Access to Information Orders

ORDER P-1603

 

Appeal P_9800014

 

Ministry of the Attorney General

 

 

BACKGROUND:

 

In 1995, the Government of Ontario created the Victims of Abuse in Provincial Institutions Office (the VOAPI Office) which assumed responsibility for the finalization and implementation of settlement agreements relating to victims of abuse at the St. John’s/St. Joseph’s and Grandview Training Schools.  The settlement agreements were initially negotiated by an independent committee titled the Reconciliation Process Implementation Committee (the RPIC) made up of representatives of the victims of abuse, the Government of Ontario, the Roman Catholic Church and the Christian Brothers.  The VOAPI Office received applications from victims of abuse and verified that the information contained in each application was genuine.  An Adjudicator then made a determination on a balance of probabilities as to whether the abuse alleged had in fact taken place.  Compensation was then paid to the victims.  The VOAPI Office was disbanded on March 31, 1998 and is now closed.

 

It should be noted that the VOAPI Office did not conduct any investigations into the conduct of any of the alleged perpetrators of the abuse which was the subject of the complaints.  Separate investigations were conducted by the Ontario Provincial Police (the OPP) into possible criminal charges against the individuals about whom the allegations were made.

 

NATURE OF THE APPEAL:

 

The Ministry of the Attorney General (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act).  The request was made on behalf of an individual against whom allegations of abuse were made and was for information and documents held by the VOAPI Office and the Criminal Injuries Compensation Board (the CICB).  The requester sought access to any applications for compensation which may have been based on crimes alleged to have been committed by the requester when he was employed as a staff member at the St. John’s Training School in Uxbridge, Ontario.   

 

The Ministry located a number of responsive records which were maintained by the VOAPI Office and denied access to them, in their entirety, claiming the application of the following exemptions contained in the Act:

 

∙                      law enforcement - sections 14(1)(a) and (b)

∙                      discretion to refuse requester’s own information - section 49(a)

∙                      invasion of privacy - sections 21(1) and 49(b)

 

No responsive records were located in the office of the CICB. 

 

The requester, now the appellant, appealed the Ministry’s decision to deny access to the responsive records, which consist of various documents pertaining to three applications for compensation received by the VOAPI Office.  The Ministry included an additional one-page document which appears to pertain to a further application, though I am unable to determine on the face of this record whether this application contains allegations of abuse against the appellant.

 

Shortly after receipt of the Confirmation of Appeal issued by the Commissioner’s office, the appellant provided his submissions on the application of the exemptions claimed by the Ministry to the records described in the Ministry’s decision letter.  A Notice of Inquiry was later provided to the appellant, the Ministry and to three individuals whose rights may be affected by the disclosure of the information contained in the records.  As noted above, representations were received from the appellant and, in response to the Notice of Inquiry, from the Ministry.

 

DISCUSSION:

 

PERSONAL INFORMATION

 

Section 2(1) of the Act defines “personal information”, in part, as recorded information about an identifiable individual, including the individual’s name where 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.  I have reviewed the records and find that, as the majority of them pertain to compensation applications received by the VOAPI Office from the affected persons, they contain the personal information of one or more of these individuals. 

 

In addition, I find that some of the records also contain the personal information of other individuals who are identified in the statements which accompanied the applications.  Some of these individuals are identified as residents of the St. John’s Training School, family of the applicants and staff members at the school.  Because three of the application statements also contain allegations of abuse against the appellant, some of the records also include the personal information of the appellant.  Specifically, Records 16 to 19, 28, 29, 67, 74, 75, 90 and 91 contain the personal information of the appellant, as well as that of other identifiable individuals, including the affected persons.

 

However, Records 6, 7, 8, 34, 80 and 103 are portions of the forms provided to potential applicants  for compensation by the VOAPI Office.  These pages do not include any personal information.  As such, they cannot be exempt from disclosure under sections 21(1) or 49(b).

 

INVASION OF PRIVACY

 

Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body.  Section 49 provides a number of exceptions to this general right of access.

 

Under section 49(b) of the Act, where a record contains the personal information of both the appellant and other individuals and the Ministry determines that the disclosure of the information would constitute an unjustified invasion of another individual’s personal privacy, the Ministry has the discretion to deny the appellant access to that information.

 

In addition, where a record does not contain the appellant’s personal information but does contain personal information of another individual or individuals, section 21(1) of the Act prohibits disclosure of this information unless one of the exceptions listed in that section is applicable.  In this appeal, the only exception which could apply is section 21(1)(f), which permits disclosure if it “... does not constitute an unjustified invasion of personal privacy”.

