IPC - Office of the Information and Privacy Commissioner/Ontario

Français

Site Map

Advanced Search

Subject Index Listing

Reconsideration Table

Judicial Review of Municipal Orders

Judicial Review of Provincial Orders

Judicial Review of Privacy Complaint Reports

The Acts

Recent Orders

M-640

Document		M-640


Institution/HIC		Regional Municipality of Waterloo


Summary		NATURE OF THE APPEAL: The Regional Municipality of Waterloo (the Region) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to statements and submissions pertaining to a complaint of harassment made against the requester. The Region granted access to four letters written by the complainant. Access was denied to nine other records or parts of records (Records E to N) pursuant to sections 14(1) and 38(b) of the Act , and to one record (Record F) on the basis that it was not responsive to the request. The requester appealed the decision, and claimed that a conflict of interest exists with respect to the person who made the access decision. As a result of mediation, the appellant decided not to pursue her appeal with respect to Records E and G, and these two records are, accordingly, not at issue. Further mediation was not possible and a Notice of Inquiry was sent to the appellant, the Region, and four affected persons (the complainant and three witnesses in the harassment investigation). Representations were received from the Region and three affected persons. The Region is relying on the following exemption to deny access to the records: invasion of privacy - section 38(b) THE RECORDS The eight records at issue in this appeal are: Record F a document entitled "Investigation of Alleged Harassment" consisting of interview questions for the respondent, complainant and witnesses (3 pages) Record H a Harassment Panel Member's handwritten interview notes of the complainant, June 17, 1994 (4 pages) Record I Chronology of events, supplied by complainant on June 17, 1994 (1 page) Record J a Harassment Panel Member's handwritten interview notes regarding witness A, June 17, 1994 (1 page) Record K a Harassment Panel Member's handwritten notes regarding a telephone conversation with witness A, June 23, 1994 (1 page) Record L a Harassment Panel Member's handwritten interview notes regarding witness B, June 17, 1994 (3 pages) Record M Rough notes of Record L (2 pages) Record N a Harassment Panel Member's handwritten interview notes regarding witness C, June 21, 1994 (1 page) PRELIMINARY ISSUES: CONFLICT OF INTEREST The appellant claims that there is a conflict of interest with respect to the person who made the decision regarding access to the records, in this case, the Regional Clerk. The basis of the claim is that the Regional Clerk's husband is a friend of the person who made allegations of harassment against the appellant. An individual with a personal or special interest in whether the records are disclosed should not be the person who decides the issue of disclosure. In determining whether there is a conflict of interest, we must look at (a) whether the decision-maker had a personal or special interest in the records, and (b) whether a well-informed person, considering all of the circumstances, could reasonably perceive a conflict of interest on the part of the decision-maker. The records consist of statements made by the complainant and witnesses in response to questions posed by the Harassment Panel during its investigation of alleged harassment. Based upon my review of the records, the correspondence, and representations, I find that the relationship is too remote for the Regional Clerk to have a personal or special interest in the disclosure or non-disclosure of the records and, in my view a well-informed person would not reasonably perceive a conflict of interest on the part of the Regional Clerk in making the decision. WHETHER RECORD F IS RESPONSIVE TO THE REQUEST Record F is entitled "Investigation of Alleged Harassment" and consists of the questions posed by the harassment panel during interviews with the respondent, complainant and witnesses. The Region submits that, although a copy of the standard interview questions is available from Human Resources to any employee who requests it, in this case, the questions were not disclosed to the appellant because it would not have been meaningful since the answers had not been disclosed to her. In my view, the questions posed by the investigating panel members are reasonably related to the request, and I find that the record is responsive to the request. DISCUSSION: INVASION OF PRIVACY Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual. I have reviewed the above records at issue in this appeal, and in my view, all of the records contain the personal information of the appellant and other identifiable individuals. Section 36(1) of the Act gives individuals a general right of access to their own personal information held by a government body. However, this right of access is not absolute. Section 38 provides a number of exemptions to this general right of access. One such exemption is found in section 38(b), which reads: 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) introduces a balancing principle. The Region must look at the information and weigh the requester's right of access to her own personal information against the rights of other individuals to the protection of their personal privacy. If the Ministry determines that disclosure of the information would constitute an unjustified invasion of the other individuals' personal privacy, then section 38(b) gives the Region the discretion to deny the requester access to her own personal information. 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 privacy.


Legislation		MFIPPA 14(2)(d) 14(2)(e) 14(2)(f) 14(2)(g) 14(2)(h) 14(2)(i) 38(b)


Subject Index		conflict of interest


Published		Nov 08, 1995


Type		Order


<< Back

Main Menu