employees’ names. [46] Before suggesting the current wording of s. 40(2)(f), the Wells Report concludes: The privacy of public employees needs to be balanced against the public’s right to know how their tax dollars are spent. Contemporary values of transparency and accountability for public funds tip the balance in favour of disclosure. [47] The Wells Report considered several models, all of which required disclosure of names. It reviewed the public interest and the privacy consequences, concluded that the public’s right to know was more important, and suggested the current wording. It expressed no reservations about disclosing names. I cannot read the Wells Report as supporting any conclusion apart from that the Act was meant to allow the disclosure of employees’ names. [48] Conclusion on s. 40(2)(f): I have concluded that s. 40(2)(f) is meant to ensure that members of the public can know who is on the public payroll, what their duties are, and how much they are being paid. If s. 40(2)(f) applies, it is final [49] Some parties suggested, both below and before this Court, that even if the teachers’ names are included in s. 40(2)(f) the Court should consider the factors in s. 40(5) and decide whether releasing the names would be an unreasonable invasion of privacy. [50] The appellate judge rejected this conclusion, holding at para. 31 that if s. 40(2)(f) applies, “the case is governed by its operation without regard to section 40(5).” I agree. If s. 40(2)(f) applies, the information must be disclosed, and that is final. Is the Appeal Moot? [51] I agree with my colleague that the appeal is not moot. My analysis would have general application regardless of the amount of income. Page 13 CONCLUSION [52] I would set aside the decision under appeal and restore the decision of the English School Board. The publication ban below must also be set aside. No costs were awarded by the appellate judge and the appellant does not seek costs on appeal. Accordingly, I would make no order as to costs. ____________________________________ C. W. White J.A. I Concur: ___________________________________ L. R. Hoegg J.A. Dissenting Reasons by Welsh J.A.: [53] At issue in this appeal is whether a school board is authorized or required to release for publication by a newspaper the names, positions and annual salaries of employees earning more than $100,000, pursuant to a request by the newspaper under the Access to Information and Protection of Privacy Act, 2015, SNL 2015, c. A-1.2. [54] The School Board for Newfoundland and Labrador, English School District (the “Board”), took the position that the information, including the names of employees, should be released. Some individual employees and the Teachers’ Association of Newfoundland and Labrador, representing third parties, objected to release of the names. On appeal to the Supreme Court of Newfoundland and Labrador, the judge concluded that the legislation did not authorize release of the names of the employees. Her Majesty the Queen in Right of Newfoundland and Labrador appeals that decision. [55] There is also a question of whether the appeal is moot given the enactment of the Public Sector Compensation Transparency Act, SNL 2016, c. P-41.02. Page 14 BACKGROUND [56] It is useful to begin with a summary of the parties. In the Supreme Court, the applicant was the Teachers’ Association and the Board was the respondent. The Supreme Court judge (the “appellate judge”) granted intervenor status to and heard submissions from Her Majesty the Queen in Right of Newfoundland and Labrador (the “Province”), the Information and Privacy Commissioner (the “Commissioner”), three unions, and four health authorities. The unions and health authorities have an interest since the result in this case may have general application which would affect the rights of their members and employees. Indeed, proceedings brought by those parties were adjourned pending resolution of this case. In granting the applications by the intervenors, the appellate judge permitted them to file affidavits, briefs or other materials as if they were parties to the proceeding. This is consistent with section 56(3) of the Access to Information and Protection of Privacy Act, 2015 (the “Access to Information Act” or the “Act”) and rule 7.05 of the Rules of the Supreme Court, 1986. [57] By contrast, the Board did not participate in the proceeding in the court appealed from. The appellate judge was critical of the Board for this failure given that the Board was the named respondent and that, under the legislation, being the public body responsible for making the decision, it bore the onus of establishing that the information was properly disclosed. Although the Board participated in the appeal in this Court, the appeal was, in fact, brought by the Province. [58] As to the substance of the appeal, a local newspaper, the Telegram, made the following written request to the Board for disclosure of information pursuant to the Access to Information Act: The name, job title and corresponding total taxable income for the 2015 tax year for all English School District employees earning more than $100,000. The intention of the Telegram was to publish the information in the newspaper. [59] The Board gave notice of the Telegram’s request to the affected employees to give them the opportunity to object to the release of their information. The notice stated: The District has provided the following information to the [Telegram] in response to the Request: Page 15 Position with the District and taxable income for 2015 for all district employees earning more than $100,000. The Director of Education for the District has determined further disclosure of information is required by the Act and accordingly is assessing disclosure