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Document
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PO-1812
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Institution/HIC
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Ontario Human Rights Commission
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Summary
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NATURE OF THE APPEAL: The Ontario Human Rights Commission (the OHRC) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to an unsevered copy of the submissions dated January 5, 2000 made by the OHRC to the office of the Information and Privacy Commissioner/Ontario (the IPC). The submissions referred to in the request were made in the course of an appeal by the appellant to the IPC of a decision of the OHRC to deny him access to a record involving a complaint which the appellant had filed with the OHRC. This appeal, designated as Appeal Number PA-990255-1 by the IPC, was resolved by Order PO-1787, dated May 18, 2000. In that decision, Adjudicator Holly Big Canoe upheld the OHRC's decision to deny the appellant access to the requested information, finding that it was properly exempt from disclosure under section 14(1)(e) of the Act . In the Inquiry stage of that appeal, Adjudicator Big Canoe solicited the representations of the OHRC by way of a Notice of Inquiry. The OHRC made submissions in response to the Notice and portions of those submissions, dated January 5, 2000, were shared with the appellant in order to assist him in making his own representations in response to the Notice of Inquiry provided to him. However, Adjudicator Big Canoe determined that portions of the OHRC's January 5, 2000 representations, which now form the record at issue in this appeal, should not be disclosed to the appellant as to do so would reveal the contents of the record at issue in Appeal Number PA-990255-1. It must be noted that the information which was withheld from the January 5, 2000 submissions of the OHRC and that which was ultimately found to be exempt from disclosure in Order PO-1787 under section 14(1)(e) is substantially the same. The OHRC denied access to the requested record, claiming the application of section 14(1)(e) to the information contained therein. The appellant appealed the decision to deny him access to the record. I provided a Notice of Inquiry to the appellant, soliciting his representations on the application of the exemptions in sections 14(1)(e) and 49(a) of the Act . The appellant has provided me with his representations. Because of the manner in which I will address the application of the exemptions below, it was not necessary for me to seek the representations of the OHRC. The record at issue in the present appeal consists of the undisclosed portions of the OHRC's submissions in Appeal Number PA-990255-1 to the IPC dated January 5, 2000. DISCUSSION: PERSONAL INFORMATION "Personal information" is defined in section 2(1) of the Act . Only information which fits the definition can qualify for exemption under section 21. In Order 11, it was held that: It is clear from the wording of the statute that the list of examples of personal information under subsection 2(1) is not exhaustive. This leaves it open for [the person who will be making the decision in this appeal] to decide whether or not information contained in the records which does not fall under subsections (a) to (h) ... constitutes personal information. Based on my review of the subject record, I find that it contains the personal information of the appellant and that of another identifiable individual (the affected person). The record refers to this individual by name and includes additional personal information which relates to him/her (section 2(1)(h)). Again, I note that the record at issue in the appeal which gave rise to the decision in Order PO-1787, and the information contained in the record which is the subject of the present appeal, is similar in many respects. The affected person is identified by name and other personal information about this individual is also contained therein. DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION/ENDANGER LIFE OR SAFETY 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(a) of the Act , the OHRC has discretion to deny access to an individual's own personal information in instances where the exemptions in sections 12, 13, 14 , 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information. [my emphasis] The OHRC claims that the record is exempt from disclosure pursuant to section 14(1)(e). Accordingly, I will consider section 14(1)(e) as a preliminary step in determining whether the records qualify for exemption under section 49(a) of the Act Section 14(1)(e) of the Act reads: A head may refuse to disclose a record where the disclosure could reasonably be expected to, endanger the life or physical safety of a law enforcement officer or any other person; Section 14 of the Act requires that the expectation of one of the enumerated harms coming to pass, should a record be disclosed, not be fanciful, imaginary or contrived, but rather one that is based on reason. An institution relying on the section 14 exemption bears the onus of providing sufficient evidence to substantiate the reasonableness of the expected harm by virtue of section 53 of the Act . [Order P-188] The requirement in Order 188 that the expectation of harm must be "based on reason" means that there must be some logical connection between disclosure and the potential harm which the institution seeks to avoid by applying the exemption. [Order P-948] Section 14(1)(e) The words "could reasonably be expected to" appear in the preamble of section 14(1), as well as in several other exemptions under the Act dealing with a wide variety of anticipated "harms". In the case of most of these exemptions, in order to establish that the particular harm in question "could reasonably be expected" to result from disclosure of a record, the party with the burden of proof must provide "detailed and convincing" evidence to establish a "reasonable expectation of probable harm" [see Order P-373, tw
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Legislation
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Subject Index
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Published
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Aug 04, 2000
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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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