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Document
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PO-2026
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File #
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PA-010429-1
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Institution/HIC
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Ministry of Correctional Services
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Summary
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NATURE OF THE APPEAL: This is an appeal from a decision of the Ministry of Correctional Services (the Ministry, now the Ministry of Public Safety and Security), under the Freedom of Information and Protection of Privacy Act (the Act ). As background, the requester (now the appellant) was the victim of an assault by another individual (the affected party). The affected party was convicted of the offence of assault causing bodily harm, and received a suspended sentence. The appellant then started a civil action against the affected party in Toronto Small Claims Court, seeking damages for assault. However, he was unable to serve his claim as he did not have a current address for the affected party. The appellant accordingly made a request to the Ministry for the address of the affected party, referring to a named probation officer at a specified location of the Ministry. The Ministry located a one-page record, which contained the information sought. In its decision, the Ministry denied access to the record, relying on the mandatory exemption under section 21(1) of the Act (unjustified invasion of personal privacy), with reference to the factors in sections 21(2)(e) (exposure to pecuniary or other harm), 21(2)(f) (highly sensitive) and 21(2)(g) (unlikely to be accurate or reliable). The appellant appealed the decision of the Ministry. In his letter of appeal, he has raised the applicability of section 21(2)(d) of the Act (fair determination of rights), as well as section 23 (public interest in disclosure). During mediation through this office, the possible application of section 49(b) was also raised, since it appears that the record may also bear information about the appellant. Also during mediation, the affected party was contacted to determine whether he objected to the release of his address. The affected party has objected to disclosure of this information. I sent the Notice of Inquiry to the Ministry, initially, inviting its representations on the facts and issues raised by the appeal. Its representations were shared with the appellant, with the exception of certain portions which were withheld for confidentiality reasons. The appellant has also submitted representations in this appeal. RECORD: The record at issue is a one-page document, which contains, among other things, the address of the affected party. The appellant seeks only this address. DISCUSSION: PERSONAL INFORMATION In order to assess whether sections 21(1) and/or 49(b) apply, it is necessary to determine whether the records contain personal information, and to whom that personal information relates. Under section 2(1) of the Act , "personal information" is defined as 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. I find that the record contains personal information of the affected party, in that it sets out his home address. There is also some personal information of the appellant. INVASION OF PRIVACY Under section 49(b), where a record contains the personal information of both a requester and of another individual and the institution determines that the disclosure of the information would constitute an unjustified invasion of the other individual's personal privacy, the institution has the discretion to deny the requester access to the information in the record. Sections 21(2) and (3) of the Act provide guidance in determining whether disclosure would result in an unjustified invasion of personal privacy. Section 21(2) provides some criteria for the head to consider in making this determination. Section 21(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy. In its representations, the Ministry has referred to the criteria described in sections 21(2)(e) and (f). The appellant submits in general that although the disclosure of the address is an invasion of privacy, it is not an unjustified invasion and is in the general public interest. The appellant relies on section 21(2)(d) of the Act . Section 21(2)(e) - pecuniary harm Section 21(2)(e) provides: A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether, the individual to whom the information relates will be exposed unfairly to pecuniary or other harm; The Ministry submits that disclosure of the information at issue will expose the affected party unfairly to pecuniary harm. The appellant contends that if there are monetary consequences, these will be determined by the courts by way of a public and fair trial. Therefore, if the affected party is held responsible for damages, it cannot be unfair. I agree with the appellant. I find that section 21(2)(e) is not applicable in that it cannot be concluded that any exposure to pecuniary harm which the affected party may face will be unfair: see Orders M-746 and MO-1453. Section 21(2)(f) - highly sensitive Section 21(2)(f) provides: A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether, the personal information is highly sensitive; The Ministry submits that the exempted information is highly sensitive and its release to a third party would cause personal distress to persons or the family of those named in the record. The appellant disputes that this factor applies. I am satisfied that this is a relevant factor. For information to be considered highly sensitive, it must be found that disclosure of the information could reasonably be expected to cause excessive personal distress to the subject individual (Orders M-1053, P-1681, PO-1736). This factor has been found to apply, for example, to a request for the names of police officers charged with professional misconduct (Order M-1053), in circumstances involving the identity of an individual with respect to a specific birth registration (Order P-1681), and to a request for the names and addresses of deceased persons and names of possible inheritors (Order PO-1736). Assistant Commissioner Mitchinson in Order P-1618 found that the personal information of "complainants, witnesses or suspects" in their contacts with the police is highly sensitive. In Order MO-1436, to which I directed the parties' attention in this appeal, former Adjudicator Dawn Maruno found that disclosure of the name and address of a person alleged to have assaulted the requester could reasonably be expected to cause excessive personal distress to the individual. Further, she found the factor in section 14(2)(f) to be a compelling factor weighing heavily against disclosure. I agree with the reasoning in Order M
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Legislation
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FIPPA
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21(2)(d)
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21(2)(e)
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21(2)(f)
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49(b)
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Section 23
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Subject Index
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Signed by
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Sherry Liang
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Published
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Jun 26, 2002
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Type
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Order
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