of the following information in response to the request: Name, position with the district and taxable income for 2015 for all district employees earning more than $100,000. As per section 19(5) of the Act (see attached), the District is providing you with written Notice that this further information is intended to be disclosed to the [Telegram] on the basis that it is not an unreasonable invasion of privacy. … The Newfoundland and Labrador Teachers’ Association objected only to the release of the names of the affected employees. [60] Ultimately, without giving reasons for its decision, the Board advised the Telegram that the information would be released. The appellate judge identified errors in the manner in which the Board provided its decision (2016 NLTD(G) 211): [12] In an oral decision on November 15th, 2016, I concluded that while the [Board] had failed in its obligation to provide reasons and cite the provisions of the Act upon which its conclusion had been based (as required under section 19(5)(a) of the [Access to Information Act]), since the appeal to the trial division was to be treated “as a new matter”, the lack of reasons could not delay or bar the appeal. In fact, I concluded that the lack of reasons from the [Board] may constitute a failure to act under section 59 of the [Act] which is reviewable in and of itself. This is a clear reminder to public bodies regarding the responsibility to provide reasons when responding to an application under the Access to Information Act. [61] The appellate judge summarized her conclusions: [136] The teachers in question are “identifiable individuals” [under the Access to Information Act] because the [Board] had recorded information respecting their positions and income. [137] For these identifiable individuals, their names would be personal information, the release of which is presumptively an invasion of their personal privacy under subsections 40(4)(d) and (g). [138] It has not been established that section 40(2)(f) deems the release of names for such identifiable individuals as “not an unreasonable invasion of privacy”. Page 16 [139] Since subsections of section 40(4) apply and section 40(2)(f) does not apply, consideration of the section 40(5) factors is required. Consideration of these factors does not rebut the presumption in favour of protection of privacy of the third parties. [140] The [Board] has not met the onus of proving that its decision to release the names (together with positions and incomes) of the identifiable individuals is required under the [Access to Information Act]. [62] By way of explanation the appellate judge wrote: [134] The [Access to Information Act] must therefore be interpreted consistent with its stated purposes (section 3(1)) and the enumerated means of achieving them (section 3(2)). Giving the [Telegram] a list of the public sector positions and salaries over $100,000 increases transparency in government and public bodies consistent with section 3(1)(b). Withholding the individual names of those employees protects their individual privacy with respect to personal information about themselves (characteristics) held by the [Board] consistent with section 3(1)(c). The [Telegram] has successfully used its right to access the records under section 3(2)(a) while the [Teachers’ Association’s members’] right to be protected from unreasonable invasion of privacy, is honoured (section 3(2)(c)(ii)). [135] In this respect I believe that in the absence of proof that the public interest in disclosure (of the names) outweighs the third parties’ rights of privacy (section 3(2)(d)), the interpretation I have given to the impugned sections achieves a result that is fair to both the [Telegram] (and the public at large) and the [Teachers’ Association’s] members, and is in harmony with the social and legislative context including constitutional values (particularly the Charter section 7). ISSUES [63] At issue is whether the appeal is moot, and, if not, whether the appellate judge erred in concluding that disclosure of the names of all employees of the Board who earn more than $100,000 annually is an unreasonable invasion of their personal privacy. ANALYSIS The Legislation [64] The purpose of the Access to Information and Protection of Privacy Act is set out in section 3(1): The purpose of this Act is to facilitate democracy through Page 17 (a) ensuring that citizens have the information required to participate meaningfully in the democratic process; (b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable; and (c) protecting the privacy of individuals with respect to personal information about themselves held and used by public bodies. [65] “Personal information” is defined in section 2(u) to mean: 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, … (vii) information about the individual’s educational, financial, criminal or employment status or history, … (Emphasis added.) [66] Section 40(1) of the Act precludes release of personal information that would be an unreasonable invasion of privacy: The head of a public body shall refuse to disclose personal information to an applicant where the disclosure would be an unreasonable invasion of a third party’s personal privacy. [67] Section 40(2)(f) specifies a circumstance where disclosure of information is not an unreasonable invasion of personal privacy: A disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy where … Page 18 (f) the information is about a third party’s position, functions or remuneration as an officer, employee or member of a public body …; [68] Section 40(4)(c) and (g) specify instances where disclosure of information is presumed to be an unreasonable invasion of personal privacy: A disclosure of personal information is presumed to be