The Information Commissioner of Canada v. Transportation Accident Investigation and Safety Board, Nav Canada and The Attorney General of Canada, 2005 FC 384, Court files T-465-01, T-888-02, T-889-02, T-650-02, Snider J.,

March 18, 2005

These were four (4) applications for judicial review brought pursuant to paragraph 42(1)(a) of the Access to Information Act (the "ATIA").

The Information Commissioner sought judicial review of the decisions of the Executive Director of the Canadian Transportation Accident Investigation and Safety Board (hereinafter, the "TSB") to refuse to disclose requested records. In addition, the Information Commissioner sought an order declaring that subsection 9(2) of the Radiocommunication Act, R.S.C. 1985, c. R-2, infringes paragraph 2(b) of the Canadian Charter of Rights and Freedoms.

The records at issue consist of tapes and transcripts of communications between air traffic control and aircraft personnel ("ATC communications") with respect to the provision of aeronautical services in relation to four separate airplane collisions or crashes, namely the Clarenville Occurrence (T-465-01), the Penticton

Occurrence (T-650-02), the Fredericton Occurrence (T-888-02), and the St. John’s Occurrence (T-889-02). ATC communications are merely an exchange of information related to the provision of aeronautical services.

In each case, TSB maintained the position that ATC communications are personal information within the meaning of subsection 19(1) of the ATIA and that disclosure of the ATC communications is not warranted under subsection19(2) of the ATIA. Nav Canada intervened in these applications to raise and argue third-party exemptions pursuant to paragraphs 20(1)(b) and (d) of the Act. More specifically, Nav Canada argued that the ATC communications either fit the criteria in paragraph 20(1)(b), either as commercial or technical information, or are records the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party.

The issues as defined by the court are as follows:

1. Do ATC communications constitute "personal information" as defined in section 3 of the Privacy Act, thus preventing disclosure under subsection 19(1) of the ATIA?
2. Did the TSB err in determining that disclosure of the ATC communications was not warranted by subsection 19(2) of the ATIA?
3. Does subsection 20(1) of the ATIA prohibit the disclosure of ATC communications?
4. Can the personal information in the ATC communications reasonably be severed from the remaining information pursuant to section 25 of the ATIA?
5. Does subsection 9(2) of the Radiocommunication Act infringe paragraph 2(b) of the Charter and, if so, is such an infringement justified under sectiion1 of the Charter?

1. Do ATC communications constitute "personal information" as defined in section 3 of the Privacy Act (ergo subsection 19(1) of the ATIA)?

The court first stated that there are three criteria for meeting the definition of personal information: a) the information must be "about" an individual; b) the individual must be identifiable; and c) the information must be recorded.

The court agreed with the Information Commissioner that the records at issue are recordings of transactions and that the information contained therein is almost exclusively technical. It was held that the information "when viewed in context" may be "personal information or information about the individuals", in this case, these individuals are either: i) ground crew / flight specialists and ii) air crew.

The court went on to determine "the nature of the communications" by considering the purpose for which the communications are made or used. She noted that, in the event of an aviation occurrence, ATC communications become very important, i.e. "in the hands of the TSB, these tapes become much more than a "transaction; they are used as part of the TSB investigation". It indicated that the TSB, in the course of an investigation, must examine how individuals involved did their jobs and/or contributed to the occurrence. The court concluded that ATC communications are "about" the individuals involved in 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."

But are these individuals identifiable? The court concluded that, even though names of individuals are not used, these people can be identified by knowing the aircraft, the location and operating initials of the controller and voices. The court concluded:

"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 section 3 of the Privacy Act."

The Information Commissioner’s argument that it is relevant to consider whether an individual has "a reasonable expectation of privacy, when determining whether or not information constitutes personal information", was rejected. In the court’s view, "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 subsection 19(2) of the ATIA. But, it is not relevant for a determination of whether information is "personal information" as contemplated by section 3."

