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LI T I G AT ION BY MURRAY RANKIN 'Work product information' and federal privacy laws While not particularly complex, there is still no real clarity on the issue under PIPEDA. others. For example, the extraterritorial reach of the federal Personal Information Protection and Electronic Documents Act has been very controversial. Drawing lines between circumstances in which an individual's express consent will be re- quired and where implied consent will suffice is often tricky to say the least. However, some issues have been made E more difficult than they really are. The case of "work product information" is a prime example. The bottom line: to be "personal information" under PIPEDA, the information at issue must be "about" an identifiable individual. Basic business information is excluded from the scope of this defined term. But what about information that relates to a person's business or professional dealings but is not "about" that individual at all, or that which discloses information that reveals nothing that most of us would consider "personal?" Should that kind of infor- mation be protected under the act? I don't think so. Indeed, I think to take the opposite position trivializes the im- portant values at stake in modern pri- vacy legislation. It was not that long ago that the former privacy commissioner of Canada decided that prescriptions writ- ten by doctors were not "personal infor- ver since privacy legisla- tion has applied to the private sector, some of the policy and legal issues it has raised have proven to be more difficult than mation about the physician." Therefore, although prescription information about identifiable patients would undeniably be their personal information, which prescriptions a doctor chooses to write are simply not personal information at all — any more than the books a profes- sor chooses to assign in a course or the plans an architect draws up or a lawyer's legal opinion constitute her "personal information." In each case, this is their "work product." Where is the personal information in these examples? One would have thought that once the former privacy commissioner reached this conclusion the issue would have been closed. Indeed, in the British Co- lumbia Personal Information Protection Act, which the federal cabinet declared "substantially similar" to PIPEDA, there is an explicit exclusion for "work product information." One would have thought any remaining doubts would have been dispelled in 2006, when the Federal Court of Appeal had to consider whether the tape recordings of communications between air traffic controllers and flight specialists with air crew had to be dis- closed under the Access to Information Act. There, a federal board denied access to these records, in part because it was claimed that they constituted "personal information." Justice Alice Desjardins, writing for a unanimous bench that also included Chief Justice John Richard and Justice Maxwell Evans, concluded that the information in the records simply 36 SEPTEMBER 2008 www. C ANADIAN Law ye rmag.com did not attract privacy rights. Here is how she put it in Canada (Information Com- missioner) v. Canada (Transportation Ac- cident Investigation and Safety Board): "The information at issue is not 'about' an individual. . . . [The] content of the communications is limited to the safety and navigation of aircraft, the general op- eration of the aircraft, and the exchange of messages on behalf of the public. They contain information about the status of the aircraft, weather conditions, matters associated with air traffic control, and the utterances of pilots and controllers. These are not subjects that engage the right to privacy of individuals. "The information contained in the records at issue is of a professional and non-personal nature. The information may have the effect of permitting or leading to the identification of a person. It may assist in a determination of how he or she has performed his or her task in a given situation. But the information does not thereby qualify as personal in- formation. It is not about the individual, considering that it does not match the concept of 'privacy' and the values that concept is meant to protect. It is non- personal information transmitted by an individual in job-related circumstances." The Supreme Court of Canada denied leave to appeal this judgment on April 5, 2007. The judgment has never been dis- turbed. Some may faintly argue that, since this decision deals with the definition of personal information imported from the