Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The appellant made a request under the Municipal Freedom of Informationand Protection of Privacy Act (the Act ) to the Regional Municipalityof Haldimand-Norfolk (the Municipality). The request was for access to a recordrelating to a municipal by-law enforcement matter. The Municipality located arecord responsive to the request and denied access to it based on the exemptionsin section 8(1) (law enforcement) and section 12 (solicitor-client privilege) ofthe Act . The appellant appealed the Municipality's decision. This office provided a Notice of Inquiry to the appellant, the Municipalityand the individual to whom the record relates (the affected person). As therecord at issue appears to contain personal information, the Appeals Officerraised the possible application of section 14 of the Act (invasion ofprivacy). Representations were received from the Municipality only. RECORD: The record at issue in this appeal consists of a two page letter written toone of the Municipality's By-Law Enforcement Officers by counsel for theaffected person regarding a by-law enforcement matter. DISCUSSION: INVASION OF PRIVACY Under section 2(1) of the Act , "personal information" isdefined, in part, to mean recorded information about an identifiable individual. The record relates to a by-law enforcement matter regarding the affectedperson's commercial use of his property. Many previous orders of this officehave held that information about an individual in his or her professional orbusiness capacity does not qualify as personal information. However, in thecircumstances of this appeal, the information in the record pertains to theadvice given to the affected person by his counsel, and I find that it concernsthe affected person personally. Accordingly, I find that the record containsthe personal information of the affected person only. Once it has been determined that a record contains personal information,section 14(1) of the Act prohibits the disclosure of this informationexcept in certain circumstances. Sections 14(2), (3) and (4) of the Act provide guidance indetermining whether disclosure of personal information would result in anunjustified invasion of personal privacy. Where one of the presumptions insection 14(3) applies to the personal information found in a record, the onlyway such a presumption against disclosure can be overcome is if the personalinformation falls under section 14(4) or where a finding is made that section 16of the Act applies to the personal information. If none of the presumptions in section 14(3) apply, the Municipality mustconsider the application of the factors listed in section 14(2) of the Act ,as well as all other circumstances that are relevant in the circumstances of thecase. The Municipality submits that disclosure of the letter would result in anunjustified invasion of personal privacy as the options available to theaffected person which are referred to in the letter, if disclosed, could have anegative effect on his business plans. The Municipality argues that prematurerelease of this information will prejudice the affected person's rights inconsidering his counsel's advice with respect to an Ontario Municipal Boardre-hearing of the matter in contention. The appellant did not submit representations in this appeal. In my view, Ihave not been provided with sufficient information for me to conclude that anyof the factors which favour disclosure of the personal information apply in thecircumstances of this appeal. In the absence of any factors favouring disclosure, therefore, I find thatthe mandatory exemption provided by section 14(1) of the Act applies tothe personal information contained in the record. ORDER: I uphold the Municipality's decision. Original signed by: Laurel Cropley, Inquiry Officer October 28, 1997
Decision Content
ORDER M-1025
Appeal M‑9700189
Regional Municipality of Haldimand‑Norfolk
NATURE OF THE APPEAL:
The appellant made a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) to the Regional Municipality of Haldimand-Norfolk (the Municipality). The request was for access to a record relating to a municipal by-law enforcement matter. The Municipality located a record responsive to the request and denied access to it based on the exemptions in section 8(1) (law enforcement) and section 12 (solicitor-client privilege) of the Act. The appellant appealed the Municipality’s decision.
This office provided a Notice of Inquiry to the appellant, the Municipality and the individual to whom the record relates (the affected person). As the record at issue appears to contain personal information, the Appeals Officer raised the possible application of section 14 of the Act (invasion of privacy).
Representations were received from the Municipality only.
RECORD:
The record at issue in this appeal consists of a two page letter written to one of the Municipality’s By-Law Enforcement Officers by counsel for the affected person regarding a by-law enforcement matter.
DISCUSSION:
INVASION OF PRIVACY
Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded information about an identifiable individual.
The record relates to a by-law enforcement matter regarding the affected person’s commercial use of his property. Many previous orders of this office have held that information about an individual in his or her professional or business capacity does not qualify as personal information. However, in the circumstances of this appeal, the information in the record pertains to the advice given to the affected person by his counsel, and I find that it concerns the affected person personally. Accordingly, I find that the record contains the personal information of the affected person only.
Once it has been determined that a record contains personal information, section 14(1) of the Act prohibits the disclosure of this information except in certain circumstances.
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 personal privacy. Where one of the presumptions in section 14(3) applies to the personal information found in a record, the only way such a presumption against disclosure can be overcome is if the personal information falls under section 14(4) or where a finding is made that section 16 of the Act applies to the personal information.
If none of the presumptions in section 14(3) apply, the Municipality must consider the application of the factors listed in section 14(2) of the Act, as well as all other circumstances that are relevant in the circumstances of the case.
The Municipality submits that disclosure of the letter would result in an unjustified invasion of personal privacy as the options available to the affected person which are referred to in the letter, if disclosed, could have a negative effect on his business plans. The Municipality argues that premature release of this information will prejudice the affected person’s rights in considering his counsel's advice with respect to an Ontario Municipal Board re-hearing of the matter in contention.
The appellant did not submit representations in this appeal. In my view, I have not been provided with sufficient information for me to conclude that any of the factors which favour disclosure of the personal information apply in the circumstances of this appeal.
In the absence of any factors favouring disclosure, therefore, I find that the mandatory exemption provided by section 14(1) of the Act applies to the personal information contained in the record.
ORDER:
I uphold the Municipality’s decision.
Original signed by: October 28, 1997
Laurel Cropley
Inquiry Officer