Access to Information Orders
Decision Information
The appellant submitted a request to the Ministry of Finance (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ) for access to all documents pertaining to his provincial tax file. The Ministry issued a decision dated July 9, 2001, granting partial access to some of the records requested. Access to the remaining records was denied pursuant to sections 17(1) (third party information), 17(2) (tax information) and 21(1) (invasion of privacy) of the Act . The appellant appealed the Ministry's decision to deny access and also raised the issue of the existence of additional records. During mediation, the appellant advised the mediator that he believes additional records should exist; in particular, he maintained that there should be at least 65 additional bills of sale and/or ownerships included in his tax audit file. The appellant then sent a clarification letter to the Ministry outlining the specific documents that he was looking for. The Freedom of Information and Privacy Co-ordinator (the Co-ordinator) subsequently advised the appellant that additional records do not exist, and that all responsive records had been previously identified. He also advised the appellant that the Retail Sales Tax Branch had conducted a thorough search of not only audit files, but all branch records, and that nothing additional was located. The appellant maintains that additional records should exist, and therefore, the reasonableness of the Ministry's search remains at issue in this appeal.
Decision Content
NATURE OF THE APPEAL:
The appellant submitted a request to the Ministry of Finance (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act) for access to all documents pertaining to his provincial tax file.
The Ministry issued a decision dated July 9, 2001, granting partial access to some of the records requested. Access to the remaining records was denied pursuant to sections 17(1) (third party information), 17(2) (tax information) and 21(1) (invasion of privacy) of the Act.
The appellant appealed the Ministry’s decision to deny access and also raised the issue of the existence of additional records.
During mediation, the appellant advised the mediator that he believes additional records should exist; in particular, he maintained that there should be at least 65 additional bills of sale and/or ownerships included in his tax audit file. The appellant then sent a clarification letter to the Ministry outlining the specific documents that he was looking for. The Freedom of Information and Privacy Co-ordinator (the Co-ordinator) subsequently advised the appellant that additional records do not exist, and that all responsive records had been previously identified. He also advised the appellant that the Retail Sales Tax Branch had conducted a thorough search of not only audit files, but all branch records, and that nothing additional was located. The appellant maintains that additional records should exist, and therefore, the reasonableness of the Ministry’s search remains at issue in this appeal.
Also during mediation, the Ministry advised the mediator that it is willing to provide the appellant with a copy of the bill of sale (indexed as Record A32), since this record had originally been supplied to it by the appellant. The Ministry confirmed that it would send a copy of Record A32 to the appellant. Since the appellant has not contacted this office to indicate that he has not received this record, it is no longer at issue in this appeal.
In addition, the Ministry withdrew its reliance on section 17(1) of the Act. This exemption was originally claimed for Records A29–A30 and A31 (from the Retail Sales Tax file (the RST file)) and two unnumbered records that had been located in the Tax Appeals Branch file (the TAB file). Section 17(1) is a mandatory exemption and accordingly, I have reviewed these records to determine whether any third party interests are apparent on their face. Based on my review, I accept the Ministry’s decision to withdraw the application of this exemption. Accordingly, section 17(1) is not at issue in this appeal.
Finally, on January 23, 2002, the Ministry advised the mediator that it also relies on sections 14(1)(a), (b), (c) and (d) (law enforcement) of the Act with respect to a letter dated June 26, 1995. Since this new exemption claim was raised outside of the 35 day time limit set out in the Confirmation of Appeal, the late raising of additional discretionary exemptions was also identified as an issue in dispute.
Further mediation could not be effected and this appeal was forwarded to adjudication. I decided to seek representations from the Ministry, initially. In reviewing the records at issue, it was not entirely clear whether they contain the appellant’s personal information. Accordingly, I decided to raise the possible application of the discretionary exemptions under sections 49(a) (discretion to refuse requester’s own information) and (b) (invasion of privacy) as issues in this appeal.
The Ministry provided representations in response. In its representations, the Ministry indicates that it withdraws its reliance on the discretionary exemptions in sections 14(1)(a), (b), (c) and (d). Accordingly, these exemptions are no longer at issue, nor is the issue pertaining to the late raising of a new discretionary exemption. I revised the Notice of Inquiry to reflect these changes, and sent it, along with a complete copy of the Ministry’s representations to the appellant. The appellant submitted representations in response.
Before addressing the issues on appeal, I note that the appellant appears to have some concerns about the fairness of the Inquiry process, stating: “It is very difficult for me to determine what you have asked the [Ministry] when I am not given a copy of your request … when there is no copy of the requested documents sent to me then I don’t find the appeal process to have a system that is fair just or open in its effort”.
