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Document
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PO-2056-I
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File #
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PA-000370-3
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Institution/HIC
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Ministry of the Solicitor General This interim
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Summary
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order disposes of some of the remaining issues in appeal PA-000370-3. It follows from my previously issued Interim Order PO-2033-I in this same appeal, issued on August 9, 2002. NATURE OF THE APPEAL: The Ministry of the Solicitor General (the Ministry, now the Ministry of Public Safety and Security) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) from a member of the media (the appellant), for access to "all video footage recorded by the Ontario Provincial Police (OPP) at Ipperwash Provincial Park (Ipperwash) from September 5-7, 1995" and "all photos taken by the OPP at Ipperwash Provincial Park from September 5-7, 1995." The Ministry denied access to certain responsive records, and the appellant appealed that decision to this office. After conducting an inquiry under the Act , I made a number of findings and issued Interim Order PO-2033-I. Some findings related to one specific record, referred to in that order as "the Category 3 videotape". This record consists of a videotaped witness statement of an interview conducted by the OPP. Section 21 is the only exemption claim relied on by the Ministry for this record. In Interim Order PO-2033-I, I found that the Category 3 videotape contained "personal information" as that term is defined in section 2(1) of the Act . Specifically, I found: The only Category 3 record is a videotaped interview of an individual conducted by the OPP. It is apparent from the contents of this videotape that it was conducted in the context of the OPP's investigation into the events that took place at Ipperwash. The interviewee is identified by name and address on the tape, and her face and voice are clearly discernable. Throughout the interview, the individual describes events that took place at Ipperwash, including her "personal opinions or views" as the phrase is used in paragraph (e) of the definition of "personal information". Accordingly, I find that the one Category 3 videotape contains the interviewee's "personal information." The OPP officers and health care professional who appear on the videotape are discharging their professional responsibilities, and the videotape does not include their personal information. No individual, other than the interviewee, is identifiable from the contents of the videotape. Normally, once a finding is made that a record contains "personal information", the next step is to determine whether that information qualifies for exemption under the mandatory personal privacy exemption in section 21 of the Act . However, in this case, I decided to defer my consideration of this exemption because the interviewee had not been notified. In this regard, I stated in Interim Order PO-2033-I: The interviewee whose personal information is contained on the one Category 3 videotape was not one of the occupiers at Ipperwash. She was not notified as an affected person by the Ministry at the request stage, and has not as yet been added as a party to this appeal. In the circumstances, I decided to defer my decision under section 21, pending notification of the interviewee, and receipt of any representations she chose to provide. The appellant maintains that, even if I find that the Category 3 videotape qualifies for exemption under section 21, the public interest override in section 23 should apply to this record. Because I was not in a position to make my finding under section 21 for this record, I also decided in Interim Order PO-2033-I that I would defer my consideration of section 23, pending notification. Accordingly, after issuing Interim Order PO-2033-I, I sent a Supplementary Notice of Inquiry to the interviewee (the affected party) outlining the facts and issues relating to the Category 3 videotape and asking for representations from her on the following issues: - Does she consent to disclosing her personal information to the appellant? - If not, and if I find that disclosing her personal information would constitute an unjustified invasion of her privacy, would the "public interest override" in section 23 apply to the videotape? I also provided the affected party with a copy of the representations previously submitted to me by the appellant and the Ministry on the section 23 issue. At the same time, I sent a Supplementary Notice of Inquiry to the Ministry, asking for additional information concerning the Category 3 videotape. The Ministry and affected party both submitted representations. I then sent the Supplementary Notice to the appellant, together with a copy of the Ministry's representations and a summary of the affected party's representations. The appellant provided representations in response, which were in turn shared with the Ministry and the affected party. Neither the Ministry nor the affected party submitted reply representations. RECORD: The only record at issue in this appeal is a videotaped witness statement of an interview conducted by the OPP. It was recorded on the morning of September 7, 1995, and is approximately 47 minutes in length. DISCUSSION: Personal information/invasion of privacy I determined in Interim Order PO-2033-I that the Category 3 videotape contains the personal information of the affected party only. Where records contain only the personal information of individuals other than an appellant, section 21 of the Act prohibits disclosure of this information unless one of the exceptions listed in the section applies. In claiming section 21 as the basis for denying access to the Category 3 videotape, the Ministry relied on the criteria and presumption described in sections 21(2)(e), 21(2)(f), 21(2)(i) and 21(3)(b). The appellant relied on the exceptions to the exemption described in sections 21(1)(a) and 21(1)(f). Section 21(1)(a) Section 21(1)(a) is an exception to the mandatory personal privacy exemption that reads as follows: (1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except, (a) upon the prior written request or consent of the individual, if the record is one to which the individual is entitled to have access; In her representations, the affected party indicated that she does not consent to the disclosure of her personal information. Accordingly, the exception in section 21(1)(a) of the Act does not apply to the Category 3 videotape. Section 21(1)(f) Section 21(1)(f) is another exception to the mandatory personal privacy exemption that reads: (1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except, (f) 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 disclosure of personal information would result in an unjustified invasion of the personal privacy of t
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Legislation
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FIPPA
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21(1)(a)
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21(1)(f)
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21(3)(b)
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Section 23
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Oct 24, 2002
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Type
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Order – Interim
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