 

The appellant submits that section 21(1)(d) applies in the circumstances of this appeal.  Section 21(1)(d) also provides an exception to the general prohibition against the disclosure of personal information to any person other than the individual to whom it relates.  This section states:

 

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

 

under an Act of Ontario or Canada that expressly authorizes the disclosure.

 

The appellant argues that the Ministry is in possession of certain statements and submissions which were made to the CICB by the affected persons, pursuant to the Compensation for Victims of Crime Act (the CVCA).  He states that, under section 9(1) of the CVCA, notice of the hearing of an application before the Board or one of its members is to be served on any person having an interest in the application.  The appellant argues that because he was the alleged offender named in an application made to the Board, the information included in the application falls within the exception in section 21(1)(d).

 

In Order P-1528, which involved a request by the present appellant for information relating to the OPP investigation into allegations of abuse made against him, I found that section 9(1) of the CVCA states only that interested parties to an application before the Board or one of its members are entitled to notice of the hearing.  I went on to find that section 9(1) of the CVCA does not “expressly authorize” the disclosure of the information which substantiates an application to the Board, as is contemplated by section 21(1)(d).  For this reason, I found that the exception in section 21(1)(d) had no application in the circumstances of that appeal.

 

Similarly, I find the “express authorization” for the disclosure of information in support of a compensation application is not present in either section 9(1) of the CVCA or the protocols governing the evaluation of applications to the VOAPI Office.  For this reason, I find that section 21(1)(d) has no application in the present appeal.

 

The Ministry has denied access to all of the records under either sections 21(1) or 49(b).  I must, accordingly, determine whether those records which contain only the personal information of individuals other than the appellant are exempt under section 21(1).  I will also determine whether those records which include the personal information of both the appellant and other identifiable individuals are exempt under section 49(b).

In considering the possible application of sections 49(b) and 21(1), sections 21(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of personal information would constitute an unjustified invasion of personal privacy.  Disclosing the types of personal information listed in section 21(3) is presumed to be an unjustified invasion of personal privacy.  If one of the presumptions applies, the ruling of the Divisional Court in John Doe v. Ontario (Information and Privacy Commissioner) (1993) 13 O.R. 767 makes it clear that an institution can disclose the personal information only if it falls under section 21(4) or if the “public interest override” in section 23 applies to it.

 

If none of the presumptions contained in section 21(3) apply, the Ministry must consider the application of the factors listed in section 21(2) of the Act, as well as all other considerations that are relevant in the circumstances of the case.

 

The Ministry submits that the records contain information which falls within the presumptions in sections 21(3)(a), (b) and (d).  These sections state:

 

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,

 

(a)        relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

 

(b)        was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

 

(d)       relates to employment or educational history;

 

Further, the Ministry argues that the considerations listed in sections 21(2)(f) and (h) apply to the personal information in the records.  These sections state:

 

A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

 

(f)        the personal information is highly sensitive;

 

(h)        the personal information has been supplied by the individual to whom the information relates in confidence;

 

The appellant submits that the consideration listed in section 21(2)(d) (that the personal information is relevant to a fair determination of his rights) applies in the circumstances of this appeal.  In addition, the appellant argues that the affected persons have a “diminished expectation of privacy” as a result of their actions in initiating an application for compensation before either the CICB or the VOAPI Office.  He indicates that, based on the reasoning contained in Order P-1136, this unlisted factor is a consideration which favours a finding that disclosure would not result in an unjustified invasion of the personal privacy of the affected persons.

 

In addition, the appellant submits that the personal information contained in the records may be disclosed under section 23 of the Act if there exists a compelling public interest in the disclosure of the information.  The appellant raises concerns about the integrity of the CICB and the VOAPI Office because of the involvement of a named individual in the compensation process.  He further submits that the affected persons and the parties to the compensation scheme operated by the VOAPI Office must expect public scrutiny of the arrangements they have made with the Government of Ontario.

 

 Records which contain the personal information of the appellant

 

I have found above that Records 16 to 19, 28, 29, 67, 74, 75, 90 and 91 contain the personal information of the appellant, as well as other identifiable individuals, including the affected persons.  These records relate directly to the allegations of abuse made by the affected persons against the appellant.  They contain, in graphic detail, the nature of the abuse which they allegedly suffered as a result of the actions of the appellant. 