As I indicated above, the appellant was provided with a copy of the Notice of Inquiry, revised from the original sent to the Ministry to reflect the removal of matters that were no longer at issue, thus not requiring representations from him. All of the issues addressed in this order were outlined in the Notice of Inquiry sent to him, including any questions I asked of the Ministry.
In response to the appellant’s second concern, I would point out that disclosure of the records at issue to him is the very issue being adjudicated. Disclosure of the records to the appellant to enable him to make representations on them would ultimately render the issues on appeal moot. The appellant was provided with the complete representations of the Ministry and given an opportunity to address them. In my view, the appellant’s concerns about lack of fairness or openness in the Inquiry process are without merit.
RECORDS:
There are nine records at issue consisting of a letter dated June 26, 1995 with attachments (5 pages, not numbered) and a sales listing report (10 pages, not numbered), both from the TAB file, and Ministry of Transportation (MTO) computer printouts (pages A33, A34, A46 to A155) and audit file correspondence (pages A29 to A31 and A156 to A185) which are all located in the RST file. For ease of reference, I have assigned record numbers to each page or group of pages as follows:
• Record 1 – the first five pages consisting of the June 26, 1995 letter and attachments;
• Record 2 – the 10 page sales listing report;
• Record 3 – page A29;
• Record 4 – page A30;
• Record 5 – page A31;
• Record 6 – pages A33-A34;
• Record 7 – pages A46-A155 (with the exception of page A145);
• Record 8 – page A145; and
• Record 9 – pages A156-A185 and mis-numbered page A31.
DISCUSSION:
REASONABLENESS OF SEARCH
Where a requester provides sufficient detail about the records that he is seeking and the Ministry indicates that further records do not exist, it is my responsibility to ensure that the Ministry has made a reasonable search to identify any records that are responsive to the request. The Act does not require the Ministry to prove with absolute certainty that further records do not exist. However, in my view, in order to properly discharge its obligations under the Act, the Ministry must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive to the request (Orders M-282, P-458 and P-535). A reasonable search would be one in which an experienced employee expending reasonable effort conducts a search to identify any records that are reasonably related to the request (Order M-909).
Although an appellant will rarely be in a position to indicate precisely which records have not been identified in an institution’s response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records may, in fact, exist.
In his letter of appeal, the appellant notes that the records provided to him do not contain any of the Bills of Sale or transfer of ownership documents for the vehicles that he has been “charged as purchasing and selling and not paying retail sales tax on”. He indicates that these transactions were claimed and outlined in the audit report relating to an audit of his business conducted by the Retail Sales Tax Office.
In responding to the search issue, the Ministry indicated that searches were conducted in a number of branches for records responsive to this request. In particular, the Ministry states that the RST Branch searched all of its files, including audit files, and located a number of records, some of which were provided to the appellant, the rest of which were withheld pursuant to the exemptions claimed under the Act. The Ministry adds that the Collections and Compliance Branch searched its Integrated Collection System and, in doing so, co-ordinated its search with the RST Branch. The Ministry states that no further records were located as a result of these searches.
The Ministry states further that its Legal Services Branch (the LSB) also conducted a search to determine whether there was an Ombudsman file on this subject or a tax appeal file relating to the appellant. The LSB confirmed that it was unable to locate and thus did not have any responsive records.
Finally, the Ministry indicates that the TAB searched its Tax Appeals Branch Objection and Appeal files and database as well as its Objection and Appeal Tracking System for both electronic and/or hard copy files.
The Ministry notes that, apart from certain severances relating to another taxpayer’s personal information and certain RST Branch audit working paper files, all records located in the RST Branch were provided to the appellant.
The Ministry also states that in September 2001, the appellant reformulated his request, and a second search was conducted in the above locations. The Ministry asserts that all responsive records have been located and have either been provided to the appellant or are subject to exemption and thus at issue in this appeal.
In his representations, the appellant states:
[W]hen there is a claim then records must be available to back up the claim anything less than providing those details would fail in rightfully making those charges. I, again have sought this information for almost 10 years now and still they claim records do not exist. Sending me cut and paste copies of the act or the regulations and advising the act is there to address concerns of confidentiality does not serve the interest of the appellant.
The appellant then attached a list of the specific documents/types of documents he is seeking.
In my view, if the records the appellant was seeking did not exist 10 years ago, it is unlikely, barring exceptional circumstances, that they would exist today. Essentially, the appellant believes that because the Ministry claims that he owes taxes on a number of vehicles, the specific documents that he is seeking should exist. Taken by itself, the appellant’s belief does not provide a sufficient evidentiary basis to conclude that these records must exist. I also note that the records at issue, which comprise approximately 160 pages, may contain some of the types of information that would answer the questions he is asking.
