Federal Court Decisions

                                                                                                                      Date: 20050318

                                                              Dockets: T-465-01, T-650-02, T-888-02, T-889-02

                                                                                                            Citation: 2005 FC 384

Ottawa, Ontario, this 18^th day of March, 2005

PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER

BETWEEN:

                        THE INFORMATION COMMISSIONER OF CANADA

                                                                                                                                Applicant

                                                                   - and -

THE EXECUTIVE DIRECTOR OF THE CANADIAN

TRANSPORTATION ACCIDENT

INVESTIGATION AND SAFETY BOARD

                                                                                                                            Respondent

                                                                   - and -

NAV CANADA

Respondent

                                                                   - and -

THE ATTORNEY GENERAL OF CANADA

Intervener

                                                  REASONS FOR ORDER

SNIDER J.

[1]                In each of four applications before me, the Applicant, the Information Commissioner of Canada (the "Commissioner"), pursuant to s. 42(1)(a) of the Access to Information Act, R.S.C. 1985, c. A-1 (the "ATIA"), seeks judicial review of a refusal by the Respondent, the Executive Director of the Canadian Transportation Accident Investigation and Safety Board (the "TSB"), to disclose requested information. In addition, the Commissioner seeks an Order declaring that s. 9(2) of the Radiocommunication Act, R.S.C. 1985, c. R-2 infringes s. 2(b) of the Canadian Charter of Rights and Freedom (the "Charter").

[2]         The information sought by the Commission consists of tapes and transcripts of conversations between air traffic control ("ATC") and aircraft personnel (the "ATC communications"). The applications before me arose as a result of four separate airplane collisions or crashes. A brief description of the incidents, the requests for information and the relevant decisions of the TSB are as follows:      

1. The Clarenville Occurrence

Court File T- 465-01 relates to an application made by Mr. Peter Walsh, who works for CBC TV, to the TSB for access to:

All records regarding investigation into Kelner Airways, Pilatus PC-12 plane crash near Clarenville N.F., 19 May 1998, including final report with ministerial briefings, witness statement and audio tape copy of voice cockpit recorder conversations with air traffic control.

The final decision of the TSB to withhold the information was dated December 11, 2000 and confirmed the position of the TSB stated in its letter to the Commissioner dated September 20, 2000.

2. The Penticton Occurrence

Court File T-650-02 relates to an application made by Ms. Anna M. Feglerska, counsel for the underwriters on behalf of the estate of the pilot of the Mooney M20 who was killed in the incident. The TSB refused the requester access to:

Tapes and transcripts of voice communications between Nav Canada and the pilots of the two aircraft [the Cessna 177RG (C-GWYY) and the Mooney M20 C (C-GAR)] involved in the mid-air collision in or near Penticton, British Columbia on August 20, 1999.

The TSB's reasons for the refusal of this request and the requests made in Court files T-888-02 and T-889-02 are contained in the TSB's letter dated January 31, 2002.

3. The Fredericton Occurrence   

Court File T-888-02 is based on an application to the TSB by the journalist, Mr. Dean Beeby. The TSB refused the requester access to:

Records of radio communications pertinent to the investigation into the landing of an Air-Canada-Canadian Airlines Fokker 28 aircraft at Fredericton Airport on Nov. 28, 2000, including communications involving Moncton ATC, the Fredericton tower and the pilots.

As noted above, the reasons for the TSB's refusal were contained in the TSB letter dated January 31, 2002. This position, in respect of this incident and the incident in Court File T-889-02 were confirmed the TSB's refusal letter dated March 14, 2002.

4. The St. John's Occurrence

In Court File T-889-02, application is made with the consent of the requester, Mr. Dean Beeby. The TSB refused the requester access to:

All air traffic control tapes turned over to the board's investigation into the Aug. 1, 1999, accident at St. John's Nfld., airport in which an InterCanadian Fokker 28 overshot the runway.

In each case, the reasons given by the TSB were consistent. First, the TSB was of the view that the ATC communications were personal information as contemplated by s. 3 of the Privacy Act. Secondly, the TSB concluded that disclosure of the information pursuant to s. 19(2) of the ATIA was not warranted.

ISSUES

[3]         The issues raised by these applications are as follows:

1. Do the ATC communications constitute "personal information" as defined in s. 3 of the Privacy Act, 1980-81-82-83, c. 111, Sch. II "1" (the "Privacy Act") thus preventing disclosure under s. 19(1) of the ATIA?

2. Did the TSB err in determining that disclosure of the ATC communications was not warranted by s. 19(2) of the Privacy Act of the ATIA?

3. Does s. 20(1) of the ATIA prohibit the disclosure of the ATC communications?

4. Can the personal information in the ATC communications reasonably be severed from the remaining information pursuant to s. 25 of the ATIA?

5. Does s. 9(2) of the Radiocommunication Act R.S.C. 1985, c. R-2, infringe s. 2(b) of the Charter which guarantees freedom of expression and, if so, is such an infringement justified under s.1 of the Charter?

THE STATUTORY SCHEME

[4]         The principal issue in this case is whether the ATC communications contain "personal information" as defined by s. 3 of the Privacy Act and, as such, were exempt from disclosure by virtue of s. 19(1) of the ATIA. Section 3 defines "personal information" as follows:

s. 3 "personal information" means information about an identifiable individual that is recorded in any form...

