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Document
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P-984
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File #
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P-9400823
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Institution/HIC
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Ministry of the Attorney General
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Summary
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NATURE OF THE APPEAL: The Ministry of the Attorney General (the Ministry) received a request from a member of the media for access to all information concerning the establishment of a Local Area Network in the Ministry's Computer and Telecommunications Branch. More specifically, the requester sought access to information concerning a named individual, including his job classification and work duties, the company through which he was hired, his access to the Ministry's computer records, information relating to the circumstances under which he was hired and terminated, details of complaints and investigations regarding his employment, and information regarding any changes in procedures regarding the hiring of contractual employees after the named individual was let go. The Ministry refused to confirm or deny the existence of the requested records pursuant to section 21(5) of the Act . The requester appealed the Ministry's decision and claimed that there was a compelling public interest in the disclosure of the records. A Notice of Inquiry was sent to the Ministry, the appellant, the individual named in the request (the affected person) and a consulting company (the company). Representations were received from all parties. DISCUSSION: EXISTENCE OF RECORD Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual. In my view, records of the nature requested, if they exist, would contain personal information of the affected person and other individuals. Section 21(5) states: A head may refuse to confirm or deny the existence of a record if disclosure of the record would constitute an unjustified invasion of personal privacy. A requester in a section 21(5) situation is in a very different position than other requesters who have been denied access under the Act . By invoking section 21(5), the Ministry is denying the requester the right to know whether a record exists, even when one does not. These sections provide the Ministry with a significant discretionary power which I feel should be exercised only in rare cases. An institution relying on this section must do more than merely indicate that the disclosure of the records would constitute an unjustified invasion of personal privacy. An institution must provide sufficient information and reasoning to satisfy me that disclosure of whether records exist would in itself convey information to the requester, the nature of which is such that its disclosure would constitute an unjustified invasion of personal privacy (Order P-339). The Ministry states that confirming the existence of a record would result in the unjustified invasion of another individual's personal privacy. I do not agree. By simply confirming that records responsive to the request exist, the Ministry would not be compromising the privacy interests of any individual. In my view, the Ministry has failed to establish that disclosure of the mere existence of the requested records would result in an unjustified invasion of personal privacy, and I find that the requirements of section 21(5) have not been met. Accordingly, I find that section 21(5) does not apply in the circumstances of this appeal. In order to dispose of this appeal, it is necessary for me to confirm that records do in fact exist. The records at issue are proposals submitted by the consulting company (which includes resumes, references and per diem rates of proposed candidates for the position), a tracking sheet for the tender, an evaluation summary of the proposals, an Ontario government purchase order, interview results and score sheets, invoices and time sheets, a list of invoices in question, a log of the accumulated cost of the consultant, a memo related to the performance of the affected person and a critical issue sheet. INVASION OF PRIVACY Section 21 of the Act is a mandatory exemption which prohibits the disclosure of personal information to any person other than the individual to whom the information relates, except in the circumstances listed in sections 21(1)(a) through (f) of the Act . Section 21(1)(f) reads: A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except, if the disclosure does not constitute an unjustified invasion of personal privacy. Sections 21(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of personal information would constitute an unjustified invasion of personal privacy. The Ministry claims that the records relate to the employment history, a personal evaluation and the financial activities of identifiable individuals, as well as an indication of the affected person's ethnic origin and, therefore, the presumptions found in sections 21(3)(d), (f), (g) and (h) apply. The Ministry also submits that the information contained in the record is highly sensitive (section 21(2)(f)), was supplied in confidence (section 21(2)(h)) and its disclosure is likely to damage the reputation of the affected person (section 21(2)(i)). The appellant submits that there is a need for public accountability. Because section 21(1)(f) is an exception to the mandatory exemption which prohibits the disclosure of personal information, in order for me to find that section 21(1)(f) applies, I must find that disclosure of the personal information would not constitute an unjustified invasion of personal privacy. I have considered section 21(4), and I find it is not applicable in the circumstances of this appeal. Having considered the record, the representations and the provisions of the Act , I find that disclosure of the proposals submitted by the consulting company (with the exception of Appendix B), the tracking sheet for the tender, the evaluation summary of the proposals, the purchase order and the response section of the critical issue sheet (with the exception of the first paragraph) would not constitute an unjustified invasion of personal privacy, provided the per diem rate and ceiling price of the affected person and the names of the alternate candidates are severed. I find that the requirements of the presumptions claimed by the Ministry do not apply to this information and that the factors favouring disclosure outweigh the factors favouring the protection of privacy. T
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Legislation
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FIPPA
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17(1)(a), (b) & (c)
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21(1)(f)
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21(5)
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Section 23
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Aug 28, 1995
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Type
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Order
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