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Document
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PO-1926
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File #
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PA-010122-1
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Institution/HIC
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Ministry of Transportation
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Summary
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NATURE OF THE APPEAL: The appellant submitted a request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Driver Improvement Office of the Ministry of Transportation (the Ministry) for "any and all correspondence, and submission from [a named doctor] submitted to the MTO regarding myself". The appellant indicated that she was requesting this information because "this physician has never met me nor treated me or any one of my family". In responding to the appellant's request, the Manager of the Driver Improvement Office wrote: We have reviewed your file and the records appear to fall under two categories; 1. Document(s) which we have no problem disclosing; 2. Document(s) where the decision is unclear. In order to provide the best possible customer service, we are disclosing all the document(s) in the first category at this time. However, we are transferring the category 2 document(s) to our Freedom of Information Coordinator for further consideration. The Ministry's Freedom of Information and Privacy Co-ordinator then issued a decision under the Act refusing to confirm or deny the existence of the requested records pursuant to section 21(5) of the Act . The appellant appealed this decision. During mediation the Ministry wrote to this office claiming the application of sections 49(a) (discretion to refuse requester's own information) in conjunction with section 20 (danger to health or safety) and 49(b) (invasion of privacy) to records of the type requested, if they exist. During discussions between the mediator and the appellant, the appellant described the relationship between the named doctor (the affected person) and herself. In this regard, the appellant indicated that she is involved with the ex-husband of the affected person and their two children. It is apparent from these discussions that the relationship between the parties is acrimonious. The appellant indicated further during her discussions with the mediator that the Ministry has already confirmed that it has a letter on file from a [named doctor] which is why she submitted the request. The appellant also stated her belief that the Ministry revoked her driver's licence as a result of the affected person's alleged correspondence with it. I sought representations from the Ministry, initially. In addition, I decided to send a Notice of Inquiry to the affected person seeking her views on disclosure of information that would reveal that she has or has not communicated with the Ministry, regardless of whether any such records exist. The Ministry submitted representations in response to the Notice of Inquiry. I subsequently sought the appellant's representations on the issues in this appeal. In doing so, I did not provide her with the submissions that I had received, but rather, prepared a summary of them so that the appellant was able to understand the basis for the position taken. The appellant was asked to review this summary and to refer to it, where appropriate, in responding to the issues in the Notice of Inquiry. The appellant has submitted extensive representations in response to the Notice of Inquiry. Her representations focus on her views of the affected person and the nature of the interactions between them. DISCUSSION REFUSAL TO CONFIRM OR DENY THE EXISTENCE OF RECORDS AND THE PERSONAL INFORMATION EXEMPTION Introduction The Ministry relies on section 21(5) of the Act as the basis for its decision to refuse to confirm or deny whether responsive records exist. This section reads: 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 from other requesters who have been denied access under the Act . By invoking section 21(5), the institution is denying the requester the right to know whether a record exists, even when one does not. This section provides institutions with a significant discretionary power which should be exercised only in rare cases [Order P-339]. An institution relying on this section must do more than merely indicate that the disclosure of the record would constitute an unjustified invasion of personal privacy. An institution must provide sufficient evidence to demonstrate that disclosure of the mere existence of the requested record would convey information to the requester, and that the disclosure of this information would constitute an unjustified invasion of personal privacy [Orders P-339, P-808 upheld on judicial review in Ontario Hydro v. Ontario (Information and Privacy Commissioner) , [1996] O.J. No. 1669, leave to appeal refused [1996] O.J. No. 3114 (C.A.)] Before the Ministry may be permitted to exercise its discretion to invoke section 21(5), it must provide sufficient evidence to establish that: Disclosure of the record (if it exists) would constitute an unjustified invasion of personal privacy; and Disclosure of the fact that the record exists (or does not exist) would in itself convey information to the requester, and the nature of the information conveyed is such that disclosure would constitute an unjustified invasion of personal privacy [Order MO-1179]. Part one: disclosure of the records (if they exist) Definition of Personal Information Under part one of the section 21(5) test, the Ministry must demonstrate that disclosure of the records, if they exist, would constitute an unjustified invasion of personal privacy. An unjustified invasion of personal privacy can only result from the disclosure of personal information. Under section 2(1), "personal information" is defined, in part, to mean recorded information about an identifiable individual, including the individual's name where it appears with other personal information relating to the individual or where disclosure of the name would reveal other personal information about the individual [paragraph (h)]. The Ministry submits that a letter of the type requested by the appellan
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Legislation
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Subject Index
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Signed by
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Laurel Cropley
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Published
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Jul 17, 2001
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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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