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Document
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P-1375
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File #
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P_9700007
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Institution/HIC
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Ministry of the Solicitor General and CorrectionalServices
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Summary
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NATURE OF THE APPEAL: The appellant requested a copy of an identified occurrence report and a copyof the 911 tape relating to the occurrence. The request was made to theMinistry of the Solicitor General and Correctional Services (the Ministry)pursuant to the Freedom of Information and Protection of Privacy Act (the Act ). The Ministry provided the appellant with partial access to the occurrencereport and denied access to the tape in its entirety. The tape and portions ofthe occurrence report were withheld on the basis of the following exemptions inthe Act : law enforcement report - section 14(2)(a) invasion of privacy - sections 21(1) and 49(b) discretion to refuse access to requester's own information - section 49(a) The appellant filed an appeal of the Ministry's decision. During mediationthe appellant indicated that he was only seeking access to the 911 tape. The 911 telephone call to the Ontario Provincial Police (the OPP) was madeby the appellant's son at the appellant's request. The tape contains the voicesof his son, the appellant and the appellant's former wife. A Notice of Inquiry was sent to the Ministry, the appellant and theappellant's former wife on her own behalf, as well as her 12 year old son who isin her custody. The appellant indicated that his identity as the requestercould be disclosed to his former wife. Representations were received from the Ministry, the appellant and theappellant's former wife on her own behalf and on behalf of her son. In itsrepresentations, the Ministry withdrew its reliance on the exemptions insections 14(2)(a) and 49(a) of the Act . DISCUSSION: INVASION OF PRIVACY "Personal information" is defined in section 2(1) of the Act ,in part, as recorded information about an identifiable individual. I havelistened to the 911 tape and find that it contains the personal information ofthe appellant, his former wife and his son. Section 47(1) of the Act allows individuals access to their ownpersonal information held by a government institution. However, section 49 setsout exceptions to this right. Where a record contains the personal information of both the appellant andother individuals, section 49(b) of the Act allows the institution towithhold information from the record if it determines that disclosing thatinformation would constitute an unjustified invasion of another individual's personal privacy. On appeal, I must be satisfied thatdisclosure would constitute an unjustified invasion of anotherindividual's personal privacy. The appellant is not required to prove thecontrary. Sections 21(2), (3) and (4) provide guidance in determining whetherdisclosure of personal information would constitute an unjustified invasion ofpersonal privacy. Disclosing the types of personal information listed insection 21(3) is presumed to be an unjustified invasion of personal privacy. Ifone of the presumptions applies, the institution can disclose the personalinformation only if it falls under section 21(4) or if section 23 applies to it. If none of the presumptions in section 21(3) apply, the institution mustconsider the factors listed in section 21(2), as well as all other relevantcircumstances. The Ministry submits that the personal information at issue is subject tothe presumption in section 21(3)(b) of the Act which states: A disclosure of personal information is presumed to constitute anunjustified invasion of personal privacy where the personal information, was compiled and is identifiable as part of an investigation into apossible violation of law, except to the extent that disclosure is necessary toprosecute the violation or to continue the investigation; There are several previous orders of this office which have consideredwhether information that an appellant was previously aware of, or which wasprovided to or received from an appellant by an institution should be subject toa presumption against non-disclosure (Orders M-384, M-444, M-613, M-847 andP-1263). All of these orders deal with fact situations analogous to the presentcase in that the information at issue was the personal information of both theappellant and other individuals. In Orders M-713 and M-793, the records at issue were tapes of 911 calls thatan appellant had made to the police. Order M-851 involved a videotape of theappellant taking a polygraph test. Order M-857 did not involve information orrecords provided by the appellant to the institution, but information within theknowledge of the appellant by virtue of his involvement in the situation whichlead to the creation of the records. These orders found that non-disclosure of personal information which wasoriginally provided to the institution by an appellant would contradict one ofthe primary purposes of the Act , which is to allow individuals to haveaccess to records containing their own personal information unless there is acompelling reason for non-disclosure. They determined that applying thepresumption to deny access to the information which the appellant provided tothe institution would, according to the rules of statutory interpretation, leadto an "absurd" result. The circumstances of this case are somewhat different in that the appellantdid not actually make the 911 call to the OPP. His son did. However, in myview, it is clear that the call was being made by the son on the appellant'sbehalf. The appellant was physically unable to place the call because of thesituation at that time with his former wife. It is clear that the appellant waspresent when the call was being made, heard the conversation between his son andthe dispatcher and, in many instances, directed his son how to respond to thedispatcher's questions. It is almost as if the son were the appellant's "proxy"with respect to the call. In these circumstances, I am of the view that to apply the presumption insection 21(3)(b) to the tape of the 911 call would lead to an absurd result. Accordingly, I find that this presumption does not apply. The parties have all provided submissions on the other circumstances of thiscase which, in the case of the Ministry and the appellant's former wife, favourprivacy and which, in the appellant's view support disclosure. The Ministry submits that the personal information is highly sensitive inthat disclosure would cause stress to the appellant's former wife and son. Thus, the Ministry has raised the application of the circumstances outlined insection 21(2)(f) of the Act . The former wife states, that in her opinion, it would be in the bestinterests of all concerned to put this incident behind them and that mention ofthe existence of the tape would upset her son. The appellant points
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Legislation
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Apr 09, 1997
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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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