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Air Traffic Control communications do not fall under the financial, commercial, scientific or technical information exemption because they do not constitute commercial or technical information. They are also not protected under the Privacy Act since communications themselves are not personal information.
This is an appeal of a decision of the Federal Court dismissing four applications for judicial review brought by the Information Commissioner of Canada under Section 42(1)(a) of the Access to Information Act (ATI Act) (para. 1). The records at issue contained communications relating to four air occurrences that were subject to distinct investigations and public reports by the Safety Board. In each case, the requesters (three journalists and a legal representative of the estate of the deceased in one of the air accidents) sought access to recordings and/or transcripts of air traffic control communications (ATC communications) recorded by NAV CANADA, now under the control of the Safety Board (para. 2). The government claimed that privacy exception 20(1)(b) in the ATI Act which protects confidential commercial, scientific or technical information supplied by a third party prevented disclosure and that the information was “personal” under the Privacy Act.
The Court rejected NAV CANADA’s claim of exemption from disclosure. Para. 20(1)(b) of the ATI Act provides that certain types of financial, commercial, scientific or technical information consistently treated as confidential by a third party and handed by said party to a government institution are exempted from disclosure (para. 66). Navigation services for a fee did not constitute commercial or technical information (para. 69). While parts of the requested records could be technical, the entire record was not rendered technical just because a few parts could be (para. 70). In addition, the record was not confidential, as required by the statute (paras. 71-73).
The Federal Court erred in concluding that the information requested constituted “personal information” under the Privacy Act. Privacy connotes concepts of “intimacy, identity, dignity, and integrity of the individual” (para. 52). The information sought by requesters was not about particular individuals and the content of the communications did not involve subjects that engaged an individual’s right to privacy (para. 53). The information was professional in nature and the values that the Privacy Law is meant to protect were not at stake (para. 54). The ATC communications, when combined with other information, could be used to evaluate performance and delineate responsibilities in the accidents. However, absent any real personal content, that fact alone did not render the information private (para. 55).
Judgment of the Court.
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