 

The Ministry points out that the information contained in the applications for compensation made to the VOAPI Office, unlike those which would be made to the CICB, were not shared with the perpetrators.  This was done to ensure the confidentiality of the reconciliation process with respect even to the existence of such an application and to ensure that potential victims would come forward to report occurrences without fear of repercussions.  It argues that if the process had not been set up in this way, it would discourage victims from coming forward.  In some cases, where police agencies had become involved in the investigation of the allegations made, any statements provided to the police agency would also form part of the documentation relied upon in the application and compensation process.

 

The appellant submits that he has been wrongly accused of abuse against the former wards at the St. John’s Training School.  The appellant indicates that as a result of the complaints of abuse made against him, he has lost his employment and that he intends to seek a legal remedy against those who brought forward these unfounded allegations.  He states further that the personal information which he is seeking has a bearing on and is significant to the determination of his rights and is required by him to prepare for the proceeding.

 

In my view, because of the very nature of these allegations, the information contained in Records  16 to 19, 28, 29, 67, 74, 75, 90 and 91 is highly sensitive in nature, within the meaning of section 21(2)(f).  In addition, examining the process undertaken by the VOAPI Office in the processing of these applications, I find that the information contained in the applications was implicitly supplied to the VOAPI Office with an expectation of confidentiality, as contemplated by section 21(2)(h).

 

Based on my review of these records, I do not agree that the disclosure of this information will materially assist the appellant in pursuing any legal remedies which he feels he may have against either the affected persons or the parties to the agreements which gave rise to the compensation arrangements administered by the VOAPI Office.  Accordingly, I find that the disclosure of this personal information is only remotely relevant to a fair determination of his rights within the meaning of section 21(2)(d).

 

In addition, I cannot agree that the affected persons had any “diminished expectation of privacy” with respect to the information contained in their applications for compensation.  It is clear from the protocols of the VOAPI Office that the information received from victims of abuse would be treated in a confidential manner and that this practice was communicated to the applicants clearly.

 

Upon reading the applications submitted to the VOAPI Office by the affected persons, it is clear to me that these individuals suffered enormously as a result of their incarceration at the St. John’s Training School.   While I am not in a position to make a finding with respect to the allegations made against the appellant, and specifically decline to do so, it is clear to me that the disclosure of this information would only serve to “re-victimize” the affected persons in the most harmful way imaginable. 

 

In my view, the extremely sensitive nature of the information contained in these records, and the circumstances surrounding their confidential submission to the VOAPI Office by the affected persons indicate that any interest which the appellant may have in their disclosure under section 21(2)(d) is strongly outweighed by the privacy protection considerations in sections 21(2)(f) and (h).

As a result, I find that the disclosure of the personal information contained in Records 16 to 19, 28, 29, 67, 74, 75, 90 and 91 would result in an unjustified invasion of the personal privacy of the affected persons. 

 

I further find that section 21(4) has no application in the circumstances of this appeal.  In addition, I cannot agree with the submissions of the appellant that there exists any compelling public interest in the disclosure of this information which would clearly outweigh the purpose of the section 49(b) exemption.  Any interest in disclosure which may exist is purely personal to the appellant.  Records 16 to 19, 28, 29, 67, 74, 75, 90 and 91 are, accordingly, exempt from disclosure under section 49(b).

 

 

 

 

Records which do not contain the personal information of the appellant

 

I have found above that Records 1 to 5, 9 to 15, 20 to 27, 30 to 33, 35 to 66, 68 to 73, 76 to 79, 81 to 89, 92 to 102 and 104 to 115 contain the personal information of individuals other than the appellant.  Most of these records pertain to matters relating to the processing of the applications of compensation received by the VOAPI Office from the affected persons and include their statements with respect to the abuse which they suffered and the consequences which their treatment at St. John’s Training School had on their later lives.  Each of these documents identifies the affected person and the fact that they made an application for compensation to the VOAPI Office.

 

The appellant’s arguments in favour of the disclosure of this information are identical to those made in relation to the records which I found to be exempt under section 49(b).

 

The Ministry submits that some of the records contain information which is subject to a presumption under sections 21(3)(a) (medical, psychiatric or psychological histories), 21(3)(b) (information compiled as part of an investigation into a possible violation of law) and 21(3)(d) (employment or educational history).  It again reiterates that all of the information in these records is also highly sensitive under section 21(2)(f) and was supplied to it in confidence within the meaning of section 21(2)(h).

 

I have reviewed the information contained in these documents and make the following findings:

 

1.         Records 30 to 32 contain information about the adult work history and the medical care provided to one of the affected persons while he was a ward at the St. John’s Training School.  As such, this information is properly characterized as the employment and medical history of one of the affected persons as contemplated by sections 21(3)(a) and (d).

