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Document
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MO-1460-F
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Institution/HIC
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Appeal MA-000004-1 Nottawasaga Valley Conservation Authority
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Summary
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BACKGROUND AND NATURE OF THE APPEAL: This order represents my final order in respect of the outstanding issuefrom Interim Order MO-1435-I. The Nottawasaga Valley Conservation Authority (the NVCA) received arequest from counsel for a named ski resort as represented by a namedindividual (the representative) under the Municipal Freedom of Informationand Protection of Privacy Act (the Act ) for: copies of all correspondence and documents regarding [five named individuals] for [a named] Secondary Plan and [the named ski resort] for the period January, 1997 to the present date of November 1, 1999. The NVCA identified a number of responsive records and, after contactingthe five named individuals (the affected persons) to determine their viewsregarding disclosure, granted access to them, in part. The NVCA denied accessto the remaining records, which it had identified as being responsive, underthe discretionary exemption in sections 8(1)(a) and (b) (law enforcement) andthe mandatory provisions under section 14(1) (invasion of privacy) of the Act . The NVCA also cited the mandatory personal information exemption undersection 14(5) of the Act to refuse to confirm or deny whether otherresponsive records exist. The ski resort and its representative (collectively, the appellant)appealed the NVCA's decision. After considering the representations that were submitted by the NVCA,the primary affected person and the appellant, I issued Interim OrderMO-1435-I. In that order, I upheld the NVCA's decision to refuse to confirm ordeny the existence of records relating to two of the affected personsidentified by the appellant. I also determined that the NVCA did not properlyinvoke section 14(5) in refusing to confirm or deny the existence of recordsrelating to the primary affected person (which represents two of theindividuals named by the appellant) and identified that certain additionalrecords exist. I further found that the presumption in section 14(3)(b)(information compiled as part of an investigation into a possible violation oflaw) and the factor in section 14(2)(h) (information supplied in confidence)applied to a number of the records at issue and would apply to others thatmight exist. As part of the analysis in arriving at the above conclusions, I foundthat the records that were identified both by the NVCA and in the order, aswell as those that might exist contained/would contain the personal informationof the appellant's representative. In so finding, I noted that it was notreadily apparent from the records or the circumstances that the recordscontained/might contain this individual's personal information. Rather, mydecision in this regard was based on information provided by the appellant inits representations. As a result of this finding, my analysis of the issues was conductedpursuant to the discretionary exemption in section 38(b) of the Act .This section provides the NVCA with discretion to balance two competinginterests, the appellant's right of access to his personal information and theother identifiable individuals' rights to privacy. If the NVCA were to concludethat the balance weighs in favour of disclosure, the records could be releasedto the appellant, even if the NVCA has determined that this disclosure wouldrepresent an unjustified invasion of the other individuals' privacy. I consequently found that, because the NVCA had not considered thepossible application of section 38(b), it had not turned its mind to therelevant circumstances of this particular case in balancing the appellant'sright of access to his own personal information and the affected persons'rights to privacy. I included a provision in Interim Order MO-1435-I requiringthe NVCA to exercise discretion under section 38(b) with respect to the recordsat issue in the appeal as well as to its decision to refuse to confirm or denythe existence of other records and to provide me with representations as to thefactors considered in doing so. I received representations from the NVCA in compliance with thisprovision and subsequently sought representations in response from theappellant. I did not provide the appellant with the NVCA's representations butrather, summarized them in the Supplementary Notice of Inquiry that I sent toit. The appellant submitted representations in response. DISCUSSION: Exercise of Discretion An institution's exercise of discretion must be made in fullappreciation of the facts of the case, and upon proper application of theapplicable principles of law. It is my responsibility to ensure that thisexercise of discretion is in accordance with the Act . If I concludethat discretion has not been exercised properly, I can order the institution toreconsider the exercise of discretion (Order 58). Commenting on what constitutes a proper exercise of discretion in OrderMO-1277-I, Assistant Commissioner Tom Mitchinson stated: In Order P-344, I considered the question of the proper exercise of discretion as follows: ... In order to preserve the discretionary aspect of a decision ... the head must take into consideration factors personal to the requester, and must ensure that the decision conforms to the policies, objects and provisions of the Act . In considering whether or not to apply [certain discretionary exemptions], a head must be governed by the principles that information should be available to the public; that individuals should have access to their own personal information; and that exemptions to access should be limited and specific. Further, the head must consider the individual circumstances of the request. My reasoning in Order P-344 is equally applicable to the exercise of discretion under section 38(b) of the Act in the present appeal. NVCA's Position The NVCA states that in order to continue to foster a good, trustingrelationship with parties who are or may be involved with it, it is importantthat the NVCA upholds parties' wishes pertaining to the release of informationon the one hand, and on the other, to ensure that they understand that the NVCAunderstands and adheres to the Act . The NVCA states further that the affected persons all indicated thatthey did not, in some cases, wish any information to be released, or, in othercases, wish the existence of any information to be confirmed or denied. The NVCA notes that many of the records that were identified (in
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Legislation
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Subject Index
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Published
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Aug 22, 2001
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Type
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Order – Final
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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