Based on the Ministry’s representations, I am satisfied that thorough searches were conducted in locations that could reasonably be expected to produce records responsive to the appellant’s request. In the absence of evidence from the appellant that would lead me to conclude that records are likely to exist in these or any other locations within the Ministry, I find that the Ministry’s search for responsive records was reasonable.
PERSONAL INFORMATION
Personal information is defined, 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 disclosure of the name would reveal other personal information about the individual [paragraph (h)].
The Ministry appears to take the position that, except where the information relates directly to the appellant, the remaining information in the records does not qualify as his personal information. With respect to the identification of other individuals in the records, the Ministry notes that some of the records contain the personal information: 1) of purchasers of vehicles (pages A29, A30 and A31 (plus mis-numbered pages A31) and A156-A185); 2) of other registered owners of vehicles (on MTO printouts) with the same last name as the appellant (pages A33 and A34); as well as 3) successive owners of registered vehicles contained in printouts from the MTO database.
All of the records pertain to the RST file concerning the liability for retail sales tax on specific vehicle transactions conducted by the appellant’s business (as vendor). It has been established in a number of previous orders that information provided by, or relating to, an individual in a professional capacity or in the execution of employment responsibilities is not "personal information" (Orders P-257, P-427, P-1412, P-1621, M-262).
Previous orders have also recognized that even though information may pertain to an individual in that person’s professional capacity, where that information relates to an investigation into or assessment of the performance or improper conduct of an individual, the characterization of the information changes and becomes personal information (Orders 165, P-447, M-122, P-1124, P-1344 and MO-1285). In these cases, the records must be viewed contextually (see, for example: Orders MO-1524-I and PO-1983).
In my view, there is a sufficient nexus between the assessment/audit of the appellant’s business, its tax liability and the appellant, personally, to render the information in the records at issue “about” the appellant. Accordingly, I find that all of the records contain the appellant’s personal information.
The circumstances of this appeal are somewhat unique in that, as part of the appellant’s objections to his company’s assessment, he has implicated another individual (the affected person). In reviewing the records at issue, I find that some of them pertain to, or are sufficiently connected to the affected person in such a way that any information about the appellant is intertwined with that of the affected person. I find, therefore, that these records contain the personal information of both parties (Records 1 and 2).
Records 3, 4 and 5 comprise letters from purchasers to the TAB with regard to their purchase of one of the vehicles subject to the tax dispute. I find that these records also contain the personal information of the purchasers.
Record 6 comprises a MTO computer printout showing the results of an “enquiry by name”. This record not only contains information about the appellant, but also of any other person on the database with the same last name. I find that this record contains the personal information of these other identifiable individuals.
Record 7 also consists of MTO computer printouts showing the results of an “enquiry history”. As the Ministry notes in its representations, this record contains information about the successive owners of registered vehicles. It contains the name of each owner and information about the vehicle each one purchased. I find that this record contains recorded information about identifiable individuals, including the affected person.
Record 8 is a one page printout which refers to certain taxable transfers made by the appellant’s company. This record does not contain any information about other individuals. Accordingly, I find that it contains only the personal information of the appellant.
Record 9 constitutes identical copies of a Ministry form letter relating to the audit of the appellant’s company. Each letter is addressed to an identified purchaser. I find that only the name, address and reference to the vehicle purchase number on these letters qualifies as the personal information of the individuals identified. Once this information is removed, the remaining portions of the record do not constitute the personal information of an identifiable individual other than the appellant.
INVASION OF PRIVACY
I found above that all of the records contain the appellant’s personal information. I found further that, except for Record 8, all of the records contain the personal information of individuals other than the appellant. However, I also found that Record 9 could be severed to remove the personal information from the remaining portions of this record. Neither section 21(1) nor section 49(b) is applicable to records (or parts of records) that contain only the personal information of the appellant. Accordingly, I will consider the application of this exemption claim to Records 1, 2, 3, 4, 5, 6, 7 and the portion of Record 9 that contains the personal information of other individuals as determined above.
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 institution determines that the disclosure of the information would constitute an unjustified invasion of another individual’s personal privacy, the institution has the discretion to deny the requester access to that information.
Sections 21(2) and (3) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of the personal privacy of the individual to whom the information relates. Section 21(2) provides some criteria for the institution to consider in making this determination. Section 21(3) lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy. Section 21(4) refers to certain types of information the disclosure of which does not constitute an unjustified invasion of personal privacy.
In John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767, the Divisional Court found that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of factors set out in section 21(2).
