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M-710

Document		M-710


Institution/HIC		The Corporation of the Township of Howick


Summary		NATURE OF THE APPEAL: The Ministry of Housing (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to all records relating to three loan applications made under the Ontario Home Renewal Program (OHRP) by two elected officials of the Corporation of the Township of Howick (the Township). The requester is the former Township Clerk who alleges that an elected official misrepresented his/her family income on an OHRP application form and that another elected official stated on the OHRP application form that he/she had never received an OHRP loan, knowing that this was not the case. Pursuant to section 25(2) of the Freedom of Information and Protection of Privacy Act , the Ministry transferred the request to the Township as it appeared that the Township had a greater interest in the records requested. The Township located a number of records which were responsive to the request and granted access to copies of the minutes of Township Council meetings at which the loans were approved. The Township denied access to the remaining responsive records, claiming the application of section 14 of the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The requester appealed the Township's decision and raised the application of section 16 of the Act as he feels there exists a public interest in the disclosure of the records. A Notice of Inquiry was provided by the Appeals Officer to the Township, the appellant, the elected officials and their spouses who are the subjects of the appellant's allegations (the affected persons). Representations were received from all of the parties. The responsive records consist of correspondence between the Township and its solicitor, various land registration documents, six loan application forms, inspection reports, repair estimates and invoices, income tax returns, insurance policies, sheriff's certificates and correspondence between the loan applicants and their bank, all of which relate to the OHRP loans. DISCUSSION: PERSONAL INFORMATION 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 records at issue and find that they contain the personal information of the elected officials, as well as their spouses. The appellant's name appears in several of the records where he has executed documents in his capacity as Township Clerk. As such, I find that this information cannot be characterized as the appellant's personal information as his name appears only in connection with his professional duties as Clerk. Once it has been determined that a record contains personal information, section 14(1) of the Act prohibits the disclosure of this information unless one of the exceptions listed in the section applies. The only exception which might apply in the circumstances of this appeal is section 14(1)(f), which permits disclosure if it "... does not constitute an unjustified invasion of personal privacy". Sections 14(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of personal information would result in an unjustified invasion of personal privacy. Where one of the presumptions in section 14(3) applies to the personal information found in a record, the only way such a presumption against disclosure can be overcome is if the personal information falls under section 14(4) or where a finding is made that section 16 of the Act applies to the personal information. The parties to this appeal have agreed, and I concur, that the presumptions contained in sections 14(3)(e) (tax return information) and (f) (financial information) apply to all of the personal information contained in the records. The appellant submits that the considerations listed in sections 14(2)(a) (public scrutiny of an institution) and 14(2)(d) (fair determination of rights) are factors which weigh in favour of the disclosure of the personal information which is contained in the records, regardless of the application of the presumption. As previously noted, the only way in which a presumption under section 14(3) of the Act can be overcome is where the information falls within section 14(4) of the Act or where the public interest override in section 16 is found to apply. Regardless of the applicability of factors listed in section 14(2), they are not sufficient to override the application of the section 14(3) presumptions. In this appeal, the information at issue does not fall within section 14(4). As I have found that the presumptions in sections 14(3)(e) and (f) apply, the records are exempt from disclosure under section 14(1). I will now proceed to address the arguments of the appellant concerning the applicability of section 16. PUBLIC INTEREST IN DISCLOSURE Section 16 of the Act states: An exemption from disclosure of a record under sections 7, 9, 10, 11, 13 and 14 does not apply if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption. (my emphasis) In Order P-984, Inquiry Officer Holly Big Canoe examined the component parts of section 23 of the provincial Act , which is the equivalent of section 16 of the Act . She held that: There are two requirements contained in section 23 which must be satisfied in order to invoke the application of the so-called "public interest override": there must be a compelling public interest in disclosure; and this compelling public interest must clearly outweigh the purpose of the exemption. The appellant submits that because the loan applicants are public officials, their conduct must be subject to a higher standard than that expected of members of the public. He argues that there exists a compelling public interest that public officials be honest and that the public is entitled to information which may tend to demonstrate dishonesty. Further, the appellant submits that it is in the public interest that elected officials do not "secretly enrich themselves at the expense of the public". The Township and the affected persons submit that there does not exist any public interest in the disclosure of the requested records. The Township argues that the "appellant seems to be the only member of the public who has an interest in the


Legislation		MFIPPA 14(3)(e) 14(3)(f) Section 16


Subject Index		honesty of elected officials


Published		Feb 15, 1996


Type		Order


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