an unreasonable invasion of a third party’s personal privacy where … (c) the personal information relates to employment or educational history; … (g) the personal information consists of the third party’s name where (i) it appears with other personal information about the third party, or (ii) the disclosure of the name itself would reveal personal information about the third party; … As with any presumption at law, the presumption set out in this section may be rebutted. [69] Section 40(5) sets out factors to be considered in determining whether disclosure of information constitutes an invasion of personal privacy: In determining under subsections (1) and (4) 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 province or a public body to public scrutiny; … (e) the third party will be exposed unfairly to financial or other harm; (f) the personal information has been supplied in confidence; … Page 19 [70] Pursuant to section 43, the Board, as the public body, has the burden of proving that disclosure of the employees’ personal information would not be contrary to the Act or Regulations. [71] Section 59(1) of the Act provides for an appeal of the Board’s decision to the Supreme Court “as a new matter” for which affidavit evidence may be received. The burden of proof set out in section 43 applies to that appeal. [72] Section 56(3) is directed to the role of the Province and others in an appeal: The minister responsible for this Act, the commissioner, the applicant or a third party may intervene as a party to an appeal under this Division by filing a notice to that effect with the Trial Division. Is the Appeal Moot? [73] The Public Sector Compensation Transparency Act (the “Transparency Act”), assented to December 14, 2016, specifies disclosure requirements for public bodies such as the Board. Section 4 provides: Before July 1 of each year the chief executive officer shall disclose to the minister and the public, in the form and manner determined by the minister, the following information with respect to each employee of the public body whose total compensation during the previous year was greater than the threshold: (a) the name of the employee; (b) the title of the position the employee held on December 31 of the previous year …; and (c) the amount of total compensation paid to the employee. At the time of this appeal, the threshold was $100,000 (Public Sector Compensation Transparency Regulations, NLR 81/16). [74] Section 4 of the Transparency Act is specific regarding the release of an employee’s name. An exemption from release may be permitted only where “disclosure of the information could reasonably be expected to threaten the safety or mental or physical health of the employee” (sections 7 and 8 of the Act). By contrast, as discussed in the appellate judge’s decision, and below, the language in the Access to Information Act is not specific and, as a result, is less clear regarding disclosure of an employee’s name pursuant to an application Page 20 under the Act. This necessitates statutory interpretation of relevant provisions, especially sections 3 and 40 of the Act. [75] It may be argued that the subsequent, specific legislation adopted in the Transparency Act renders consideration of this appeal moot on the basis that the issues under the Access to Information Act have become academic (Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at page 353). [76] On the other hand, it was submitted in response that there is a difference between the two statutes such that there remains a live controversy that may affect the rights of the participants. Under the Transparency Act, the Board is required, before July 1 each year, to disclose to the minister and to the public the information in section 4. However, that information is required to be disclosed only once per year. By contrast, the Access to Information Act permits an application seeking disclosure under that legislation at any time. [77] Further, the Transparency Act specifies a threshold employment compensation of $100,000 to engage release of the information. No similar limitation is found in the Access to Information Act. While the request by the Telegram is restricted to “employees earning more than $100,000” annually, the analysis would have general application to any similar request for information regarding the release of employees’ names along with their job titles and annual salary regardless of the amount of the salary. [78] Accordingly, I accept that the Transparency Act does not have the effect of rendering this appeal moot. Interpretation of Section 40 of the Access to Information Act Purpose of the Access to Information Act [79] I begin with the stated purpose in section 3 of the Access to Information Act, which is three-fold, and which I repeat for ease of reference: (a) ensuring that citizens have the information required to participate meaningfully in the democratic process; (b) increasing transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable; and (c) protecting the privacy of individuals with respect to personal information about themselves held and used by public bodies. Page 21 [80] The question is how these purposes are advanced by the release of the names of all employees earning more than $100,000 annually. I begin with some general comments regarding the stated purposes before turning to the interpretation of section 40 of the Act. To summarize briefly, first, it is difficult to understand how knowing the names of all teachers and other Board employees who earn more than $100,000 annually is necessary to permit citizens to participate meaningfully in the democratic process. Second, it is difficult to understand how disclosure of the information that named teachers or Board employees earn