[5]         Section 19(1) of the ATIA is as follows:

[6]         Section 19(2) of the ATIA sets out the circumstances in which the head of a government institution may disclose a record containing personal information:

[7]      Section 8(2)(m)(i) of the Privacy Act provides that personal information may be disclosed where, "in the opinion of the head of the institution, the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure".

[8]         The final provision to consider is s. 25 of the ATIA, which contemplates categorizing the information into personal and non-personal categories and then severing the two, allowing disclosure of the non-personal information:

ANALYSIS

Issue #1: Are the ATC communications "personal information" within the meaning of s. 3 of the Privacy Act?

[9]         The parties agree that the issue of whether this is personal information is the most critical question for determination. They also agree that the TSB's determination is to be reviewed on a standard of correctness (Canada (Information Commissioner) v. Canada (RCMP), [2003] 1 S.C.R. 66, at paras. 14 - 19).

[10]       Both the TSB and NAV Canada argue that the ATC communications are personal information. The Commissioner submits that they are not. There is nothing that specifically covers this type of information in either the ATIA or the Privacy Act. Further, none of the jurisprudence referred to is directly on point. Accordingly, the determination of whether the ATC communications are personal information within the meaning of s. 3 must be made on the application of general principles and a measure of common sense.

[11]       Section 3 defines personal information as "information about an identifiable individual that is recorded in any form". There are three components to the definition:

·      the information must be "about" an individual;

·      the individual must be identifiable; and

·      the information must be recorded.

[1]         Speaking for the minority, but supported in his views on the interpretation of s. 3 by the majority of the Supreme Court of Canada, Justice La Forest in Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at paras. 68 - 69, had the following to say about the definition:

. . . On a plain reading, this definition is undeniably expansive. Notably, it expressly states that the list of specific examples that follows the general definition is not intended to limit the scope of the former. As this Court has recently held, this phraseology indicates that the general opening words are intended to be the primary source of interpretation. The subsequent enumeration merely identifies examples of the type of subject matter encompassed by the general definition; see Schwartz v. Canada,[1996] 1 S.C.R. 254, at pp. 289-91. Consequently, if a government record is captured by those opening words, it does not matter that it does not fall within any of the specific examples.

As noted by Jerome A.C.J. in Canada (Information Commissioner) v. Canada (Solicitor General), supra, at p. 557, the language of this section is "deliberately broad" and "entirely consistent with the great pains that have been taken to safeguard individual identity". Its intent seems to be to capture any information about a specific person, subject only to specific exceptions; see J. Alan Leadbeater, "How Much Privacy for Public Officials?", speech to Canadian Bar Association (Ontario), March 25, 1994, at p. 17. Such an interpretation accords with the plain language of the statute, its legislative history and the privileged, foundational position of privacy interests in our social and legal culture. [emphasis added]

[2]         These views of Justice La Forest were cited with approval by the Supreme Court of Canada in the recent decision in Canada (Information Commissioner) v. Canada (RCMP), [2003] 1 S.C.R. 66 at para. 23.

[3]         Further, I note Justice La Forest's view, at para. 94 of Dagg:

[I]nformation relating primarily to individuals themselves or to the manner in which they choose to perform the tasks assigned to them is "personal information". [emphasis added]

[4]         An expansive interpretation of s. 3 does not necessarily mean that every utterance of an individual is protected from disclosure under the Privacy Act. Even if a particular recording meets the definition of personal information, it may lose protection by the operation of a number of provisions of both the Privacy Act and the ATIA. For example, information that falls within the description of s. 3(j), (k), (l) or (m) of the definition (none of which is relevant here) is not considered personal information for certain purposes of the ATIA. In addition, despite information being personal, disclosure may be authorized pursuant to s. 19 of the ATIA.

[5]         In my view, the legislative scheme provides a balance that is sensible and workable. Parliament has recognized the importance of individual privacy at the same time as it has provided a framework for weighing those privacy concerns against the important needs, at times, for disclosure. The public interest is well served by taking a broad view of what is "personal information" and then considering, under an equally expansive scheme, whether that information should, nevertheless, be disclosed.

[6]         With these principles in mind, I turn to the facts of this case. There is no question that the ATC communications were recorded. The views differ on the other two aspects of the definition. I will consider each in turn.

Are the ATC communications about an individual?

[7]         The Commissioner submits that the ATC communications are merely an exchange of information related to the provision of services. They are, in his view, "transactions" recorded in a system designed to keep track of information. ATC communications provided by NAV Canada are regulated as to content by s. 2 of the Civil Air Navigation Services Commercialization Act, S.C. 1996, c. 20 and s. 6 of the Radiocommunication Regulations SOR/96-484. The content of the communications is limited to the safety and navigation of aircraft, the general operation of the aircraft, and the exchange of messages on behalf of the public. These messages are highly regulated and transmitted over frequencies reserved specifically for aeronautical services. Users of these frequencies are statutorily required not to identify themselves using their names. All of this is correct.

[8]         The Commissioner points out that the records contain information about the status of the aircraft, weather conditions, matters associated with air traffic control and the utterances of the pilots and controllers. Only a very few lines in one of the communications contain direct references to names or other information that the Commissioner acknowledges is personal.

[9]         I agree with the Commissioner that these are recordings of "transactions" and that the information is almost exclusively technical. However, in my view, the ATC communications, when viewed in context, are also much more. The fact that they are a record of transactions and contain factual information does not preclude them from being personal information or information about the individuals.

[10]       In this case, there are two different types of individuals involved; the ground crew of air traffic controllers and flight specialists and the air crew. To establish the nature of the communications, I look to the purpose for which they are made and used.

