Date: 19981230
Docket: T-2634-97
IN THE MATTER OF an application pursuant to Section 41 of the Privacy Act, R.S.C., 1985, Chapter P-21, for review to the Federal Court of Canada of the refusal by the Commissioner of Official Languages to disclose records requested by Don B. Rogers by a privacy request of 19 September 1996 under the Act.
BETWEEN:
DON B. ROGERS
Applicant
- and -
THE COMMISSIONER OF OFFICIAL LANGUAGES
Respondent
REASONS FOR ORDER
WETSTON J.
Facts
[1] This is an application pursuant to s. 41 of the Privacy Act (the Act) against the decision of the Commissioner of Official Languages for failing to release two documents which do not exist in the file.
[2] On 24 March 1995, the applicant filed a complaint pursuant to s. 91 of the Official Languages Act [the "OLA"] with the Office of the Commissioner of Official Languages [the "OCOL"]. He challenged the designation by the Department of National Defence ["DND"]
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of an AS-02 Administration Officer position ["the position"] at the Land Forces Technical Staff Course, located at Royal Military College, Kingston, Ontario, as bilingual CCC- imperative.
[3] On or about 25 June 1995, Mr. Gaetan Sanfacon, OCOL's principal investigator on the applicant's complaint, phoned the applicant to inform him that his preliminary findings concluded that the CCC level of the position was justified, but that the imperative designation of the position was not justified and should be changed to non-imperative. On 31 July 1995, OCOL finalized its preliminary report. On 8 August 1995 the report was issued under the signature of Mr. Gilbert Langelier, then Director, Investigations Division. The report considered that the designation by the DND of the position as bilingual imperative-CCC was warranted and that the complaint was not well-founded. On 24 October 1995, the OCOL issued its final report under the signature of Mr. David Snook, then Group Chief, Investigations Branch, indicating the investigation conclusions were that the designation by DND of the position as bilingual imperative-CCC was warranted and that the complaint was not well-founded.
[4] On 4 December 1997, the applicant filed an originating notice of motion, pursuant to the Privacy Act, with respect to the Commissioner's decision not to release two documents requested by the applicant. On 21 December 1995, the applicant also commenced an application in Federal Court, Trial Division, against DND challenging its designation of the position as bilingual-imperative, pursuant to s. 77 of the OLA.
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[5] The applicant submits that the Court must decide whether the respondent was justified under the provisions of the Privacy Act to refuse his request for a draft working document (the preliminary report), not filed and now destroyed, and for a document (the fax) which the respondent alleges does not exist or may never have existed and, therefore, also not filed.
[6] The applicant submits that the actions of OCOL staff and many of the policies and procedures of the OCOL weaken the overall credibility of the respondent's evidence.The applicant also questions the motives of the respondent in reaching its findings as it did and in destroying the documents at issue herein.
[7] The applicant submits that, pursuant to Rule 81(2), the court should draw an adverse inference from the failure of the respondent to provide affidavit evidence from Mr. Sanfacon. The applicant submits that the evidence demonstrates that the fax of 6 July 1995 did exist and either was withheld from the applicant or destroyed deliberately or negligently by the respondent.The applicant relies in particular on a note-to-file of Mr. Sanfacon as support for his submission on this point.
[8] The applicant submits that OCOL policies and procedures relied upon are disorganized, outdated, vague and contradictory, and that this disorganization makes it difficult to get a clear sense of the law with respect to the issue of the preliminary report. He submits, therefore, that the preliminary report of Mr. Sanfacon could have been official
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when he telephoned the applicant to advise him of its contents and then could have been changed after the phone call using a policy that allows a change in the person who should sign and approve the preliminary report.
[9] The applicant challenges the relevance of several documents that the respondent submits constitute OCOL policy and procedures. The applicant submits that the ComplaintsHandling Procedures Manual was not drafted for the purposes of s. 91 type investigations. The applicant submits that the document dealing with s. 91 complaints is the Policy Bulletin on Complaints under Section 91 of the Official Languages Act. He contends that the document is not applicable to the investigation of the applicant's complaint against DND because none of the 3 individuals indicated therein signed the preliminary report and no delegation of signing authority is provided for in the OCOL's Instrument of Delegation. The applicant submits that the memo from Michel Robichaud, Section 91: Handling Complaints should be given no weight as it is dated more than 1.5 months after the timeframe at issue herein.
[10] More importantly, the applicant submits that the respondent has not demonstrated that the preliminary report was not official when it was communicated to the applicant on 23 June 1995. The applicant submits that Mr. Sanfacon's phonecall to the applicant on that date constituted an official notification of a preliminary finding of the OCOL investigation and relies on the Policy Bulletin on Complaints under Section 91 as support for this contention.
