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M-167

Document		M-167


Institution/HIC		Waterloo Regional Police Services Board


Summary		ORDER BACKGROUND: The Waterloo Regional Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to: ... personal information and occurrences of me, in regards to any and all investigations done by police about me from January 1981 until the conclusion of the investigation in 1984. The Police believed that some of the responsive records contained the personal information of individuals other than the requester and that disclosure of this information might constitute an unjustified invasion of the personal privacy of these individuals. The Police were able to locate only one of these individuals. Pursuant to section 21(1)(b) of the Act , the Police notified this individual (the affected person). The affected person did not consent to the disclosure of his personal information. The Police identified 281 responsive records and disclosed many of them in total to the requester. The Police denied access in full to certain records pursuant to sections 11(c), (d), (e), and (h) of the Act and provided only partial access to others, claiming the application of the exemptions in sections 8(1)(c) and 38(b) of the Act for the portions not disclosed to the requester. The requester appealed the decision of the Police. During mediation the Police withdrew its claim for the application of the exemption provided by sections 8(1)(c) and 11 of the Act and disclosed to the appellant the records for which those exemptions had been claimed. Also in the course of mediation the appellant indicated that he was not interested in receiving access to some of the records for which exemptions had been claimed. Further mediation was not possible and notice that an inquiry was being conducted to review the decision of the Police was sent to the appellant, the Police and the affected person. Representations were received from the Police and the affected person only. The records which remain at issue consist of those portions of pages 241 to 244 which were not disclosed to the appellant. All of these records relate to charges brought against the appellant under the Police Act . ISSUES: The issues arising in this appeal are: A. Whether the information contained in the records qualifies as "personal information" as defined by section 2(1) of the Act . B. If the answer to Issue A is yes, whether the discretionary exemption provided by section 38(b) of the Act applies. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the information contained in the records qualifies as "personal information" as defined by section 2(1) of the Act . Section 2(1) of the Act states, in part: "personal information" means recorded information about an identifiable individual, including, ... (d) the address, telephone number, fingerprints or blood type of the individual, ... (h) the individual's name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual; I have reviewed pages 241 through 244 of the record. In my opinion, they contain the personal information of the appellant and other individuals, including that of the affected person. ISSUE B: If the answer to Issue A is yes, whether the discretionary exemption provided by section 38(b) of the Act applies. I have found under Issue A that the records contain personal information of both the appellant and other individuals. Section 36(1) of the Act gives individuals a general right of access to personal information about themselves which is in the custody or under the control of institutions covered by the Act . However, this right of access is not absolute. Section 38 provides a number of exceptions to this general right of access, including section 38(b), which reads as follows: A head may refuse to disclose to the individual to whom the information relates personal information, if the disclosure would constitute an unjustified invasion of another individual's personal privacy; Section 38(b) of the Act introduces a balancing principle. The Police must look at the information and weigh the requester's right of access to his own personal information against another individual's right to the protection of their privacy. If the Police determine that release of the information would constitute an unjustified invasion of the other individual's personal privacy, then section 38(b) gives the Police the discretion to deny access to the personal information of the requester (Order 37). Sections 14(2) and (3) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of the personal privacy of the individual to whom the information relates. Section 14(2) provides some criteria for the head to consider in making this determination. Section 14(3) lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy. In my view, where the personal information relates to the requester, the onus should not be on the requester to prove that disclosure of the personal information would not constitute an unjustified invasion of the personal privacy of another individual. Since the requester has a right of access to his/her own personal information, the only situation under section 38(b) in which he/she can be denied access to the information is if it can be demonstrated that disclosure of the information would constitute an unjustified invasion of another individual's personal privacy. In its representations the Police refer to sections 14(2)(h) and 14(2)(i) of the Act as the bases for their determination that the release of the information withheld from the record would constitute an unjustified invasion of other individuals' personal privacy. In my view, the submissions of the affected person can be considered to relate to the circumstances described in sections 14(2)(f) and (h) of the Act . Sections 14(2)(f), (h) and (i) read as follows: A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shal


Legislation		MFIPPA 14(2)(f) 14(2)(h) 14(2)(i) 2(1) personal information 38(b)


Subject Index		highly sensitive individual's reputation supplied in confidence


Published		Jul 28, 1993


Type		Order


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