A section 21(3) presumption can be overcome if the personal information at issue falls under section 21(4) of the Act or if a finding is made under section 23 of the Act that a compelling public interest exists in the disclosure of the record in which the personal information is contained which clearly outweighs the purpose of the section 21 exemption [Order PO-1764].
The Ministry takes the position that disclosure of the personal information of individuals other than the appellant would constitute a presumed unjustified invasion of privacy pursuant to section 21(3)(f) of the Act. Other evidence in the Ministry’s representations and the records themselves raise the possible relevance of the factors in sections 21(2)(f) and (h). These sections provide:
(2) 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;
(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,
(f) describes an individual's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;
The Ministry submits that Records 3, 4, 5, 6, 7 and 9 describe the assets of the individuals referred to therein, such as the type of vehicle purchased and, in some cases, the amount paid for it.
I do not agree with the Ministry’s characterization of the term “asset” in section 21(3)(f) as including the type of vehicle purchased. In my view, this term must be read in the context of the overall intent of the section, which refers to information of a “financial” nature. This office has defined the term “financial information” in other sections of the Act (sections 17(1) and 18(1)) as information relating to money and its use or distribution which must contain or refer to specific data. Examples of financial information include cost accounting method, pricing practices, profit and loss data, overhead and operating costs (See: Orders P-47, P-87, P-113, P-228, P-295 and P-394, for example).
The application of this definition in interpreting section 21(3)(f) is supported by the other terms used in the section, such as “finances”, “income”, “net worth”, “bank balances” and so on, all of which would in normal usage refer to money and its use and distribution. In my view, there must be some connection to the “value” of the asset in financial terms in order for the presumption to apply to it.
In Order P-1502, Commissioner Ann Cavoukian considered whether the number of initial claims and renewal claims of each physician who prescribed the home oxygen program for patients fell within the presumption in section 21(3)(f). After considering the parties submissions, she concluded:
The Ministry submits that disclosure of the number of home oxygen claims and renewal claims approved for a physician is tantamount to the disclosure of information describing the finances and financial activities of the physicians.
In his representations, the appellant submits that no information is provided regarding such matters as a physician’s income nor the amount billed by the physician with respect to the patient’s visit.
In reviewing the record, I find that the presumed unjustified invasion of personal privacy in section 21(3)(f) applies to the personal information contained therein. As I stated above, while there is no direct indication of billing information, it is possible to determine with a reasonable degree of accuracy the billing history of a physician from the information contained in the record. Payment to a physician for services rendered is properly characterized as a “financial transaction.” In my view, a financial transaction is a sub-component of “financial activity.” As the record presents a listing of these transactions for a period of one year, I find that it describes the financial activities in which the physicians were involved.
In the current appeal, I am not persuaded that the amount paid for these vehicles could be determined with sufficient accuracy such that disclosure of the type of vehicle purchased would describe the value of the asset.
I agree with the Ministry, however, that the amount paid for a vehicle would constitute financial information as contemplated by this section. Accordingly, disclosure of some of the information in the records would constitute a presumed unjustified invasion of personal privacy pursuant to section 21(3)(f) of the Act.
Elsewhere in its representations, the Ministry notes that the information in Records 1, 2, 3, 4, 5 and 7 was gathered by it for the purpose of determining retail sales tax liability. It is apparent that the Ministry was seeking this information in connection with its audit/assessment of the appellant’s company. In my view, it would be reasonable for individuals contacted or implicated in this regard to consider their identities and the information they provide to the Ministry to be confidential. I, therefore, find that the factor favouring privacy protection in section 21(2)(h) is relevant to the personal information in these records as well as the personal information found on Record 9.
In addition, in the circumstances, I find that disclosure of the personal information in all of the records (especially Records 1 and 2) could reasonably be expected to cause “excessive personal distress” (see: Order MO-1340) to those individuals identified in them since it would leave them open to being contacted by the appellant in connection with his dispute; a consequence unlikely to be expected or welcome. Accordingly, I find the factor in section 21(2)(f) to be relevant to the personal information in the records.
The appellant does not raise any specific factors in favour of disclosure. However, it is apparent that he disputes the assessment and is seeking to determine the basis for it. Section 21(2)(d) of the Act provides:
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,
the personal information is relevant to a fair determination of rights affecting the person who made the request;
Assistant Commissioner Tom Mitchinson stated the test for the application of section 21(2)(d) in Order P-312 [upheld on judicial review in Ontario (Minister of Government Services) v. Ontario (Information and Privacy Commissioner) (February 11, 1994), Toronto Doc. 839329 (Ont. Div. Ct.)]: