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Document
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MO-1570
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Institution/HIC
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Thames Valley District School Board
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Summary
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NATURE OF THE APPEAL: The Thames Valley District School Board (the Board) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to or copies of "all videotapes showing [the requester's son] and/or [another named individual] recorded in the halls and common areas of [a named secondary school]" at a specified date and time. The Board initially advised the requester that access to the videotape in question was denied pursuant to the law enforcement exemption in section 8 of the Act as the tape was then in the possession of the St. Thomas City Police. The tape was later returned to the Board by the Police following the conclusion of a criminal proceeding. The Board then advised the requester that access to the requested videotape was being denied under the invasion of privacy exemption in section 14(1) of the Act . The request was made by the father, in his capacity as the son's legal guardian. I will, therefore, treat this request has having been made jointly by both the father and son. The requester's son was assaulted at the school on April 12, 2001 and the requester is seeking access to any recorded images of the attack which might have been captured by one of the school's surveillance cameras. The requester's son was seriously injured as a result of the assault and a civil action against the individual who was criminally convicted in connection with this attack is now being contemplated by the requester, on behalf of his son. The requester, now the appellant, appealed the Board's decision to deny access to the videotape. During the mediation of the appeal, the Board decided to withdraw its reliance on the section 8 law enforcement exemption. In the Report of the Mediator that was provided to the parties at the conclusion of mediation, the possible application of section 38(b) of the Act was raised as the videotape appeared to contain the personal information of the son. As further mediation was not possible, the matter was moved into the adjudication stage of the appeal process. I decided to seek the representations of the Board, initially. The Board made submissions that were then shared, in their entirety, with the appellant, along with a copy of the Notice of Inquiry. The appellant indicated that he wished to rely on the submissions provided to this office earlier in the processing of this appeal. I also provided a Notice of Inquiry to 19 students whose images appear on the videotape, seeking their views on its disclosure to the appellant. I did not receive any representations from any of these individuals. The sole record at issue in this appeal is a videotape depicting the events of a specified date, between the hours of 11:00 a.m. and 1:00 p.m. and 2:00 p.m. and 3:00 p.m., as viewed by a camera located in a common area of a secondary school in St. Thomas. DISCUSSION: PERSONAL INFORMATION The term "personal information" is defined in section 2(1) of the Act to mean "recorded information about an identifiable individual". The Board takes the position that because the videotape consists of photographic images of identifiable students and staff (the affected persons), it contains their personal information, as that term is defined in section 2(1) of the Act . The appellants submit that because the video camera was located in a "quasi-public" area of the school, the affected persons do not have a reasonably-held expectation of privacy in the images captured by the cameras. This submission is not relevant to my determination of whether the tape contains personal information. However, I will address this point below in my discussion of the application of sections 14(1) and 38(b) of the Act . In addition, the appellants argue that the recorded information on the videotape is not about identifiable individuals as the names of the affected persons are not apparent to the viewer. Based on my review of the videotape and the submissions of the parties, I find that the videotape contains information which qualifies as "personal information" as that term is defined in section 2(1). The information clearly is recorded, albeit in video rather than written, form. The videotape reveals the faces and other physical characteristics of the affected persons and the appellant's son, as well as their locations and movements at certain times. In addition, given the fact that the appellant and/or his son would be familiar with most, if not all of these individuals, I find that they are identifiable. This finding is consistent with previous orders of this office regarding photographs, such as M-528, MO-1378 and MO-1410. INVASION OF PRIVACY Section 36(1) of the Act gives individuals a right of access to their own personal information held by an institution. Section 38, however, creates certain exceptions to that right of access. Under section 38(b) of the Act , where a record contains the personal information of both the appellant (or his son) and other individuals, the Board has the discretion to deny the appellant access to that information if it determines that the disclosure of the information would constitute an unjustified invasion of another individual's personal privacy. On appeal, I must be satisfied that disclosure of the record to the appellant would constitute an unjustified invasion of another individual's personal privacy (Orders M-1146 and MO-1535). Section 38(b) of the Act introduces a balancing principle. The Board must weigh the appellant's right of access to the personal information of his son against other individuals' right to the protection of their privacy. If the Board determines that 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 access to the personal information of the appellant's son. Sections 14(2), (3) and (4) 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. Those sections are relevant to the issues under both section 14(1) and section 38(b). Section 14(2) provides some criteria for the head to consider 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 disclosure of which are presumed to constitute an unjustified invasion of personal privacy. Section 14(4) refers to certain types of information whose disclosure of which does not constitute an unjustified invasion of personal privacy. With respect to section 14(3), the Divisional Court has held that once a presumption against disclosure has been established, it cannot be rebutted by one or more of the factors set out in 14(2) [ John Doe v. Ontario (Information and Privacy Commissioner ) (1993), 13 O.R. (3d) 767]. In other words, if section 14(3) is found to apply, the factors in section 14(2) cannot be resorted to in favour of disclosure. The Bo
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Legislation
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Subject Index
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Published
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Sep 17, 2002
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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