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Document
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M-212
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Institution/HIC
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Municipality of Metropolitan Toronto
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Summary
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ORDER BACKGROUND: The Municipality of Metropolitan Toronto (the Municipality) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to any documents relating to the complaints of workplace harassment that were made by a named individual (the primary affected person) against the requester. The Municipality provided the requester with access to many records, but denied access to all or parts of certain records pursuant to sections 7, 8, 11, 14 and 38(a) and (b) of the Act . The requester appealed the decision of the Municipality. Mediation of this appeal was partially successful. The Municipality provided the appellant with all or parts of certain records to which it had previously denied access. The appellant was informed that many of the records and parts of records still in issue contained material unrelated to the subject of the request, and the parties agreed that these records or parts thereof no longer formed part of the records remaining in issue. The appellant also agreed that he did not wish to obtain access to the names and addresses of affected persons, and that he had no objection to such information being severed from the records. The scope of the appeal was limited accordingly. Agreement could not be reached with respect to the remaining records however, and the matter proceeded to inquiry. The Notice of Inquiry was sent to the appellant, the Municipality, the primary affected person, and 14 persons whose interests might be affected by disclosure of the information at issue (the secondary affected persons). Representations were received from the appellant, the Municipality, and the primary affected person. In its representations, the Municipality indicated that it was no longer relying on the exemptions provided by sections 8 and 11 of the Act . THE RECORD: The record consists of memoranda prepared by supervisors and officials of the Municipality, supervisors' notes, correspondence and ambulance call reports. All were created or are associated with the Municipality's investigation of complaints of harassment made against the appellant. The pages remaining at issue may be characterized as follows: Memoranda: 84, 122-25, 127-33, 143-44, 155-59, 163, 165, 175-76, 188-95 Supervisors' Notes: 91, 153-54, 182-85, 187 Correspondence: 83, 162 Ambulance call reports: 172-74 ISSUES: The issues remaining in this appeal are as follows: A. Whether the information contained in the records 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 relates to the appellant and other identifiable individuals, whether the discretionary exemption provided by section 38(b) of the Act applies. C. Whether the discretionary exemptions provided by sections 7 and 38(a) of the Act apply. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the information contained in the records qualifies as "personal information" as defined in section 2(1) of the Act . The term "personal information" is defined in section 2(1) of the Act as follows: ... recorded information about an identifiable individual, including, (b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved, (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, I have reviewed the pages at issue and am satisfied that they contain information about the appellant and other identifiable individuals, therefore satisfying the definition of "personal information" as set out in section 2(1) of the Act . ISSUE B: If the answer to Issue A is yes, and the personal information relates to the appellant and other identifiable individuals, whether the discretionary exemption provided by section 38(b) of the Act applies. Under Issue A, I found that the records contain the personal information of the appellant and other identifiable individuals. 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), 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; Section 38(b) introduces a balancing principle. The Municipality must look at the information and weigh the requester's right of access to his/her own personal information against the rights of other individuals to the protection of their personal privacy. If the Municipality determines that release of the information would constitute an unjustified invasion of the other individuals' personal privacy, then section 38(b) gives the Municipality the discretion to deny the requester access to his/her own personal information. In my view, where personal information relates to the requester, the onus should not be on the requester to prove that disclosure of the personal information would not constitute an unjustified invasion of the personal privacy of another individual. Since the requester has a right of access to his/her own personal information, the only situation under section 38(b) in which he/she can be denied access to the information is if it can be demonstrated that disclosure of the information would constitute an unjustified invasion of another individual's privacy. 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 another individual's personal privacy. Section 14(3) lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of perso
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Legislation
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MFIPPA
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14(2)(d)
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14(2)(f)
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14(2)(g)
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14(2)(h)
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14(2)(i)
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14(3)
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2(1) personal information
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38(a)
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38(b)
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7(1)
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Subject Index
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Published
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Nov 09, 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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