[11]       Canada is a signatory to the Convention on International Civil Aviation signed at Chicago, Illinois on December 7, 1944 (the "ICAO Convention"). Included in Annex 10, Volume II to the ICAO Convention is a provision which mandates the logging of ATC communications. These standards are incorporated into Part VIII - Subpart 2 of the Canadian Aviation Regulations, SOR /96-433.

[12]       Most of the time - thankfully - any given flight takes place without incident. In those cases, the tapes are kept for 30 days and are then destroyed. However, in a very few cases there may be an "aviation occurrence", which is defined in s. 2 the TSB Act as:

[13]    In such an event, the ATC communications become very important indeed. NAV Canada will notify the TSB of the incident. The TSB may commence an investigation of the occurrence, as happened with each of the occurrences that are the subject of these proceedings. The relevant ATC tapes are then provided to the TSB investigators. In the hands of the TSB, these tapes become much more than a "transaction"; they are used as part of the TSB investigation. As stated in the TSB Act:

[14]       In doing its job, the TSB must examine how individuals involved with the occurrence did their jobs. What caused the accident? Were there safety deficiencies? More pointedly, did the actions of the controllers or the pilots involved contribute to the occurrence? One significant way of evaluating the individual performances of the personnel is through the ATC communications. The ATC communications are used to assess the manner in which the air traffic controllers and the aircraft personnel chose to perform the tasks assigned to them. A simple way of looking at this information is that the sole purpose for the existence of the ATC communications is to carry out an evaluation of the performance of the parties to those communications in the event that something goes wrong.

[15]       For these reasons, I conclude that the ATC communications are "about" the individuals involved.

Are the individuals identifiable?

[16]       The Commissioner submits that controllers cannot be identified unless a person has access to NAV Canada's shift log books. Neither common sense nor the evidence before me bears out this assertion. ATC communications only come to the attention of the TSB when there has been an unfortunate event. When an airplane crash or near miss occurs, significant interest by the press and the public will almost certainly follow. It is simply unrealistic to expect that pilots or, in some cases, traffic controllers will not be identified as being connected with an accident.

[17]       The practice of air traffic controllers is to not refer to persons by name. However, this is not the only way in which the persons can be identified. Ms. Kathleen Fox, Assistant Vice-President of Air Traffic Services at NAV Canada, has 30 years of experience in the area of air traffic control. In her affidavit and in cross-examination on her affidavit, she opined that listening to the ATC tapes would allow identification of the aircraft, the location and operating initials of the specific controller. Further, the voices of the individual controller and pilot may be heard and identified. When asked, during cross examination on her affidavit, whether there were other identifiers which could lead a person to discover or locate the individuals, Ms. Fox stated:

Well, there's the aircraft identification itself. The civil registration or the flight number. There's the way the speaker identifies themselves as the [name of tower]. And there's also the use of operating initials by the individual controllers or specialists in conducting interphone conversations. There's certainly the voice of those - for those who may know that individual, who would recognize the voice. Especially if they knew where they worked and the date and time of the occurrence. So all of those things can lead to identification of the individuals involved.

[18]       In the context of a request for information for ATC communications for an earlier incident involving the tragic crash of Swiss Air 111 off the coast of Nova Scotia, the Commissioner himself stated:

In my view, the voices, along with the tonal and emotive characteristics constitute personal information of the three air traffic controllers and the two pilots. Disclosure would link the information to identifiable individuals. It would also link the content contained in the public transcript to identifiable individuals. [emphasis added]

[19]       Further evidence that controllers are identifiable was provided by Mr. Ron Brown, whose father was killed in the crash of a small plane in British Columbia (not one of the occurrences at issue in these proceedings). In a letter to NAV Canada seeking access to the tapes of the accident, Mr. Brown identified the controller on duty.

[20]       I am persuaded that the individuals involved in the ATC communications are identifiable. Perhaps not with 100% accuracy but sufficiently to meet the requirement of s. 3 of the Privacy Act.

Do the individuals have a reasonable expectation of privacy?

[21]       The Commissioner submits that, according to the analysis of Justice La Forest in Dagg, to be personal information, the individuals whose words are in issue must have a reasonable expectation of privacy. Building on this belief, the Commissioner argues that the controllers can have no expectation of privacy since they must be aware that: (a) the TSB may use and release the information contained in the ATC communications in the course of its investigation and report on an occurrence; and (b) parties are able to lawfully listen on scanners to the conversations in real time.

[22]       There are two reasons why I do not accept the arguments of the Commissioner on this point. The first is that the Commissioner is reading words into both s. 3 and the analysis of Justice La Forest. The definition of "personal information" does not include the requirement that the parties hold a reasonable expectation of privacy. Further, Justice La Forest in Dagg, at para. 71, in considering "the reasonable expectation of privacy" principle, stated that it was not strictly necessary for his analysis. The question of whether someone holds an expectation of privacy may well enter into a subsequent analysis of whether, in spite of information being personal, it should be disclosed pursuant to s. 19(2) of the ATIA. But, it is not relevant for a determination of whether information is "personal information" as contemplated by s. 3.

[23]       The second reason for rejecting this argument is that, even if this is a requirement, in the circumstances, I am satisfied that the air traffic controllers and the pilots - the parties to the communications - would not expect strangers to have access to the ATC communications in the manner sought by the Commissioner. Certainly, both the controllers and the pilots would know and expect that any mishap would be investigated, that the ATC communications would be carefully examined as part of that investigation and that the results of an investigation could make reference to (or even include) the ATC communications. However, this is a far cry from an admission that there is no expectation of confidentiality.

