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Document
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P-738
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File #
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P_9300491
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Institution/HIC
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Ministry of the Solicitor General and Correctional 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 ). In August, 1990, the appellant filed a complaint under the Ontario Public Service's Policy on Sexual Harassment which was then in force. She requested a copy of records relating to the investigation of the complaint from the Ministry of the Solicitor General and Correctional Services (the Ministry). The request was included in the same letter with two other requests. The Ministry issued three separate decision letters in response to these requests. Each of these three decisions became the subject of a separate appeal file. The appeals relating to the other two parts of the request have been dealt with in previous orders. There are a number of affected persons who were notified of this appeal. These individuals are the respondent in the investigation (the respondent) and 13 other witnesses who gave statements (the witnesses). The records at issue consist of: the undisclosed portions of the investigation report (Record 1) the respondent's statement to the investigator (Record 1-3) statements by the 13 witnesses (Records 1-4 to 1-12, inclusive, and Records 1-14 to 1-16, inclusive) one letter from a witness (Record 1-13). The Ministry relies on the following exemption to deny access to the information which has not been disclosed: invasion of privacy - section 49(b). The appellant also maintains that more records exist that are responsive to her request. A Notice of Inquiry was provided to the parties to the appeal including the respondent and the 13 witnesses. Representations were received from the Ministry, the appellant, and three witnesses. 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. I have reviewed the records and I find that all of them contain personal information which relates to the appellant and other individuals. Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 49 provides a number of exceptions to this general right of access. Under section 49(b) of the Act , where a record contains the personal information of both the appellant and other individuals and the Ministry determines that the disclosure of the information would constitute an unjustified invasion of another individual's personal privacy, the Ministry has the discretion to deny the requester access to that information. The appellant argues that the Ministry's process in applying the exemption under section 49(b) was flawed because the Ministry was obliged to contact the affected persons to inquire as to whether or not they would consent to disclosure, and it did not do so. Where the subject of a request is personal information, the requirement for an institution to notify affected persons arises from section 28(1)(b) of the Act , which applies to requests under Part III of the Act by virtue of section 48(2). Section 28(1)(b) states as follows: Before a head grants a request for access to a record, that is personal information that the head has reason to believe might constitute an unjustified invasion of personal privacy for the purposes of clause 21(1)(f), the head shall give written notice in accordance with subsection (2) to the person to whom the information relates. In my view, section 28(1)(b) only requires notification where an institution is considering granting access to personal information, in circumstances where disclosure might constitute an unjustified invasion of personal privacy. If, after reviewing the record, an institution decides not to disclose the personal information, or if it decides that disclosure would not constitute an unjustified invasion of personal privacy, notification is not required. In the circumstances of this appeal, the Ministry made partial disclosure of the requested information after determining that to do so would not be an unjustified invasion of personal privacy. It denied access to the remaining personal information. Accordingly, the Ministry was not required to notify the affected persons under section 28. Moreover, all the affected persons were notified of this appeal in accordance with the provisions of section 50(3) of the Act . None of them consented to disclosure of their personal information. Having disposed of this issue, I will now consider whether disclosure of the withheld information would constitute an unjustified invasion of personal privacy under section 49(b) of the Act . Sections 21(2), (3) and (4) of the Act provide guidance in making this determination under section 49(b). Where one of the presumptions found 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 where 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 contained in section 21(3) apply, the institution must consider the application of the factors listed in section 21(2) of the Act , as well as all other considerations that are relevant in the circumstances of the case. In its representations, the Ministry states that the undisclosed portions of Record 1 (the Investigation Report) relate to the employment history of the respondent and the witnesses. If the personal information does in fact relate to employment history, section 21(3)(d) provides that disclosure would be a presumed unjustified invasion of personal privacy. The Ministry further states that there are two factors under section 21(2) which favour non-disclosure of the personal information in all of the records, as follows: the information is highly sensitive - section 21(2)(f) the information was supplied in confidence - section 21(2)(h) The three witnesses who made representations also submit that the information was supplied in confidence. In addition, one of the witnesses submits that the information is highly sensitive. This same witness also refers to the factor in section 21(1)(e), which applies where disclosure of the recor
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Legislation
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Subject Index
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Signed by
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John Higgins
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Published
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Aug 08, 1994
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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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