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The applicant submits that the Policy Bulletin does not require anyone other than the OCOL investigator to sign the preliminary report in order for it to be rendered official.
[11] Nevertheless, it is contended that whether the preliminary report as it was communicated to the applicant on 23 June 1995 was official or not official, a copy of that report or draft report should have been retained on file by the OCOL and not destroyed by the respondent. The applicant argues that the draft was unique since it was communicated to the applicant on the initiative of an OCOL officer, and that once the contents of the draft was communicated to him, the applicant should be able to obtain a copy of it under the Privacy Act. The applicant submits that the respondent has failed to follow its guidelines on the maintenance of full documentation on file of the OCOL investigation of the applicant's complaint.
[12] The applicant submits that the respondent's policies indicate that the following should not be in a file: duplication; and drafts of no archival or legal value. The applicant submits that the draft communicated to the applicant on 23 June 1995 is not a duplicate of that released in August as it was penned by a different author and reached an opposite conclusion. The applicant submits that the report communicated on 23 June was of archival and legal value because it was communicated to the applicant. The applicant submits that guidelines in the Treasury Board Manual regarding access to information which state that draft documents, especially when these have been communicated beyond the individual creating them, should be kept on file apply to OCOL.
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[13] The respondent emphasizes that this is a proceeding under s. 41 of the Privacy Act, to review the decision of the Commissioner of Official Languages to refuse to produce documents containing personal information about the applicant which the respondent claims
do not exist, pursuant to s. 16 of the Privacy Act. It submits that this proceeding is not a judicial review of the complaint investigation procedures and policies used by the Commissioner of Official Languages under the OLA, pursuant to s. 18.1 of the Federal Court Act. In this case, the respondent submits that the Access to Information Act and thus the Treasury Board Manual are not applicable to OCOL. The respondent submits that the Court must first be satisfied that the respondent's refusal is authorized under the Privacy Act and second that the respondent did not have a duty or obligation under the Privacy Act to keep the requested documents available for the period of two years as required by the regulations under the Privacy Act.
[14] The respondent submits that the Commission produced 182 pages of the 185 pages from the file which was requested by the applicant. The applicant did not object to not receiving the balance. The respondent submits that under s. 41, the Court must determine whether a refused document, as it existed, contained personal information that should have been released to the applicant. The respondent submits that the Court cannot determine whether the earlier draft preliminary report contained personal information and thus should have been kept on file because that document is not before the Court and was also not before the Privacy Officer. The respondent submits that if the Court cannot make a reasonable inference either way with respect to this matter, it should dismiss the application.
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[15] The respondent further submits that a draft in and of itself has no relevance under the Privacy Act and need only be kept on file for two years if it contains personal information about an applicant., The respondent seeks clarification as to whether a draft must be kept if personal information contained in it is reproduced identically in later documents which are kept on file. The respondent submits that if the personal information is different in the draft version than in the final version or if the personal information in the draft is not reproduced in later versions of the document, there is a duty to retain it on file.
[16] The respondent argues that if the draft document at issue herein contained different personal information than that contained in the final documents, the Commissioner would have a duty to keep the draft version on file for two years.It is contended that most of the information in the draft document was analysis. The respondent submits that the report dated 8 August 1995 contained virtually no personal information and that the personal information it did contain would have been the same or in the earlier draft, dated on or about 25 June 1995. Moreover, the respondent submits that it has thus fulfilled its duty, as the personal information about the applicant contained in the 25 June 1995 document is contained in the 182 pages of documentation that were already provided to the applicant.
[17] The respondent submits that Mr. Sanfacon, the investigator, did not provide an affidavit because he was no longer an employee of the Commissioner's office thus not available to sign an affidavit. Accordingly, the affidavit of his former supervisor, Mr. Charlebois, who was still an employee, was provided.
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[18] The respondent submits that it is unlikely that the fax of 6 July 1995 ever existed. It is submitted that even if that document did exist, it would contain the same information about the applicant as the preliminary report dated 8 August 1995.
[19] Finally, it is argued that the applicant is indirectly challenging the OCOL's Complaint Investigation Procedures and Policies adopted pursuant to the OLA.It is contended that this is a s. 41 application and not a document request under ss. 73(b) and 74 of the OLA.
Analysis
[20] I agree with the respondent that the Commissioner of Official Languages is bound by Treasury Board policies with respect to how federal institutions should implement the Privacy Act.
