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Document
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PO-2291
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File #
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PA-030078-1
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Institution/HIC
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Ministry of Public Safety and Security
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Summary
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NATURE OF THE APPEAL: The Ministry of Public Safety and Security (now the Ministry of Community Safety and Correctional Services) (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to information pertaining to a criminal code offence involving the requester. The Ministry responded to the request by granting partial access to the responsive records, and denying access to the remaining records on the basis of the exemptions provided by the following sections of the Act : 49(a) (discretion to refuse requester’s own information), 14(1)(e) (endanger life or safety), 14(1)(l) (facilitate commission of an unlawful act), 14(2)(a) (law enforcement), 19 (solicitor-client privilege) and 49(b) (invasion of privacy) with reference to sections 21(2)(f) and 21(3)(b). The Ministry also identified that some of the information in the records was not responsive to the request. The requester, now the appellant, appealed the Ministry’s decision. During the mediation stage, an additional responsive record was located, and the Ministry granted access to portions of it. The appellant confirmed that he was not pursuing access to the information severed from this record, and it is not at issue in this appeal. Also during mediation, the appellant confirmed that he was pursuing access to the witness statements (pages 14-27) and not to the information withheld under section 14(1)(l). The scope of the appeal was therefore narrowed to the witness statements identified as pages 14-27, which were withheld in whole or in part. The mediator sent out a Mediator’s Report, identifying for the parties the issues and the records remaining at issue. After the Mediator’s Report was sent out, additional responsive records were identified. The Ministry then issued a supplementary decision letter, referring to four additional records (transcripts of statements) and denying access to these records on the basis of section 49(b) with reference to sections 21(1)(f), 21(2)(e), 21(2)(f) and 21(3)(b). The Mediator’s report was amended to include these records as records at issue in this appeal. Mediation did not resolve the issues, and this file was transferred to the adjudication stage of the process. I sent a Notice of Inquiry to the Ministry, initially, and the Ministry provided representations in response. In its representations, the Ministry identifies that it is no longer relying on the exemption in section 14(2)(a), and that section is no longer at issue in this appeal. I then sent the revised Notice of Inquiry, along with the non-confidential portions of the Ministry’s representations, to the appellant. The appellant provided brief representations in response. RECORDS: The records remaining at issue in this appeal are: 1) Pages or portions of pages 14 – 27 (witness statements), and 2) Pages 29 – 226 (four additional statements). DISCUSSION: PERSONAL INFORMATION Under section 2(1) of the Act , personal information is defined, in part, to mean recorded information about an identifiable individual, including information relating to the individual's age, sex, marital or family status [section 2(1)(a)], medical, psychiatric, psychological, criminal, or employment history [section 2(1)(b)], address or telephone number [section 2(1)(d)], the personal opinions or views of that individual except where they relate to another individual [section 2(1)(e)], the views or opinions of another individual about the individual [section 2(1)(g)], or 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 [section 2(1)(h)]. The Ministry submits that the information remaining at issue contains the types of personal information set out in the sections of the Act referred to above, and that it relates to the appellant and other identifiable individuals. The appellant does not directly address this issue; however, his representations suggest that he is of the view that the records contain his personal information. Based on my review of the contents of the records, I find that all of the records remaining at issue contain the personal information of the appellant and other identifiable individuals within the meaning of that term in section 2(1). INVASION OF PRIVACY Section 47(1) of the Act gives individuals a general right of access to their own personal information held by an institution. Section 49 provides a number of exemptions from disclosure that limit this general right. Under section 49(b), where a record relates to the requester but disclosure of the information would constitute an unjustified invasion of another individual's personal privacy, the institution may refuse to disclose that information to the requester. Section 49(b) is a discretionary exemption. Even if the requirements of section 49(b) are met, the institution must nevertheless consider whether to disclose the information to the requester. In this case, section 49(b) requires the Ministry to exercise its discretion in this regard by balancing the appellants' right of access to their own personal information against other individuals' right to the protection of their privacy. Sections 21(1) through (4) of the Act provide guidance in determining whether disclosure would result in an unjustified invasion of an individual's personal privacy under section 49(b). Sections 21(1)(a) through (e) provide exceptions to the personal privacy exemption; if any of these exceptions apply, the information cannot be exempt from disclosure under section 49(b). Section 21(2) provides some criteria for determining whether the personal privacy exemption applies. Section 21(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy. Section 21(4) lists the types of information whose disclosure does not constitute an unjustified invasion of personal privacy. The Divisional Court has ruled that once a presumption against disclosure has been established under section 21(3), it cannot be rebutted by either one or a combination of the factors set out in section 21(2). A section 21(3) presumption can be overcome, however, if the personal information at issue is caught by section 21(4) or if the "compelling public interest" override at section 23 applies ( John Doe v. Ontario (Information and Privacy Commissioner ) (1993), 13 O.R. (3d) 767). If none of the presumptions in section 21(3) applies, the institution must consider the factors listed in section 21(2), as well as all other relevant circumstances. The Ministry relies on section 49(b) in conjunction with section 21 to support its denial of access to the records. More specifically, the Ministry relies on the "presumed unjustified invasion of personal privacy" at sections 21(3)(b) and 21(3)(d) and the factor favouring privacy protection at section 21(2)(f). The appellant does not specifically refer to a particular section of the Act ; however, he refers to his interest in obtaining access to the records to assist in other court proceedings. In my view he is raising the factor in section 21(2)(d) of the Act . These sections read: 49. A head may refuse to disclose to the individual to whom the information relates personal information,
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Legislation
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FIPPA
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21(3)(b)
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21(3)(d)
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49(b)
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Subject Index
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Signed by
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Frank DeVries
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Published
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Jun 14, 2004
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Type
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Order
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