[24]       This use of the ATC communications falls within the type of information that was referred to by Justice La Forest in Dagg, at para. 75:

In determining whether an individual has a reasonable expectation of privacy in a particular piece of information, it is important to have regard to the purpose for which the information was divulged; see Dyment, supra, at pp. 429-30, per La Forest J.; R. v. Plant, [1993] 3 S.C.R. 281, at pp. 292-93. Generally speaking, when individuals disclose information about themselves they do so for specific reasons. Sometimes, information is revealed in order to receive a service or advantage. At other times, persons will release information because the law requires them to do so. In either case, they do not expect that the information will be broadcast publicly or released to third parties without their consent. As I stated in Dyment, supra, at pp. 429-30, "situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected". [emphasis added]

[25]       The ATC communications do not lose their character as personal communications merely because there is a legal obligation for the conversations to be recorded or for the tapes to be provided to the TSB if requested. The controllers and pilots have every right, in my view, to expect that use by the TSB of the ATC communications will be restricted to the purposes for which they were obtained. The information was not obtained by the TSB for the purposes of distributing it to the public at large; the TSB is not a publishing house for ATC communications.

[26]       As a review of the record before me demonstrates, there are many indicators of the confidential nature of the ATC communications.

            ·      The consistent policy of NAV Canada has been to protect the ATC communications and to not make them available to the public.

            ·      The collective agreements governing the relationship between the unions and NAV Canada contain a clause prohibiting use of the tapes beyond what is required by law. NAV Canada training manuals require that such communications be treated as confidential.

            ·      The policy of the TSB (discussed in more detail below, beginning at paragraph 59 has been to keep the ATC communications confidential.

            ·      As noted earlier, the ICAO Convention guides the investigation of aviation occurrences. Section 5.12 of the convention provides that the State conducting the investigation shall not make ATC communications available for purposes other than the accident or incident investigation except in certain circumstances where the public interest outweighs the interest in non-disclosure. To a large degree, the TSB investigation mandate provided in its enabling legislation tracks precisely the relevant provisions of the ICAO Convention.

            ·      A review of international practices demonstrates that non-disclosure of information of this nature is the norm.

[27]       The Commissioner made much of the fact that third parties may listen to the ATC communications through the use of scanners. There appears to be a significant interest by a small community of persons in following the conversations between ground personnel and air crews. However, under s. 9(2) of the Radiocommunication Act, "no person shall intercept and make use of, or intercept and divulge" the ATC communications. Even if I accept that third parties may lawfully listen to the ATC conversations (an assumption with which I have considerable difficulty), further use or divulgence of the ATC communications would be contrary to s. 9(2). This reinforces the expectation that the conversations will be kept confidential.

[28]       In conclusion on this point, this is not, as stated by the Commissioner, "a sound track of public business information. Rather the ATC communications exist for disclosure in a limited and controlled way. Thus, I am satisfied that the parties to the ATC communications have a reasonable expectation that their privacy will be respected.

Conclusion

[29]       With respect to this issue, I am satisfied that the TSB was correct in concluding that the ATC communications are personal information within the meaning of s. 3 of the Privacy Act.

Issue #2: Should this personal information be disclosed?

[30]       A conclusion that information is personal information does not end the analysis. Although s. 19(1) of the ATIA prohibits the head of a government institution from disclosing any record that contains personal information, s. 19(2) of the ATIA describes certain situations in which the head has the authority to release the information. Briefly, the exceptions provided in s. 19(2) are the following:

·      the individual to whom it relates consents to the disclosure (s. 19(2)(a));

·      the information is publicly available (s. 19(2)(b)); or

·      the disclosure is in accordance with s. 8 of the Privacy Act (s. 19(2)(c)).

[31]       Should any one of these exceptions exist, s. 19(2) provides that the head of the government institution may disclose the information. In this case, the first of these exceptions is not applicable and was not argued before me.

Is s. 19(2)(b) applicable?

[32]       The second situation in which the TSB would have the authority to release personal information is where the information is publicly available (ATIA, s. 19(2)(b)). The parties agree that the standard of review of this determination is one of correctness; that is, I must be satisfied that the TSB was correct in concluding that the ATC communications were not "publicly available", within the meaning of s. 19(2)(b) of the ATIA. The Commissioner submits that the ATC communications are publicly available and thus meet the requirement of s. 19(2)(b).

[33]       To ascertain whether s. 19(2)(b) would operate to authorize the TSB to release the information, I begin with the question of whether the ATC communications that are the subject of these applications are "publicly available".

[34]       I will consider first the argument of the Commissioner that, because parties may intercept or listen to the communications, they are publicly available. Once again, I will put aside the Commissioner's argument that listening to the ATC communications through the use of scanners is a legal activity.

[35]       To begin, I am not even aware that anyone listened to these particular communications by way of radiocommunication scanners. While I was presented with evidence that demonstrates that the use of scanners is widespread, I have no evidence to show that the ATC communications in this case (other than the Clarenville ATC communications that are discussed below) were heard by anyone.