 

2.         Records 68 to 72 consist of a statement given by one of the affected persons to a police agency in the course of its investigations into the allegations made by this individual against the appellant and other identifiable individuals.  As such, I find that it falls within the presumption in section 21(3)(b) as it was compiled by a law enforcement agency as part of an investigation into a possible violation of law.

 

3.         Records 78, 79, 82, 92, 95 to 98 and 114 also contain information relating to the medical and psychological history of one of the affected persons.  This information falls within the ambit of the presumption in section 21(3)(a).

 

4.         Section 21(4) has no application to this information and, for the reasons stated above, I find that there does not exist a sufficiently compelling public interest under section 23 in its disclosure which clearly outweighs the purpose of the section 21(1) exemption.

 

5.         Accordingly, the personal information of the affected persons which is contained in Records  30 to 32, 68 to 72, 78, 79, 82, 92, 95 to 98 and 114 is properly exempt from disclosure under section 21(1).

 

The remaining information contained in Records 1 to 5, 9 to 15, 20 to 27, 33, 35 to 66, 73, 76, 77, 81, 83 to 89, 93, 94, 99 to 102, 104 to 113 and 115 relates only to the affected persons and to identifiable individuals other than the appellant.  I found above that the factor favouring disclosure of the information relating to both the appellant and the affected persons in section 21(2)(d) was not sufficiently strong to outweigh the factors favouring the protection of the affected persons’ personal privacy in sections 21(2)(f) and (h).  With respect to the records which do not contain the appellant’s personal information, I find that their disclosure is even less relevant to a fair determination of the appellant’s rights under section 21(2)(d) and that the factors favouring privacy protection in sections 21(2)(f) and (h) are even more compelling.

 

Accordingly, I find that the disclosure of the information contained in Records 1 to 5, 9 to 15, 20 to 27, 33, 35 to 66, 73, 76, 77, 81, 83 to 89, 93, 94, 99 to 102, 104 to 113 and 115 would constitute an unjustified invasion of the personal privacy of the affected persons.  Again, section 21(4) has no application to this information and there does not exist a sufficiently compelling public interest in its disclosure.  Therefore, I find Records 1 to 5, 9 to 15, 20 to 27, 33, 35 to 66, 73, 76, 77, 81, 83 to 89, 93, 94, 99 to 102, 104 to 113 and 115 to be exempt under section 21(1).

 

LAW ENFORCEMENT

 

The Ministry has also claimed the application of sections 14(1)(a) and (b) of the Act to Records 6, 7, 8, 34, 80 and 103.  I found above that these records did not contain any personal information relating to any identifiable individuals.

 

The purpose of the exemptions in sections 14(1)(a) and (b) is to provide the Ministry with the discretion to preclude access to records in circumstances where the disclosure of information would interfere with an ongoing law enforcement matter or investigation. 

 

The appellant has provided me with evidence to establish that the investigation undertaken by the OPP has been closed and that no charges will be brought against the appellant in connection with these allegations.  I am satisfied, therefore, that there no longer remains an ongoing law enforcement matter or investigation into the subject matter of the records as a whole, at least as far as the appellant is concerned.  In addition, the Ministry points out that the VOAPI  Office was closed on March 31, 1998, ending its involvement in the compensation of the affected persons and others.

 

Records 6, 7, 8, 34, 80 and 103 are parts of the application form completed by the affected persons which relate certain “ground rules” in the evaluation of each application by the VOAPI Office.  While I am not convinced that they ever contained information whose disclosure could reasonably be expected to interfere with a law enforcement matter or investigation, since the investigation and the compensation scheme administered by the VOAPI Office are now completed, I find that there no longer exists a law enforcement matter or investigation for the purposes of sections 14(1)(a) or (b).  Accordingly, I find that these exemptions do not apply to Records 6, 7, 8, 34, 80 and 103.  As no other exemptions have been claimed for these records, and no mandatory exemptions apply to them, they should be disclosed to the appellant.

 

ORDER:

 

1.         I order the Ministry to disclose Records 6, 7, 8, 34, 80 and 103 to the appellant by providing him with a copy by September 4, 1998.

 

2.         I uphold the Ministry’s decision to deny access to the remaining records.

 

3.         In order to verify compliance with the terms of this order, I reserve the right to require the Ministry to provide me with a copy of the records which are disclosed to the appellant pursuant to Provision 1.

 

 

 

 

 

 

 

Original signed by:                                                                            August 14, 1998                      

Donald Hale

Adjudicator