[21] The preliminary report of June 25, 1995, does not exist. It was destroyed as a draft
document. While no specific evidence of its destruction was provided, the respondent provided the following explanation:
When a draft is provided to a supervisor for comments or approval, the investigator will usually attach the draft on top of the file with a clip or rubber band. The supervisor's comments are written on the draft itself and returned with the file to the investigator. The draft on the investigator's computer is therefore modified and reprinted by the investigator. The process is repeated until the final approved version of the document is signed. The signed version is always kept on file while the earlier draft versions may neither be physically placed on file nor saved as several drafts.
...I cannot say with certainty that this is what happened in File 0511-95-N3, but I believe it most likely did.
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[22] The respondent stated that is what usually happens and there is no reason to suggest otherwise with respect to this "complaint investigation file". Mr. Rogers' request was very broad and in this regard one must be mindful of the, provisions of s. 3 of the Privacy Act as to what constitutes personal information. This of course must be determined upon review by the privacy officers and in this case 182 out of 185 documents were provided. The two documents at issue herein of course were not on file.
[23] This leads me to the non-existent fax. Simply put, Mr. Rogers contends that the fax did exist and was either withheld purposely or destroyed deliberately or negligently. The applicant suggests the fax was not sent on July 6, 1995, but rather it was sent later on July 25, 1995, when the report was finalized. The note to file was never removed and the Commission was criticized by the Privacy Commissioner for this procedure which in his view misled Mr. Rogers that a report had been prepared at that time and he was being denied his rights under the Privacy Act. This, of course, is the missing preliminary report. The Final report was, of course, provided to the applicant (August 8, 1995) which differs in its conclusion from the earlier draft.
[24] Of course, the issue before the Court is somewhat problematic. I am being asked to determine if the preliminary report, as it would have existed, contained personal information that should have been released to the applicant.
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[25] In this case, it is apparent that the illusive document is important since it is the final version of the earlier draft that comes to a different conclusion. In addition, it is relevent to the fax since this is the copy of the document that was faxed on July 31st and thus would have been attached to the fax of July 6th.
[26] The only document for review then is the final report, which obviously does contain some personal information but primarily the report analyses the classification and comes to a conclusion. In essence, it is submitted that the preliminary report would be similar to the final report regarding the personal information but, obviously, with a different conclusion.
[27] This puts the Court in an almost impossible situation. I cannot with any degree of certainty determine if the document contained any personal information whatsoever. As such, the best the Court can do is infer whether the reports may have likely been different with respect to the personal information contained therein. Moreover, I see no reason to disagree with the respondent that if the documents did contain different personal information then the Commission would have had a duty to keep the preliminary report on file.
[28] Mr. Rogers has made a number of allegations with respect to the motives of the respondent which I do not accept. Moreover, I am not satisfied that any adverse inference should be drawn given the failure of Mr. Sanfacon to provide an affidavit rather than his immediate supervisor, Mr. Charlebois.
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[29] With respect to the alleged fax of July 6, 1995, I decline to draw the inferences advanced by the applicant. I do not accept the arguments as to intention or deliberate destruction of the alleged fax as such inferences on this evidence would be unreasonable.
[30] It is not necessary for me to determine whether the preliminary report was official when it was communicated to Mr. Rogers. On the evidence before me, it would appear reasonable on these facts and in light of the submissions before the Court that the respondent did not have a duty to keep the preliminary report on file for two years pursuant to the regulations under the Privacy Act.
[31] However, it is apparent to the Court that a preliminary report or draft report that contains personal information must be retained for two years, if the personal information contained in such a document is not substantially identical in later versions of the same document. Conversely, it is evident that if the personal information is substantially identical the drafts need not be retained on file. If the personal information in the earlier version is different than in the final version, then there is a duty to keep it. In the case before me, I have no reasonable basis to conclude that the personal information in the preliminary report, despite the different conclusion contained in the final report, was substantially different than the personal information in the final report dated August 8, 1995.
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[32] The applicant further requested leave to file an application for judicial review, if necessary. I decline to do so. The applicant is not precluded from filing a motion for an extension of time to file an application for judicial review if he so decides.
[33] Accordingly, the application is dismissed. Despite the outcome, and given the request of the respondent in this novel matter before the Court, the respondent shall have his costs fixed at $750.00.
Howard I. Wetston
.fudge
Ottawa, Ontario December 30, 1998
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-2634-97
STYLE OF CAUSE: DON B. ROGERS v. THE COMMISSIONER OF OFFICIAL LANGUAGES
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 18, 1998
REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE WETSTON
DATED: December 30, 1998
APPEARANCES:
Mr. Don B. Rogers FOR THE APPLICANT
Mr. Daniel Mathieu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Don B. Rogers FOR THE APPLICANT Kingston, Ontario
Office of the Commissioner of Official Languages FOR THE RESPONDENT Ottawa, Ontario