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Document
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M-522
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Institution/HIC
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County of Grey
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Summary
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NATURE OF THE APPEAL: The appellant, a newspaper reporter, made a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to all Notices of Intent (the Notices) submitted to the County of Grey (the County) in the previous twelve months under the County's Tree By-law 3132-88 (the By-Law). The record consists of 253 Notices, and a blank copy of a Notice is attached as Appendix "A". The County denied access to the Notices based on the following exemption: invasion of privacy - section 14(1). During mediation, the appellant excluded from the scope of the appeal the information in the Notices following the headings, Intended Starting Date and Name and Address of Person in Charge of Cutting . A Notice of Inquiry was provided to the appellant and the County. Because of the large number of persons whose interests could be affected by disclosure of the Notices (the affected persons) and the lack of addresses in many cases, 24 affected persons were selected as a representative sample and invited to provide representations on the issues arising in the appeal. Due to the nature of the information at issue, the parties were asked to provide representations on whether section 10 of the Act (third party information), a mandatory exemption, applied to the Notices. Representations were received from the appellant, the County and four affected persons. PRELIMINARY MATTER: THE RAISING OF ADDITIONAL DISCRETIONARY EXEMPTIONS LATE IN THE APPEALS PROCESS Upon receipt of the appeal, this office provided the County with a Confirmation of Appeal notice. This notice indicated that the County had 35 days from the date of the notice (an expiry date was provided) to raise any additional discretionary exemptions not claimed in the decision letter. No additional exemptions were raised during this period. Subsequently, in its representations, the County raised the application of the discretionary exemptions provided by sections 8(1)(a), (b) and (c) of the Act . By this time the expiry date provided in the Confirmation of Appeal had passed by over two months. It has been determined in previous orders that the Commissioner has the power to control the process by which the inquiry is undertaken (Orders P-345 and P-537). This includes the authority to set time limits for the receipt of representations and to limit the time during which an institution can raise discretionary exemptions not claimed in its original decision letter. In Order P-658, Inquiry Officer Anita Fineberg concluded that in cases where a discretionary exemption(s) is claimed late in the appeals process, a decision maker has the authority to decline to consider the discretionary exemption(s). I agree with Inquiry Officer Fineberg's reasoning and adopt it for the purposes of this appeal. The County has provided no explanation for the delay in raising the additional discretionary exemptions. In my view, a departure from the 35-day timeframe is not justified in the circumstances of this appeal. Therefore, I will not consider the application of sections 8(1)(a), (b) or (c) in this order. 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, including the individual's name where 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. The appellant submits that the information in the Notices is related to persons in their business rather than their personal capacities. The affected persons have not directly addressed this issue in their representations. The County submits that the information at issue meets the definition of "personal information" in that it describes the affected persons' financial transactions. The County has provided me with a copy of the Trees Act and By-Law No. 3132-88. Section 4(1) of the Trees Act authorizes the council of any county to pass by-laws restricting and regulating the destruction of trees by cutting and other means. The County enacted its By-Law in 1988 pursuant to this section of the Trees Act . Section 2 of the By-Law is found under the heading, EXCEPTION - GENERAL and reads, in part: This By-Law shall not: a) apply to any person or activity referred to in Section 5 of The Trees Act R.S.O. 1980, C.510 except subsection (1) (e) thereof. ... Sections 5(1)(a) and (e) of the Trees Act read: A by-law passed under subsection 4(1), or any predecessor thereof, does not (a) interfere with a right of a person who has been a registered owner of land for at least two years to cut trees thereon for the person's own use; (e) apply to trees growing in a woodlot that is two acres or less in area, unless the by-law provides expressly that it applies to trees in such a woodlot; [Section 4(2) of the By-Law addresses this provision] Section 5(2) of the Trees Act reads: The expression "own use" in clause (1)(a) shall be deemed not to include any sale, exchange or other disposition of the trees that are cut. I conclude from these sections that Notices are to be submitted by persons intending to cut trees not for their own personal use, but for commercial or business purposes only. In Order M-412, Assistant Commissioner Irwin Glasberg stated: Based on the evidence before me, I find that the records refer to the individuals in a business as opposed to a personal capacity. For this reason, I conclude that the names do not constitute personal information for the purposes of the Act . I adopt Assistant Commissioner Glasberg's reasoning. In my view, the information in the Notices relates to individuals in their business not personal capacities. It is also clear from reviewing the Notices that in some cases, the persons identified are companies or organizations, not individuals as described in the definition of "personal information". Since I have found that the information in the Notices is not personal information, it follows that section 14(1) does not apply. THIRD PARTY INFORMATION <
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Legislation
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MFIPPA
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10(1)(a)
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10(1)(b)
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10(1)(c)
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Subject Index
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Published
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May 11, 1995
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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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