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Document
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PO-1776-R
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File #
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PA-000133-1
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Institution/HIC
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Ministry of the Attorney General
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Summary
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BACKGROUND:
On December 17, 1998, I issued Reconsideration Order R-980015 in which I found that the
discretionary exemption found in section 20 of the Freedom of Information and Protection of
Privacy Act (the Act) did not apply to Records 2-3, 3-1 to 3-6, 3-9 to 3-13, 3-15 to 3-19, 4-2 to 4-4,
4-9, 4-15 to 4-16 and 4-33 to 4-34. These records were, accordingly, ordered disclosed to the
appellant. The Ministry of the Attorney General (the Ministry) then brought an application for
judicial review of this decision and on March 17, 1999, Adjudicator Holly Big Canoe ordered that
Reconsideration Order R-980015 be stayed pending the final disposition of the application for
judicial review. The stay was granted with the consent of the appellant.
In another decision released on December 2, 1999, Ontario (Minister of Labour) v. Big Canoe,
[1999] O.J. No. 4560 (C.A.), the Court of Appeal for Ontario considered the appropriate test to be
applied in situations where sections 14(1)(e) or 20 of the Act have been claimed. Subsequently, on
March 1, 2000 I invited the parties to this appeal to make further submissions on the impact which
that decision may have on the pending application for judicial review of Reconsideration Order
R-980015. The appellant did not provide any representations. One of the affected persons chose to
rely on his/her submissions made in support of his/her request for reconsideration of Order P-1538
and his/her response to the subsequent Notice of Inquiry which led to the issuance of
Reconsideration Order R-980015.
DISCUSSION:
DANGER TO HEALTH OR SAFETY
In Reconsideration Order R-980015, I found that the affected person resisting disclosure had not
provided me with sufficient evidence linking the disclosure of the information contained in the
records to a threat to his/her health or safety. In the final paragraph of the decision, I found that
Athere does not exist a reasonable likelihood of a serious threat to the personal health or safety of
any of the affected persons.@ [my emphasis] The test which I applied, adopting the language used by
Adjudicator Big Canoe in Order P-588, was whether the parties resisting disclosure had established
Aa clear and direct linkage between disclosure of the records and a serious threat to the safety or
health of an individual.@
In Ontario (Minister of Labour) v. Big Canoe, the Court of Appeal for Ontario took a somewhat
different view as to the appropriate test to be applied in circumstances where the exemptions in
sections 14(1)(e) or 20 have been claimed. At paragraph 25 of its decision, the Court held that:
The expectation of harm must be reasonable, but it need not be probable. Section
14(1)(e) requires a determination of whether there is a reasonable basis for
concluding that disclosure could reasonably be expected to endanger the life or
physical safety of a person. In other words, the party resisting disclosure must
demonstrate that the reason for resisting disclosure is not a frivolous or exaggerated
expectation of endangerment to safety. Similarly, section 20 calls for a
demonstration that disclosure could reasonably be expected to seriously threaten the
safety or health of an individual, as opposed to there being a groundless or
exaggerated expectation of a threat to safety. Introducing the element of probability
[IPC Order PO-1776-R/April 28, 2000]
- 2 -
in this assessment is not appropriate considering the interests that are at stake,
particularly the very significant interest of bodily integrity. It is difficult, if not
impossible, to establish as a matter of probabilities that a person=s life or safety will
be endangered by the release of a potentially inflammatory record. Where there is a
reasonable basis for believing that a person=s safety will be endangered by
disclosing a record, the holder of that record properly invokes ss. 14(1)(e) or 20 to
refuse disclosure.
This restatement of the test under section 20 differs significantly from that which I applied in my
decision in Reconsideration Order R-9800015. In my view, the Court of Appeal has recognized that
in situations where personal safety or bodily integrity are in issue, so long as the expectation of harm
is reasonable in the sense that it is not groundless, exaggerated or frivolous, section 20 will be found
to apply. I adopt the test enunciated by the Court of Appeal for the purposes of this reconsideration.
At page 22 of Reconsideration Order R-980015, I referred to the extensive submissions of one of the
affected persons on the application of section 20 to the information contained in the records. The
affected person submitted that:
Y there exists a reasonable expectation of harm to him/her personally should the
information contained in Records 3-1 to 3-6 be disclosed to the appellant. As noted
above, the affected person submits that the organization on whose behalf the request
was made is a violent and dangerous group with a history of reprisals and threats
against individuals who have publicly denounced it.
At page 23 of the decision, I again referred to the submissions of the affected person with respect to
his/her concerns about his/her health or safety as follows:
[T]he affected person has provided me with extensive evidence which he/she argues
demonstrates that the organization represented by the appellant has in the past acted
in a violent and threatening fashion against those who have spoken out against it.
In support of these assertions, the affected person provided me with extensive references to
newspaper articles and information gleaned from various internet web sites, including one operated
by an organization associated with the appellant, which indicate that the organization is indeed
violent and dangerous. Many of the records addressed in this appeal also support the contention of
the affected person that the organization associated with the appellant has a history of violent and
anti-social behaviour, particularly against those who choose to speak out against it. Assaults,
break-ins and even the planting of an explosive devise outside the home of an individual opposed to
this organization are documented in the material provided to me by the affected person.
[IPC Order PO-1776-R/April 28, 2000]
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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Apr 28, 2000
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Type
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Reconsideration Order
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Orders and Reports Considered
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R-980015
P-1538
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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