a salary of more than $100,000 annually will address the objective that “elected officials, officers and employees of public bodies remain accountable”. Third, it is difficult to understand how disclosing the names of teachers or Board employees earning a salary of more than $100,000 annually is consistent with protecting the privacy of those individual teachers and employees. [81] If the objective is to provide the public with statistical information regarding the expenditure of public funds for teachers and other Board employees, this can be done without naming individual teachers and employees who earn more than a specified salary. That is, disclosing the number of employees in each position earning an annual salary of more than $100,000, without names, would hold the Board accountable for how it is spending its funds. If accountability of the Board regarding, for example, employment equity is an issue, information could be provided stating the number of teachers and other employees earning specified salaries with sub-categories regarding gender, race or other identifying characteristics if that would be pertinent information. Providing the names of teachers or employees earning an annual salary of more than $100,000 would provide little, if any, information useful in assessing the Board’s accountability regarding the expenditure of public funds. Rather, statistical information, for which the names of individuals would be irrelevant, would achieve that purpose. [82] Further, if there is some reason for disclosing the salary of individual, named teachers and employees, it is unclear why a threshold salary of $100,000 is relevant. Are those earning $90,000 less accountable? Is the Board less accountable for those earning $80,000 annually? Indeed, the March 2015 report submitted by the committee conducting the statutory review of the existing Access to Information Act recommended: The Committee concludes it is unfair to single out employees at any particular income level, and recommends that salaries and benefits of all employees of public bodies be subject to disclosure. Page 22 [83] Keeping the purposes stated in section 3 in mind, I turn to the interpretation of section 40 of the Act. I would add here that the analysis is directed to the request made by the Telegram and similar requests. Other types of requests, including where a name may be involved, must be assessed on their merits in light of the purpose, requirements and language of the Act. Subsections (3) and (4) of Section 40 of the Access to Information Act [84] Under section 40(1) of the Act, the Board “shall refuse” to disclose personal information where “disclosure would be an unreasonable invasion” of the individual’s personal privacy. An individual’s name falls within the definition of “personal information” under section 2(u). [85] Section 40(2)(f) specifies that disclosure of personal information “is not an unreasonable invasion” of personal privacy where the information “is about a third party’s position, functions or remuneration as an officer, employee or member of a public body” (underlining added). Name is not mentioned and no distinction is drawn among officers, employees and members of the Board. The provision refers to information “about” an individual’s position or remuneration, which would not, without more, necessarily include the individual’s name. Insofar as this results in ambiguity, the remaining provisions provide interpretive assistance. [86] Section 40(4) enumerates circumstances where disclosure of personal information is presumed to be an unreasonable invasion of personal privacy. In contrast to section 40(2), section 40(4)(g) refers specifically to the individual’s name. Under section 40(4)(g), disclosure of the name is presumed to be an unreasonable invasion of privacy where it appears with other personal information or the disclosure would reveal personal information about the individual. Included in the definition of personal information is “information about the individual’s educational, financial, criminal or employment status or history” (section 2(u)(vii)). It follows that disclosure of a teacher’s or other employee’s name together with that person’s employment status, including remuneration, would fall within the language of section 40(4) and, on that basis, be presumed to be an unreasonable invasion of privacy. That interpretation of the language of sections 40(4) and 2(u), is further supported when those provisions are read together with section 40(2), which is ambiguous regarding the disclosure of names. This is the conclusion reached by the appellate judge. [87] As further support for that conclusion, the judge reviewed judicial decisions from other jurisdictions. I agree with her assessment and conclusion Page 23 regarding Ministry of Finance (BC Public Service Agency), 2014 BCIPC 44, adjudicator’s decision: [76] Both the facts and the legislative basis upon which Adjudicator Flanagan made his decision in Order F14-41 are significantly different than the facts before me and the legislative regime in Newfoundland and Labrador. Order F14-41 does not assist me in my interpretation of subsections 40(4)(d) or (g). [88] Regarding Dickie v. Nova Scotia (Minister of Health) (1999), 176 N.S.R. (2d) 333 (NS CA), I agree with the appellate judge: [77] While the Nova Scotia legislation is identical, the Dickie decision does not assist in my interpretation of subsections 40(4)(d) and (g) because the request therein was for records associated with a professional misconduct complaint. The applicant was seeking witness statements and case assessments (paragraph 4) and not names, functions and remuneration. [89] Finally, the appellate judge found support for the conclusion that disclosure of the