[36]       Further, even if the ATC Communications in this case had been intercepted, I do not believe that a one-time listening by one or more individuals brings the information into the public domain. It appears to me that, for information to be in the public domain, it must be available on an ongoing basis for use by the "public". For example, in Timiskaming Indian Band v. Canada (Minister of Indian and Northern Affairs), [1997] F.C.J. No. 676 (T.D.) at para. 34, this Court stated that documents that had not been disclosed before were in the public domain because "they have been available to the public who attend at the Registry and conduct searches and make specific requests for them under the existing Registry system". In these cases, there is no public registry or repository where a member of the public can search for these recordings or find the transcripts of these ATC communications. Thus, it is my view that information that is listened to once is not, without evidence of further and ongoing availability, in the public domain or publicly available.

[37]       Next, I note that the words of the section use the present tense. That is, the provision allows the head of a government institution to disclose information if the information "is" publicly available. The ATC communications, even if I conclude that they were "publicly available" at the time they were made, are not now available for review or in the public domain. This applies to all of the ATC communications, except perhaps for those related to the Clarenville Occurrence.

[38]       The situation with respect to the Clarenville Occurrence is different. The ATC audio recording and transcript were disclosed twice by the TSB upon receipt of ATIA requests. The request that is the subject of this application was the third request for the ATC Communications.

[39]       The parties who received the Clarenville information are journalists. One of the journalists, a producer and director of the CTV news documentary programme W-Five, based a segment of a broadcast, in part, on the ATC communications and the other journalist included some of the information in a published book. Thus, with respect to the Clarenville ATC communications, dissemination of the information in the tapes and transcripts has been widespread. While, to date, neither of the journalists has played the entire contents of the tapes or printed the complete transcripts, it is possible that they still retain copies and could release those at any time. It is difficult, therefore, to conclude that the Clarenville ATC communications are not publicly available. For these reasons, I am satisfied that the Clarenville ATC communications are publicly available and, therefore, that the requirement of s. 19(2)(b) is met.

[40]       If I am correct in this assessment of the Clarenville ATC Communications, the TSB had the authority to release the ATC communications upon request. The next question is whether the TSB was required to exercise this authority and release the information.

[41]       The Commissioner relies on the decision of this Court in Canada (Information Commissioner) v. Canada (Minister of Public Works and Government Services) [1997] 1 F.C. 164, at paras. 43 - 44 ("Public Works") to argue that, once public availability has been established, the TSB has no discretion to refuse to disclose the information. Specifically, the Commissioner refers to the words of Justice Richard (as he then was) as follows:

The purpose of the Act not only calls for "a right of access to information", but states "that necessary exceptions to the right of access should be limited and specific." In this case, it is not clear why Parliament in these circumstances would grant a residual discretion to withhold information. Indeed, why should the Minister have an overriding concern in information that is in the public domain and that has been consented to be released? There is no public policy objective to be served by giving a discretion to refuse to disclose information which is publicly available or which has been consented to. Therefore, there is no purpose to be served by interpreting paragraphs 19(2)(a) and (b) as discretionary. The Access Act is replete with exemptions. Information from foreign states, commercial information and national security are just some of the exemptions contained in the Access Act. I see no reason to add one more.

Conversely, if subsection 19(2) is discretionary then why would the legislators use the superfluous language in paragraphs (a) and (b)? Why not just say the head of the government institution may disclose any record if the disclosure is in accordance with the public interest? Indeed, if paragraphs 19(2)(a) and (b) are discretionary then why discuss them at all? . . . . Parliament must have intended a useful purpose by including paragraphs 19(2)(a) and (b).

I find the purpose of these two paragraphs to be directive. If the interested party consents to the release of information, or if information is in the public domain, then the head of a government institution is directed to disclose that information.

[42]      These comments are sensible and, at first blush, appear to be applicable to this case. If I follow this decision, the Commissioner tells me that I would be required to find that s. 19(2)(b) obligates the TSB to disclose those records. In other words, I am urged to conclude that the "may" in s. 19(2)(b) is directive.

[43]       However, I do not think that this would be a just result in this situation. The earlier releases of the Clarenville ATC communications were made without any consideration of whether they contained personal information or whether they should be disclosed. Indeed, the subsequent analysis and conclusion by the TSB of these questions was that this information was personal information that should not be released. If correct in its subsequent decision, the first two releases should never have been made. Should the TSB be forced to compound that error by releasing the information again? In my view, this is a situation in which the TSB could reasonably exercise the discretion given it by inclusion of the word "may" in s. 19(2) and refuse to disclose the tapes and transcripts again. Further, in interpreting the "may" in s. 19(2)(b) as discretionary, I note the words of Justice La Forest in Dagg, at para. 108, where he stated that:

Of course, s. 19(2) of the Access to Information Act provides that the head of a government institution may disclose information in certain circumstances. Generally speaking, the use of the word "may", especially when it is used, as in this case, in contraindication to the word "shall", indicates that an administrative decision maker has the discretion and not the duty, to exercise a statutory power . . .

[44]       Thus, while it may well be that the refusal to disclose could be of no practical effect if the journalists themselves decide to release the tapes and transcripts, I am not prepared, in these circumstances, to order the TSB to do so.

