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Document
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P-828
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File #
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P-9400549
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Institution/HIC
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Ministry of Community and Social Services
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The appellant has requested a copy of the final report that resulted from an investigation conducted in 1993-1994 by the Ministry of Community and Social Services (the Ministry) of a home for the developmentally handicapped (the Home). The report is a 12-page document dated January 28, 1994. The Home is publicly funded through the Ministry. The investigation was conducted to determine if there were concerns about the conduct of a former employee. The investigation also examined the processes in place within the organization and the Ministry to respond to various allegations. The requester is a newspaper reporter with an interest in the operations of the Home. The Ministry relies on the following exemption to withhold the entire report: invasion of privacy - section 21(1). The requester appealed the Ministry's decision denying her access to the report. During mediation of the appeal, the appellant indicated that she was not seeking access to the names of clients or any other individuals mentioned in the report. She also maintained that there exists a compelling public interest in the disclosure of the balance of the report. A Notice of Inquiry was sent to the Ministry, the appellant and three individuals who appeared to have an interest in the disclosure of the information contained in the report (the affected persons). For ease of reference, I will refer to these individuals as affected persons 1, 2 and 3. Representations were received from the appellant, the Ministry and affected persons 1 and 2. The former employee, who would also have an interest in the disclosure of the information contained in the report could not be located for the purposes of notification. DISCUSSION: INVASION OF PRIVACY Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual. The report does not contain the names of any individuals. As I have noted, the appellant does not seek access to names. However, the report does contain information which could serve to identify all three affected persons as well as the former employee. The report also contains some information related to affected persons 1 and 2 in their professional capacity and thus does not qualify as their personal information. The report does not contain the personal information of any clients. Once it has been determined that a record contains personal information, section 21(1) of the Act prohibits the disclosure of this information except in certain circumstances. Sections 21(2), (3) and (4) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of personal privacy. Where one of the presumptions in section 21(3) applies to the personal information found in a record, the only way such a presumption against disclosure can be overcome is if the personal information falls under section 21(4) or where a finding is made that section 23 of the Act applies to the personal information. If none of the presumptions in section 21(3) apply, the Ministry must consider the application of the factors listed in section 21(2) of the Act , as well as all other circumstances that are relevant in the circumstances of the case. The Ministry maintains that some of the personal information about the former employee relates to employment history and personnel evaluations and thus the presumptions in sections 21(3)(d) and (g) apply. The Ministry also suggests that these presumptions apply as the report contains the "personnel history" of affected person 3. I do not agree. The employment-related information may be more accurately characterized as a job description, rather than employment "history". The references in the report to work performance merely discuss documentation and follow-up and do not contain any information of an evaluative nature. Therefore, I find that none of the presumptions in section 21(3) of the Act apply. As far as the factors set out in section 21(2) are concerned, the Ministry claims that the following considerations weigh in favour of privacy protection: the personal information is highly sensitive - section 21(2)(f); the personal information has been supplied by the individual to whom the personal information relates in confidence - section 21(2)(h); and the disclosure would unfairly damage the reputation of any person referred to in the record - section 21(2)(i). The appellant maintains that disclosure of at least some of the report is desirable for the purpose of subjecting the activities of the government of Ontario and its agencies to public scrutiny (section 21(2)(a)) and that disclosure may promote public health and safety in "the spirit" of section 21(2)(b). She also claims that section 21(2)(i) is inapplicable as the damage to the reputation of the former employee has already occurred in view of the public reports on his activities. I will first consider the personal information of affected person 3. I find that it is highly sensitive and that disclosure would unfairly damage her reputation. I have, however, been provided with no evidence that she supplied the information contained in the report in confidence under section 21(2)(h) of the Act . I will now consider the personal information of the former employee. The Ministry could not and did not contact this individual during the investigation which resulted in the creation of the report. Accordingly, section 21(2)(h) has no application as he himself did not supply his personal information. In addition, I do not believe that disclosure would unfairly damage the reputation of this individual as much of it is already in the public domain and has already been admitted to publicly by him. However, I do believe that disclosure of certain portions of his personal information would cause excessive personal distress and thus can be considered to be "highly sensitive" within the meaning of section 21(2)(f) of
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Legislation
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Jan 09, 1995
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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