employee’s name is presumptively an unreasonable invasion of privacy from the decision in MacNeill v. Information and Privacy Commissioner (P.E.I.), 2004 PESCTD 69, 242 Nfld. & P.E.I.R. 231. The legislation under review in that case is the same as the legislation under review here. The appellate judge summarized the result in MacNeill: [80] … that salary range and job titles were not entitled to the presumption of privacy and were in fact deemed not to be an unreasonable invasion of personal privacy under section 15(2)(e) but that the disclosure of individual salary information was entitled to the presumption of privacy under section 15(4)(e) and (g) which presumption was not rebutted by section 15(5) (the equivalent of our 40(5)). [90] Further, the appellate judge explained that the name of an identified employee is a characteristic of that person similar to age, sex or marital status (section 2(u) of the Act), and is not information “about” that person’s position, function or remuneration. She reached that conclusion based on “the surrounding text, other relevant sections [of the Act], the social and legislative context and jurisprudence” (appellate judge’s decision, at paragraph 115). [91] In the result, the appellate judge concluded that disclosure of an employee’s name does not fall within section 40(2)(f) of the Access to Information Act and, therefore, cannot be characterized under the Act as “not an unreasonable invasion of privacy”. (The Province relies on the conclusion that section 40(2) of the Act applies and took no position regarding the application of sections 40(4) and (5).) Page 24 [92] In light of the above discussion I am satisfied that the appellate judge did not err in concluding that disclosure of the employee’s name is presumptively an unreasonable invasion of privacy under section 40(4) of the Access to Information Act. That presumption may be rebutted if the Board, or another participant in the proceeding, can establish that disclosure of employee names as requested by the Telegram is necessary to achieve the purpose of the Act despite the operation of the presumption in section 40(4). Section 40(5) of the Access to Information Act [93] In considering whether the section 40(4) presumption had been rebutted, since the Board, which bore the onus of proof, did not participate in the proceeding, the appellate judge relied on submissions by the other participants. She also referenced the March 2015 report submitted by the committee conducting the statutory review of the existing Access to Information Act and affidavits filed by several teachers. Section 40(5) of the Act requires a consideration of “all the relevant circumstances”, including the enumerated list. [94] The appellate judge found the affidavits to be of little or no assistance. She particularly considered section 40(5)(a) of the Act, that is, “whether the disclosure is desirable for the purpose of subjecting the activities of the province or a public body to public scrutiny”. This factor requires an assessment of the purpose of the Access to Information Act. As discussed above at paragraphs 81 and 82, it is difficult to see how the purpose of subjecting the Board’s activities to public scrutiny is advanced by the disclosure of the names of teachers and employees earning more than $100,000 annually. The names of employees is irrelevant to the compilation of statistical information. [95] The same applies to financial accountability of the Board which would address information as to the number of employees and types of positions and their remuneration, without reference to individual names. As explained by the appellate judge at paragraphs 134 and 135 (paragraph 62, above), disclosure of the positions and their remuneration, while refusing disclosure of the name of the individual employee holding a particular position, achieves the purposes enumerated in section 3(1)(a) and (b) of the Act while protecting the personal privacy of particular employees pursuant to section 3(1)(c). [96] Neither the Province, which did not address the operation of section 40(5), nor the Board, nor any other participant made persuasive submissions to counter this interpretation of the Act which balances the rights of individual employees with the democratic purposes sought to be achieved by the Act. Page 25 [97] In the result, I am satisfied that the appellate judge did not err in concluding that disclosure of the names of all teachers and other employees of the Board, as requested, is, pursuant to section 40(4) of the Act, presumed to be an unreasonable invasion of their personal privacy, and that, upon consideration of all the relevant circumstances, the factors enumerated in section 40(5), and the purpose of the Act set out in section 3, that presumption was not rebutted. SUMMARY [98] In summary, I am satisfied that the appeal is not moot since, unlike the Transparency Act, the Access to Information Act is engaged on the basis of applications for information which may be made at any time and is not restricted to a threshold salary of $100,000. [99] I am satisfied that the appellate judge did not err in concluding that the disclosure of names, as requested in the Telegram’s application under the Access to Information Act, would result in an unreasonable invasion of the employees’ personal privacy. In the result, the Act precluded disclosure of the names. [100] This appeal involves a significant public issue regarding personal privacy and is of fundamental interest to public sector employees and employers, as evidenced by the number of participants. In the circumstances I would make no order as to costs. [101] Accordingly, I would dismiss the appeal, with no order as to costs. _______________________________ B. G. Welsh J.A.