[45]       On this matter, one further observation was made by the Commissioner. The ATC communications in respect of the Penticton Occurrence appear to have been before the Supreme Court of British Columbia in Sabourin Estate v. Watterodt Estate, 2004 BCSC 243. In that case, the Court was considering issues of liability arising from the incident. Excerpts from the transcript are included in the judgment. In my view, this does not lead to a conclusion that the ATC communications are "publicly available". Personal information is almost always available, through various means, to assist the courts in civil and criminal law cases. Further, in this case, the Commissioner provided me with no details of how the evidence was introduced or dealt with in the Supreme Court of British Columbia. While reference to and selective quotations from the ATC communications are included in the judgment, it may well be that the audio recording and transcripts themselves are subject to a confidentiality order. It would be regrettable if otherwise private information subject to non-disclosure obligations becomes "publicly available" and subject to mandatory disclosure merely because it has been referenced in a civil law suit.

Is s. 19(2)(c) of the ATIA applicable?

[46]       In the circumstances of this case, the final way in which the TSB would have the authority to disclose the ATC communications is if disclosure of the information would be in accordance with s. 8 of the Privacy Act. The Commissioner presents arguments based on two different aspects of this section.

1.          Are section 8(2)(a) and (b) of the Privacy Act applicable?

[47]       The Commissioner first argues that s. 8(2)(a) and (b) apply to these facts. Pursuant to these provisions, the head of an institution is authorized to disclose personal information:

(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose;

(b) for any purpose in accordance with any Act of Parliament or any regulation made there under that authorizes its disclosure.

[48]       The essence of the Commissioner's argument on this point is that, since the TSB may disclose the information during the course of its investigation or in its report on any occurrence, disclosure by the TSB would be authorized under either of these provisions. The Commissioner points to earlier practices of the TSB to release similarly situated ATC communications as confirmation that such disclosure falls within these exceptions. I do not agree.

[49]       It is not disputed that the TSB may include the ATC communications in its investigative reports. Such a release would be directly authorized by either s. 8(2)(a) or (b). However, the Commissioner leaps to the conclusion that a statutory provision giving a government institution the authorization to disclose information for the purposes of its enabling legislation obligates the institution to release the information to the public at large. This simply does not follow. In fact, in my view, the words of these provisions carefully and specifically define the boundaries of any disclosure. Use of the ATC communications by the TSB and, if necessary, reference to them in the TSB reports is disclosure for the purposes for which they were obtained by the TSB in the first place. Further disclosure would not be for such purposes.

[50]       Secondly, the Commissioner argues that the policy of the TSB was, up until the transfer of the air traffic controllers and their functions to NAV Canada, to release the ATC communications. The submission appears to be that, if the earlier release was made, it must have been consistent with the use for which they were obtained. Once again, I find this to be a leap in logic that cannot be supported. In any event, the record does not establish that release of the information obtained from NAV Canada is, or ever was, a policy.

[51]     Concerning the practice of the TSB, Mr. Kenneth Johnson, the former Executive Director of the TSB, had the following to say during cross-examination on his affidavit:

But generally, things are not shared more widely than on a need to know basis. And even in the operation of the Board itself, in the 20 years or so that I was there, I think maybe two or three times the Board heard cockpit voice recordings. And two or three times maybe read in a Board meeting a transcript of an air traffic control recording. But the things are kept very, very tight and close to those who need to know, generally speaking.

[T]here were public inquiries in the Aviation Safety Board prior to 1984, from 1984 to 1990. There were several public inquiries. And I don't recall any real difficulty with air traffic control recordings at that time. And the Board has the discretion to release what it needs to release in the interests of safety. . . . So, if it needed to, it could, or could have.

[A]long the way we developed a understanding, that we later determined to be an incorrect understanding, that the air traffic controllers . . were public servants. And the protections that apply to other people are not the same for public servants and had to talk about what they would do. And they [the ATC Communications] appeared to be releasable when they were asked for under [ATIA].

So we changed our practice a bit towards the end. And that's partly what led to the amendments in 19 - was it 1998. And when the air traffic controllers moved out to NAV Canada the employees were no longer public servants and what we had been operating changed again. So it became personal information that wasn't subject to that release.

Q. 227 So, you are telling me that from prior to the amendment of 1998, the Transportation Safety Board had a practice to release the air traffic control communications?

A. Towards the end. Towards the end.

[52]       As I understand Mr. Johnson's testimony, disclosure of ATC communications has been the exception and not the rule. While there may have been a short-lived practice to release ATC communications prior to the establishment of NAV Canada, when the air traffic controllers were public servants, the current policy is that the tapes and transcripts are personal information that is not subject to release.

[53]       In summary, I am satisfied that neither s. 8(2)(a) or (b) is applicable to authorize release of the information in the circumstances before me.

2.          Was the discretion under s. 8(2)(m)(i)of the Privacy Act properly exercised?

[54]       The Commissioner further submits that the TSB failed to properly exercise his discretion under s. 8(2)(m)(i) of the Privacy Act. As noted, this provision allows the TSB to disclose the information where, in the opinion of the TSB, "the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure".

[55]       Justice Strayer in Kelly v. Canada (Solicitor General) (1992), 53 F.T.R. 147, at p. 149 (aff'd [1993] F.C.J. No. 475) outlined the task to be undertaken by a reviewing judge in this situation.

It will be seen that these exemptions require two decisions by the head of an institution: first, a factual determination as to whether the material comes within the description of material potentially subject to being withheld from disclosure; and second, a discretionary decision as to whether that material should nevertheless be disclosed.

The first type of factual decision is one which, I believe, the Court can review and in respect of which it can substitute its own conclusion. This is subject to the need, I believe, for a measure of deference to the decisions of those whose institutional responsibilities put them in a better position to judge the matter. . . .

