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Document
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M-180
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Institution/HIC
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City of North York
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Summary
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ORDER BACKGROUND: The City of North York (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to a copy of a complaint letter about the requester written by a neighbour. The City notified the neighbour who had written the complaint letter of the request, and the neighbour objected to disclosure of her letter. The City subsequently denied access to the complaint letter, based on sections 8(1)(d), 14 and 38(a) and (b) of the Act . The requester appealed the City's decision. Mediation was not successful and notice that an inquiry was being conducted to review the City's decision was sent to the appellant, the City and the neighbour. Representations were received from all parties. In its representations, the City indicates that it is no longer relying on sections 8(1)(d) and 38(a) of the Act . While the representations were being considered, Commissioner Tom Wright issued Order M-170, adopting the Ontario Court (General Division) (Divisional Court) June 30, 1993 decision in the case of John Doe et al. v. Information and Privacy Commissioner et al. (unreported). This decision interpreted several provisions of the Act in a way which differed from the interpretation developed in orders of the Commissioner. Since similar statutory provisions were also at issue in the present appeal, it was determined that copies of Order M-170 should be provided to the parties. The appellant and the Ministry were provided with the opportunity to change or to supplement the representations previously submitted. No additional representations were received. PRELIMINARY ISSUE: The appellant states that an official from the City met with the her to discuss the complaint letter and that she was allowed to read the complaint letter during that meeting. At the meeting, the appellant asked the official to mail her a copy of the letter. Subsequent to her request, the appellant received a decision from the City indicating that it was denying access to the complaint letter, based on certain provisions of the Act . In Order P-274, former Assistant Commissioner Tom Mitchinson dealt with a similar issue. In that appeal, the records in issue had been read to the appellant during the course of two meetings. Following the meetings the appellant made a formal request for access under the Act . The institution informed the appellant that access to certain portions of the records was denied, on the basis that certain exemptions applied. The appellant maintained that he had been given access to the records that he viewed, and was entitled to copies. Assistant Commissioner Mitchinson did not accept the appellant's position in that appeal. He found the intention of the institution is an important fact in determining whether access under the Act has been provided. Assistant Commissioner Mitchinson stated: ... in order to be provided with access for the purposes of the Act, there must be some evidence that the institution has treated the matter as coming under the provisions of the Act . In the circumstances of the current appeal, I am satisfied that if and when the records were read to the appellant, the institution was not intending to provide access under the Act . In making this decision, I am particularly mindful of the fact that the institution clearly did not consider the notice provisions ... of the Act prior to reading the documents to the appellant. I agree. The City submits that it did not intend to provide access to the record under the Act : It is the position of the [City] that the act of allowing the appellant to read the record must not be construed as the [City] having originally granted access to the record under section 23(1) of the Municipal Freedom of Information and Protection of Privacy Act (the "Act"). At the time the record was shown to the appellant, it was done so without any consideration of the provisions of the Act. The decision to allow the appellant to read the record was not made by the Head of the Institution, therefore intent to release the record under the Act was not present. In the circumstances of this appeal, it is my view that access under the Act has not been provided to the appellant. ISSUES: A. Whether the information contained in the record qualifies as "personal information" as defined in section 2(1) of the Act . B. If the answer to Issue A is yes, and the personal information is that of the appellant and another individual, whether the discretionary exemption provided by section 38(b) of the Act applies. C. If the answer to Issue A is yes, and the personal information is solely that of another individual, whether the mandatory exemption provided by section 14 of the Act applies. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the information contained in the record qualifies as "personal information" as defined in section 2(1) of the Act . "Personal information" is defined in section 2(1) of the Act , in part, as "recorded information about an identifiable individual". Having reviewed the record, I am satisfied that it contains the personal information of both the appellant and the appellant's neighbour. Because I have found that the personal information is that of the appellant and another individual, it is not necessary for me to consider Issue C. ISSUE B: If the answer to Issue A is yes, and the personal information is that of the appellant and another individual, whether the discretionary exemption provided by section 38(b) of the Act applies. In Issue A, I found that the record contains the personal information of the appellant and the appellant's neighbour. Section 36(1) of the Act gives individuals a general right of access to any personal information about themselves in the custody or under the control of an institution. 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) of the Act , 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;
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Legislation
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MFIPPA
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14(2)(h)
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14(3)(f)
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2(1) personal information
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38(b)
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Subject Index
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Published
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Aug 30, 1993
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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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