Further, the court stated that, if there was a requirement that there was a reasonable expectation of privacy, such a reasonable expectation would be found in the circumstances of the case. It held that "the parties to the communications – would not expect strangers to have access to the ATC communications in the manner sought by the Commissioner", even though these individuals would expect ATC communications to be used in the investigation and that the results of the investigation could make reference or include the ATC communications. At paragraph 36, the court wrote: "The information was not obtained by the TSB for the purposes of distributing it to the public at large. . . "

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

The court considered whether the information ought to be released pursuant to subsection 19(2) of the ATIA, specifically whether it should be released because it is "publicly available".

The court rejected the Information Commissioner’s argument that because parties can intercept or listen to the communications they are publicly available. Why? First, the court rejected the commissioner’s argument that listening to ATC communications through scanners is legal. Second, it stated that there was no evidence that these particular ATC communications were heard (except for the Clarenville incident).

Third, it was held that if information is heard one time it does not mean that the information is in the public domain, i.e. "for information to be in the public domain, it must be available on an ongoing basis for use by the "public". "Information that is listened to once is not, without evidence of further ongoing availability, in the public domain or publicly available."

The court further indicated that, "even if I conclude that they were "publicly available" at the time they were made, they are not now available for review in the public domain."

With regard to the Clarenville Occurrence, the court acknowledged that the ATC audio recording and transcript were disclosed twice by the TSB in response to ATIA requests made by two different journalists. The ATC communications in question were part of a CTV broadcast and were published in a book. It was further acknowledged that the dissemination of the ATC communications with respect to the Clarenville occurrence has been widespread. The Clarenville ATC communications were found to be publicly available.

Nonetheless, the court stated it was reasonable for the TSB to exercise its discretion not to release the information under subsection 19(2) although the information was deemed to be publicly available.

With regard to the fact that the ATC communications in respect of the Penticton Occurrence were before the Supreme Court of B.C. in Sabourin Estate v. Watterodt Estate, 2004 BCSC 243, and excerpts from the transcript were included in the judgement, the court held that this does not render the information "publicly available", given, inter alia, that "it may well be that the audio recording and transcripts themselves are subject to a confidentiality order."

Paragraph 19(2)(c) of the ATIA?

The court rejected the commissioner’s argument that, because the TSB is authorized to release the information under the TSB Act, paragraph 8(2)(a) authorizes its release under the ATIA. It held that a statutory provision giving a government institution the authorization to disclose information for the purposes of its enabling legislation does not obligate the institution to release the information to the public at large: "neither paragraph 8(2)(a) or (b) is applicable to authorize release of the information in the circumstances before me."

Sub-paragraph 8(2)(m)(i) of the ATIA?

The court rejected the Information Commissioner’s argument that, pursuant to sub-paragraph 8(2)(m)(i) of the Privacy Act, the release is authorized because "the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure". Result: the TSB took into account a wide range of factors, none of which were irrelevant or extraneous to the statutory purpose, including the availability of the information to persons listening with scanners. The TSB was found to have properly exercised its discretion.

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

Having determined that the ATC communications in issue fit within the definition of "personal information" in subsection 19(1) and that there was no error in the exercise of discretion under subsection 19(2), the court determined that there was no need to consider whether the information was either commercial or technical information warranting exemption under paragraph 20(1)(b) of the ATIA.

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

The court concluded that all of the ATC communications constituted "personal information" and, therefore, section 25 did not apply so as to require that any information be severed.

5. Does subsection 9(2) of the Radiocommunication Act infringe paragraph 2(b) of the Charter and, if so, is such an infringement justified under section 1 of the Charter?

Subsection 9(2) of the Radiocommunication Act prohibits the use and/or dissemination of radiocommunication aired on public frequencies, in other words, of information otherwise publicly available. The constitutionality of this section was not ruled upon. The court held that subsection 9(2) was only one of the factors considered by the TSB when it decided to refuse to disclose the requested information and that therefore "the constitutional issue raised is not properly the object of these proceedings."

The four (4) applications for review were dismissed.

The Information Commissioner is appealing from Madam Justice Snider’s decision (A-165-05).