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Document
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M-132
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Institution/HIC
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Regional Municipality of Waterloo
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Summary
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ORDER BACKGROUND: The Regional Municipality of Waterloo (the Region) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to any personnel records pertaining to the requester's unsuccessful application for a nursing aide position with the Region. The Region released the entire file to the requester with the exception of two records. One record was withheld in its entirety based on the exemption contained in section 38(c) of the Act . The other record was released with some information withheld, pursuant to section 14(1) of the Act . The requester appealed the Region's decision. During mediation, the appellant withdrew her appeal relating to the second record. As a result, only the record for which the section 38(c) exemption was claimed, remains at issue. This record is a form entitled "Reference Inquiry". It was used by an employee of the Region to document the collection of a job reference pertaining to the appellant. The form was completed by the employee who contacted a reference (the affected person) provided by the appellant by telephone. Notice that an inquiry was being conducted to review the Region's decision was sent to the appellant, the Region and to the affected person. Written representations were received from the appellant and the Region only. ISSUES: A. Whether any of 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, whether the record qualifies for exemption pursuant to the discretionary exemption provided by section 38(c) of the Act . SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether any of the information contained in the record qualifies as personal information as defined in section 2(1) of the Act . Section 2(1) of the Act states, in part, as follows: "personal information" means recorded information about an identifiable individual, including, ... (e) the personal opinions or views of the individual except if they relate to another individual, ... (g) the views or opinions of another individual about the individual, and (h) the individual's name if 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; It is clear that the record at issue contains the views and opinions of the affected person about the appellant in the context of the appellant's past employment and suitability for the new position. By virtue of sections 2(1)(e) and (g) of the Act , therefore, these views and opinions constitute the personal information of the appellant only. The Region has submitted that the affected person's name alone is the personal information of the affected person. I do not agree. Section 2(1)(h) clearly states that an individual's name can only constitute personal information in limited circumstances which do not apply in the present case. ISSUE B: If the answer to Issue A is yes, whether the record qualifies for exemption pursuant to the discretionary exemption provided by section 38(c) of the Act . I have found under Issue A that the information at issue qualifies as "personal information" under the Act . I must now determine if access to this information should be denied on the basis that it falls within the exemption provided by section 38(c) of the Act . Section 36(1) of the Act gives individuals a general right of access to personal information about themselves, which is in the custody or under the control of an institution. However, the right of access under section 36(1) is not absolute; section 38 provides a number of exemptions to this general right of access to personal information by the individual to whom it relates. Section 38(c) of the Act reads: A head may refuse to disclose to the individual to whom the information relates personal information, that is evaluative or opinion material compiled solely for the purpose of determining suitability, eligibility or qualifications for employment or for the awarding of contracts and other benefits by an institution if the disclosure would reveal the identity of a source who furnished information to the institution in circumstances where it may reasonably have been assumed that the identity of the source would be held in confidence; Section 38(c) of the Act attempts to address two competing interests. These are: (1) the right of an individual to have access to his or her personal information and (2) the need to protect the flow of frank information to provincial or municipal institutions so that appropriate decisions can be made respecting the awarding of jobs, contracts or other benefits. In Order 157, former Commissioner Sidney B. Linden established a three-part test for a record to qualify for exemption under section 49(c) of the provincial Freedom of Information and Protection of Privacy Act . Section 49(c) is the equivalent of section 38(c) of the Act . I adopt the general thrust of this test for the purposes of this appeal. This test specifies that, for a record to qualify for exemption under section 38(c) of the Act , an institution must establish that: 1. The personal information is evaluative or opinion material; 2. The personal information was compiled solely for the purpose of determining suitability, eligibility or qualifications for employment or for the awarding of government contracts and other benefits; 3. Disclosure of the personal information would reveal the identity of a source who furnished information to the institution in circumstances where it may reasonably have been assumed that the identity of the source would be held in confidence. In my view, in order for the third part of the test to more clearly address the complex wording found in section 49(c), it should be divided into two components. That is to say, an institution must establish that: (a) The information was supplied to the institution in circumstances where it may reasonably have been assumed that the identity of the source would be held in confidence; and (b) The disclosure of the record would reveal the identity of the source of the informat
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Legislation
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MFIPPA
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2(1) personal information
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2(1) personal information (e)
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2(1) personal information (g)
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2(1) personal information (h)
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38(c)
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Subject Index
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Published
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May 20, 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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