The second type of decision is purely discretionary. In my view in reviewing such a decision the Court should not itself attempt to exercise the discretion de novo but should look at the document in question and the surrounding circumstances and simply consider whether the discretion appears to have been exercised in good faith and for some reason which is rationally connected to the purpose for which the discretion was granted. [emphasis added]

[56]       In the case before me, I have concluded that the TSB was correct in determining that the ATC communications come within the description of materials that are subject to withholding. That is, the first decision referred to by Justice Strayer has been made. My analysis now turns to the second decision made by the TSB that he should not exercise his discretion to disclose this personal information.

[57]       This approach to reviewing the exercise of discretion under s. 8(2)(m)(i) of the Privacy Act was endorsed by Justice La Forest in Dagg, at para.110. As pointed out by Justice La Forest, at para. 109 of Dagg, "It is difficult to imagine statutory language setting out a broader discretion". That, of course, does not mean that the decision is free from judicial oversight. However, as described in Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2, at pp. 7-8, I should only intervene where:

·      the discretion was not exercised in good faith;

·      the discretion was not exercised in accordance with the principles of natural justice; or

            ·      reliance was placed upon considerations irrelevant or extraneous to the statutory purpose.

[58]       The Commissioner does not submit that the TSB acted in bad faith or that the tribunal breached the principles of natural justice. The thrust of his argument appears to be that the TSB did not take into account the following:

            ·      There is no "privacy interest" in the ATC communications because the communications are carried over public airwaves, they do not contain personal information and the parties are aware that the communications are subject to potential disclosure by the TSB; and

·      There is significant public interest in disclosure of such communications, as evidenced by the record and by the disclosure practices of other jurisdictions.

[59]       To determine what was taken into account by the TSB, I turn to the various letters of the TSB setting out his reasons for refusing disclosure and to the affidavit of Mr. David Kinsman, the Executive Director of the TSB who was the person responsible for making the decisions in question. Mr. Kinsman stated that, in exercising his discretion pursuant to s. 19(2)(c), he took the following factors into account:

(a) the fact that the TSB Act invests ATC communications with a "degree of privilege";

(b) the international treatment of ATC communications pursuant to international agreements and as practised by other countries;

(c) the mandate of the TSB;

(d) the fact that the TSB has the discretion, in the context of an investigation, to disclose information which it deems necessary, and that it can refer directly to the contents of the tapes or transcripts, summarize the ATC communications or "even reproduce all or a part of an ATC Tape if it is of the view that such is warranted";

(e) the fact that communications are carried on public radio frequencies and that it is possible to listen in to what is being said;

(f)    Section 9 of the Radiocommunication Act which makes it an offence to make use of or divulge the ATC communications that are intercepted; and,

(g) the confidentiality provisions in the collective agreement between NAV Canada and its employees.

[60]      Taking those factors into account, the TSB concluded that:

(a) the public interest in respect of aircraft safety and the safety of air transportation is addressed by the investigation and report made by the TSB pursuant to its mandate under the TSB Act;

(b) a release of the ATC communications would be some invasion of privacy of the individuals whose voices and words are on the tapes and in the transcripts; and,

(c) "on balance, the public interest in the disclosure of the information in question did not clearly outweigh the invasion of privacy".

[61]       In summary, the TSB took into account a wide range of factors, none of which can be said to be irrelevant or extraneous to the statutory purpose. For example, the TSB was aware of and considered the availability of the information to persons listening with scanners. The TSB was aware of and considered the practices in other jurisdictions. The TSB took into account that it could, if the need arose, disclose all of the ATC communications in the context of an investigation.

[62]       In effect, the Commissioner is asking me to re-weigh the evidence before the TSB. I decline to do so. I see no need to intervene in the decision of the TSB to refuse to exercise his discretion under s. 19(2)(c) of the ATIA .

Issue #3: Does s. 20(1)of the ATIA prohibit the disclosure of the ATC communications?

[63]       Section 20(1)(b) of the ATIA requires a government institution to refuse to disclose a record from a third party that contains "financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party".

[64]       NAV Canada submits that the ATC communications satisfy the criteria in s. 20(1)(b) of the ATIA, either as commercial or technical information, and as such are not subject to disclosure. The Commissioner disagrees. I have concluded that the TSB was correct in its determination that the information is personal information and that there was no error in the exercise of discretion under s. 19(2). It follows that the ATC communications need not be disclosed. Accordingly, there is no need to consider this issue.

Issue #4: Can the personal information in the ATC communications be severed pursuant to s. 25 of the ATIA?

[65]       The Commissioner argues that certain of the information could be severed from the ATC communications pursuant to s. 25 of the ATAI. My conclusion on the issues that have proceeded this one are that ATC communications are personal information by their nature. Accordingly, there is nothing that could be severed and no need to address this issue.

Issue #5: Does s. 9(2)of the Radiocommunication Act infringe s. 2(b) of the Charter?

[66]       The Commissioner alleges that s. 9(2) of the Radiocommunication Act infringes s. 2(b) of the Charter. He filed with this Court and served a Notice of Constitutional Question on all of the parties and the Attorneys General of all the provinces and territories. The essence of the Commissioner's submission on this point is as follows:

            ·            Section 2(b) of the Charter encompasses the right to freedom of thought, belief, opinion and expression - including the freedom of the press. Cory J. in Edmonton Journal v. Alberta (Attorney-General), [1989], 2 S.C.R. 1326, at para. 3, said that "a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions".

·            Expression consists of any activity or communication that conveys or attempts to convey meaning and the public has the right to receive that information and to comment upon it or evaluate the accuracy of it.

