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M-122

Document		M-122


Institution/HIC		The Northern District School Area Board


Summary		ORDER BACKGROUND: The Northern District School Area Board (the Board) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to two letters and a report which contain complaints regarding the conduct of the requester, who is a teacher employed by the Board. Following notification of the authors of the letters, the Board denied access to the two letters pursuant to section 38(b) of the Act . With regard to the report, the Board indicated that no such record exists. The requester appealed the Board's decision. Record 1 is a letter dated March 2, 1992, addressed to the principal of the school where the appellant taught. It was written by a parent (the first affected person) of a student at the school. Part of this record refers to a complaint about an individual other than the appellant. This information is not responsive to the appellant's request and should be severed from the record. Record 2 is a letter dated March 4, 1992, addressed to the Board's Supervisory Officer and was also written by a parent (the second affected person) of a student. ISSUES: The issues in this appeal are: A. Whether the information contained in Records 1 and 2 qualifies as "personal information" as defined in 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. C. Whether the Board's search for the additional requested record was reasonable in the circumstances. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the information contained in Records 1 and 2 qualifies as "personal information" as defined in section 2(1) of the Act . In all cases where the request involves access to personal information, it is my responsibility, before deciding whether the exemptions claimed by the Board apply, to determine whether the information falls within the definition of "personal information" as set out in section 2(1) of the Act , and whether it relates to the appellant, another individual or both. In part, section 2(1) of the Act defines "personal information" as "... recorded information about an identifiable individual, ...". I have reviewed the records and, in my view, Records 1 and 2 contain personal information of the appellant, the affected persons and other identifiable individuals. ISSUE B: If the answer to Issue A is yes, whether the discretionary exemption provided by section 38(b) of the Act applies. In Issue A, I found that Records 1 and 2 contain personal information of both the appellant and the affected persons. Section 36(1) of the Act gives individuals a general right of access to their personal information in the custody or control of institutions. However, this right of access is not absolute. Section 38 provides a number of exceptions to this general right of access. Specifically, section 38(b) provides: 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 Board must look at the information and weigh the requester's right of access to his/her own personal information against other individuals' right to the protection of their personal privacy. If the Board determines that the release of the information would constitute an unjustified invasion of the other individuals' personal privacy, then section 38(b) gives the Board the discretion to deny the requester access to the personal information (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(3) lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy. The Board and the first affected person have not claimed any of the provisions of section 14(3) of the Act . The second affected person submits that sections of Record 2 contain references to medical information and the education of her children. Sections 14(3)(a) and (d) state: A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information, (a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation; (d) relates to employment or educational history; Based on the representations received from the second affected person and my review of the records, in my view, none of the factors listed in section 14(3) apply to the information contained in either record. Part of Record 2 contains information provided by the second affected person which refers to a symptom of an undisclosed medical condition. The references to education consist of general comments and observations made by the affected persons. In my view, the information is not sufficiently detailed to attract the application of the presumptions contained in section 14(3)(a) and (d). Accordingly, I find that the requirements for a presumed unjustified invasion of personal privacy under section 14(3) have not been satisfied. Section 14(2) provides some circumstances for the Board to consider in determining whether a disclosure of personal information would constitute an unjustified invasion of personal privacy. The Board submits that sections 14(2)(e), (f) and (h) are relevant considerations. The affected persons have also provided comments which I consider to be reflective of those provisions. If applicable, those circumstances would favour the protection of personal privacy. The appellant raises the type of circumstances found in section 14(2)(d) and specifically relies on section 14(2)(g) in support of his position. Section 14(2)(d) is a circumstance which, if relevant, would favour disclosure of personal information. These sections read: A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether, (d) the personal information is r


Legislation		MFIPPA 14(2)(d) 14(2)(f) 14(2)(h) 14(3) 2(1) personal information 22(1)(a)(ii) 38(b)


Subject Index		highly sensitive relevant to a fair determination of rights supplied in confidence


Published		Apr 22, 1993


Type		Order


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