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Document
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PO-1804-F
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Institution/HIC
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Ontario Realty Corporation
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Summary
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NATURE OF THE APPEAL: This is my final order disposing of all issues in Appeal PA-990362-1 not addressed in Interim Order PO-1786-I. The appellant, a journalist, submitted a request to Ontario Realty Corporation (ORC) under the Freedom of Information and Protection of Privacy Act (the Act ) for information pertaining to all properties sold by the ORC since 1995. The responsive records consist of five lists dated from May 5, 1995 to June 28, 1999 which identify the properties sold by ORC. The list was expanded during mediation to cover properties sold up to March 31, 2000. The lists include the name of the purchaser (individual or business), the legal description of the property, the closing date, a project number assigned by the ORC, and the purchase price. However, the only information sought by the appellant from these records is the name of the purchaser, the location (legal description) of the property and the purchase price. The ORC eventually issued a decision regarding business purchasers, providing access to some information and denying access to other information pursuant to section 17(1) of the Act (third party commercial information). This decision was appealed. I notified all business purchasers for which I was able to obtain mailing addresses. One consented to disclosure. Following an inquiry, I issued Interim Order PO-1786-I, where I found that none of the withheld information relating to business purchasers qualified for exemption, and I ordered the ORC to disclose this information to the appellant. This disclosure has been made. As far as the information relating to individual purchasers is concerned, the ORC denied access to all of it pursuant to section 21(1) of the Act (invasion of privacy). I notified 145 individual purchasers for whom I had contact information, five of whom provided written consent to disclose their information. Again, following an inquiry, I found that the information relating to individual purchasers was their personal information, and that disclosure would constitute a presumed unjustified invasion of privacy. In Interim Order PO-1786-I, I ordered the ORC to disclose information relating to the individual purchasers who provided written consent, and accepted the ORC's position that the information relating to the rest of the individual purchasers satisfied the requirements for exemption under section 21(1) of the Act . During the course of processing this appeal, the appellant claimed that there was a compelling public interest in disclosure of the records, thereby raising the possible application of the public interest override in section 23 of the Act . I deferred my decision on this issue in order to provide a Supplementary Notice of Inquiry to the ORC, the appellant, and the 115 individual purchasers who did not consent to disclosure. I received written representations from the appellant and nine individual purchasers. The ORC did not respond to the Supplementary Notice. Five individual purchasers consented to disclosure of their information. Four Notices were returned to this office as undeliverable. I find that the personal information of the individual purchasers who consented to disclosure falls within the scope of the exception provided by section 21(1)(a) of the Act , and should be disclosed to the appellant on that basis. DISCUSSION: COMPELLING PUBLIC INTEREST Section 23 states: An exemption from disclosure of a record under sections 13, 15, 17, 18, 20 and 21 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption. General In Order P-241, former Commissioner Tom Wright made the following comments on the burden of establishing the application of section 23, which I agree with: The Act is silent as to who bears the burden of proof in respect of section 23. However, Commissioner [Sidney B.] Linden has stated in a number of Orders that it is a general principle that a party asserting a right or duty has the onus of proving its case. This onus cannot be absolute in the case of an appellant who has not had the benefit of reviewing the requested records before making submissions in support of his or her contention that section 23 applies. To find otherwise would be to impose an onus which could seldom if ever be met by the appellant. Accordingly, I have reviewed those records which I have found to be subject to exemption, with a view to determining whether there could be a compelling public interest in disclosure which clearly outweighs the purpose of the exemption. In Order P-1398 (upheld on judicial review in Ontario (Ministry of Finance) v. Ontario (Information and Privacy Commissioner) (1999), 118 O.A.C. 108 (C.A.), leave to appeal refused [1999] S.C.C.A. No.134 (note), former Inquiry Officer John Higgins made the following statements concerning the potential application of section 23: An analysis of section 23 reveals two requirements which must be satisfied in order for it to apply: (1) there must be a compelling public interest in disclosure, and (2) this compelling public interest must clearly outweigh the purpose of the exemption. If a compelling public interest is established, it must then be balanced against the purpose of any exemptions which have been found to apply. Section 23 recognizes that each of the exemptions listed, while serving to protect valid interests, must yield on occasion to the public interest in access to information which has been requested. An important consideration in this balance is the extent to which denying access to the information is consistent with the purpose of the exemption. Is there a public interest in disclosure, and if so, is it "compelling"? The appellant submits: The issue of the manner of the disposition of public property by Ontario Realty Corporation ("ORC") is a matter of compelling public interest. There has been widespread media coverage of the improprieties the ORC alleges in the disposition of the real estate. In
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Legislation
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Subject Index
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Published
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Jul 13, 2000
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Type
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Order – Final
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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