·            Section 9(2) of the Radiocommunication Act prohibits the use and/or dissemination of radiocommunication aired on public frequencies. Such communications clearly impart meaning. Thus s. 9(2) clearly infringes an individual's right to freely inform others of what they have learned through a non-prohibited public source.

[67]       The Supreme Court has cautioned that Charter issues should not be decided where it is not necessary to do so, and has stressed that Charter issues are to be decided on a proper evidentiary record. See, for example, Phillips v. Nova Scotia (Commissioner of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 at paragraphs 6 to 12 for authority that unnecessary issues of law should not be decided (particularly constitutional issues) and R. v. Mills, [1999] 3 S.C.R. 668 at paragraph 38 for authority as to the importance of a proper factual foundation to support the determination of the constitutionality of legislative provisions.

[68]       In my view, the constitutional issue raised is not properly the object of these proceedings. The present judicial reviews are based solely on an attack on the refusal of the TSB to disclose the ATC communications. That decision did not require the TSB to apply the statutory provision in question. There is no evidence before me that indicates that the operation of s. 9(2) was the determinative factor in the TSB's decision. Indeed, it appears that the role of s. 9(2) in the decisions is minor; it is but one of the factors that the TSB considered when it concluded that the information ought not to be disclosed.

[69]       Further, I note the interaction of s. 9(2) with the provisions of the Interpretation Act. ATC communications fall within both the definition of a radiocommunication and the definition of a telecommunication as set out in the Interpretation Act:

[70]       This link was not pointed out by the Commissioner. I am left pondering whether a determination of the constitutionality of s. 9(2) would have unintended consequences for this definition and for the scope of any ruling that I might make.

[71]       In addition, where the content of ATC communications have been found to be "personal information," intended only for the parties of the communication, it appears that such information would also fall within the definition of a private communication set out in Part VI, s. 183 the Criminal Code of Canada:

[72]       Part VI, s. 183 of the Criminal Code also includes the definition of the word "intercept" and that definition includes merely listening:

[73]       Finally, Part VI, s. 184(1) of the Criminal Code stipulates that the interception of a private communication constitutes an offence:

[74]       By rendering unconstitutional s. 9(2) of the Radiocommunication Act, would I also - albeit unintentionally - be affecting these provisions of the Criminal Code? I suspect that I would. However, I do not have an adequate record before me to deal with these broader issues. In my view, the constitutionality of s. 9(2) should only be assessed by the Court when the issue is directly and completely before the Court.

[75]       For these reasons, I conclude that these proceedings are not the proper forum to argue this constitutional question.

SUMMARY

[76]      In summary, I conclude that:

1. The TSB was correct in determining that the ATC communications at issue in these applications are personal information as meant by s. 3 of the Privacy Act and thus precluded from disclosure pursuant to s. 19(1) of the ATIA.

2. Other than the ATC communications related to the Clarenville occurrence, the ATC communications are not publicly available.

3. The TSB was not in error to refuse to disclose the Clarenville communications on the basis of the discretion that exists in s. 19(2) that provides that the head of a government institution may disclose information that is publicly available.

4. The TSB properly exercised its discretion when he considered whether s. 8(2)(m)(i) authorized him to release the ATC communications.

5.    Given these conclusions, it is unnecessary for me to consider:

(a) whether the ATC communications are commercial or technical information within the meaning of s. 20(1)(b) of the ATIA;

(b) whether any of the informationcan reasonably be severed from the remaining information pursuant to s. 25 of the ATIA.

6.    On the basis that the constitutional question is not properly or adequately before me, I decline to consider whether s. 9(2) of the Radiocommunication Act infringes s. 2(b) of the Charter.

[77]       Orders will issue denying the applications of the Commissioner in each of the cases.

[78]      Parties will have until April 8, 2005 to attempt to reach an agreement on the issue of costs. If unable to agree, parties may make written submissions on costs, not to exceed three pages in length, to this Court on or before that date. Parties will then have until April 15, 2005 to respond, if they choose.

       "Judith A. Snider"

Judge

                                                       FEDERAL COURT

                      NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKETS:                                 T-465-01

T-650-02

T-888-02

T-889-02

STYLE OF CAUSE:         THE INFORMATION COMMISSIONER OF CANADA

v. THE EXECUTIVE DIRECTOR OF THE CANADIAN

TRANSPORTATION ACCIDENT INVESTIGATION

AND SAFETY BOARD et al

PLACE OF HEARING:                   Ottawa, Ontario

DATE OF HEARING:                       January 18, 2005

REASONS FOR JUDGMENT        The Honourable Madam Justice Snider

DATED:                                             March 18, 2005

APPEARANCES:

Daniel Brunet                                                           FOR THE APPLICANT

Patricia Boyd

Barbara McIsaac, Q.C.                                           FOR THE RESPONDENT

Gregory Tzemenakis

Brian Crane, Q.C.                                                   FOR THE ADDED RESPONDENT

Graham Ragan

Christopher Rupar                                                   FOR THE INTERVENER

SOLICITORS OF RECORD:

Office of the Information Commissioner                    FOR THE APPLICANT

of Canada

McCarthy Tétrault LLP                                           FOR THE RESPONDENT

Gowling Lafleur Henderson LLP                              FOR THE ADDED RESPONDENT

John H. Sims, Q.C.                                                 FOR THE INTERVENER

Deputy Attorney General of Canada