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Document
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P-1494
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File #
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P_9700211
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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 Ministry of the Solicitor General and Correctional Services (theMinistry) received a request under the Freedom of Information and Protectionof Privacy Act (the Act ) for access to copies of an Accident &Injury Report and extracts from a Health Care file relating to the requester aswell as "A&D photos". The requester had been an inmate in acorrectional facility operated by the Ministry and was allegedly assaulted by afellow inmate or inmates. The Ministry granted partial access to the record it identified asresponsive to the request and claimed the exemptions found in the followingsections of the Act to deny access to the remaining information. invasion of privacy - sections 21 and 49(b) The requester (now the appellant) appealed this decision to theCommissioner's office. This office sent a Notice of Inquiry to the Ministry andthe appellant. Representations were received from the Ministry only. The record remaining at issue consists of Ministry Occurrence Reports, aform entitled "Decision Not to Lay Criminal Charges" and witnessstatements. Pages 62, 63 and 64 are duplicates of pages 29, 30 and 31. DISCUSSION: INVASION OF PRIVACY Under section 2(1) of the Act , "personal information" isdefined, in part, to mean recorded information about an identifiable individual. I have reviewed the records and the submissions of the Ministry and find thatall of the records constitute the personal information of the appellant andother identifiable individuals. Section 47(1) of the Act allows individuals access to their ownpersonal information held by a government institution. The appellant,therefore, has a general right of access to those records which contain hispersonal information. Section 49 sets out exceptions to this right. Where a record contains thepersonal information of both the appellant and another individual orindividuals, section 49(b) of the Act gives the Ministry the discretionto withhold information in the record if it determines that disclosing thatinformation would constitute an unjustified invasion of another individual'spersonal privacy. Sections 21(2) and (3) of the Act provide guidance in determiningwhether disclosure of personal information would result in an unjustifiedinvasion of the personal privacy of the individual to whom the informationrelates. Where one of the presumptions found in section 21(3) applies to thepersonal information found in a record, the only way such a presumption againstdisclosure can be overcome is where the personal information falls under section21(4) or where a finding is made that section 23 of the Act (the publicinterest override) applies to the personal information. The Ministry submits that section 21(3)(b) of the Act applies to allthe information remaining at issue. Section 21(3)(b) 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; The Ministry submits that the exempt information was compiled and isidentifiable as part of an investigation into a possible violation of the law. The Ministry states that a constable of the Metropolitan Toronto Police ServicesBoard investigated the alleged assault of the appellant by another inmate andthat this is an offence under the Criminal Code . The Ministry indicatesthat the constable took copies of relevant Ministry records and interviewed theappellant as part of his investigation. In this case, no charges were laid. The Ministry submits, and I agree, thatthe Ministry is only required to demonstrate that an investigation into a possible violation of law took place in order to bring therecords which were compiled and are identifiable as part of the investigationwithin the ambit of the presumption in section 21(3)(b) (Orders P-223 andP-237). Several previous orders of this office have considered whether informationof which an appellant was previously aware, or which was provided to orreceived from an appellant by an institution, should be subject to a presumptionagainst non-disclosure (Orders M-384, M-444, M-613, M-847, P-1263 and P-1414). All of these orders deal with fact situations analogous to the present case inthat the information at issue was the personal information of both the appellantand other individuals. 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. In my view, this reasoning is equally applicable in the circumstances ofthis appeal to information which was provided by others, or was obtained by theMinistry, in the presence of the appellant. Some of the severed information on page 29 and the severed information onpage 36 was clearly either provided to the Correctional Officer by the appellantor was gathered in the presence of the appellant. In these circumstances, I am of the view that to apply the presumption insection 21(3)(b) to a portion of the severed information on page 29 and to thesevered information on page 36 would lead to an absurd result. Accordingly, Ifind that this presumption does not apply to the information provided by theappellant, or which was provided in his presence, in these pages. The Ministry has also claimed that disclosure of this information should befound to constitute an unjustified invasion of personal privacy because it ishighly sensitive (section 21(2)(f)) and because the release of this informationwill unfairly expose other individuals to pecuniary or other harm(section21(2)(e)). In my view, and for the same reasons I have outlined above, I findthat to deny access to the information which the appellant provided to theinstitution based on sections 21(2)(e) or (f) would also lead to an "absurd"result. I have highlighted this information in yellow on the copy of the recordwhich is being sent to the Ministry's Freedom of Information and PrivacyCo-ordinator with a copy of this order. With respect to the remaining personal information which was not provided bythe appellant found on pages 29-32, 37-40 and 60, I am satisfied that theperson
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Legislation
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Subject Index
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Signed by
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Marianne Miller
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Published
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Nov 27, 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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