1.         the records were collected, prepared, maintained or used by an institution or on its behalf;

2.         this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and

3.         these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the institution has an interest.

The appellant states that he is disadvantaged in responding to this issue without knowledge of the content of the documents, but is prepared to rely on the judgement of the Commissioner as to whether these documents are covered by section 65(6)3.

Findings

The first issue to consider is whether these records contain personal information, as the section 21(1) personal privacy exemption applies only to information which qualifies as “personal information” as defined in section 2(1) of the Act.  “Personal information" is defined, in part, to mean 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 [paragraph (h)].

Section 21(1) of the Act prohibits the disclosure of personal information to any person other than the individual to whom the information relates, except in certain circumstances listed under the section.  On my review, the only exception to the section 21(1) exemption which has potential application in the circumstances of this appeal is section 21(1)(f), which reads as follows:

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

if the disclosure does not constitute an unjustified invasion of personal privacy.

Because section 21(1)(f) is an exception to the mandatory exemption which prohibits the disclosure of personal information, in order for me to find that section 21(1)(f) applies, I must find that disclosure of the personal information would not constitute an unjustified invasion of the affected party’s personal privacy.

Sections 21(2) and (3) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of privacy.  Section 21(2) provides some criteria for institutions to consider in making this determination, and section 21(3) identifies the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy.  Finally, section 21(4) itemizes specific types of information whose disclosure is presumed not to constitute an unjustified invasion of personal privacy.  The Divisional Court has stated that once a presumption against disclosure under section 21(3) has been established, it cannot be rebutted by either one or a combination of the factors set out in 21(2) (John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767).

Section 21(4)

Despite subsection (3), a disclosure does not constitute an unjustified invasion of personal privacy if it,

            discloses the classification, salary range and benefits, or employment responsibilities of an individual who is or was an officer or employee of an institution or a member of the staff of a minister;

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

(d)       relates to employment or educational history;

(f)        describes an individual's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;

(g)        consists of personal recommendations or evaluations, character references or personnel evaluations;

I am not convinced that section 21(3)(g) has any application to the information in the records.  The terms "personal evaluations" or "personnel evaluations" are normally applied to assessments made according to “measurable standards.” [See Orders P-447 and PO-1756]

Section 21(2)

With respect to other information that is not captured by a presumption under section 21(3), the College has submitted that sections 21(2)(f) and (h) are relevant to a determination of whether disclosure of the information in the records would constitute an unjustified invasion of personal privacy.  The affected party relies on sections 21(2)(e), (f) and (g).  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,

(e)        the individual to whom the information relates will be exposed unfairly to pecuniary or other harm;

(f)        the personal information is highly sensitive;

(g)        the personal information is unlikely to be accurate or reliable;

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

The College submits that it is likely that the request has been made in order to publish the results to the college community at large.  It states that the basis for this conclusion is that disclosures made as a result of previous access requests by the requester have resulted in publication.  The College states that it suspects that the intent is to attempt to “embarrass” the affected party and cause undue stress. 

Further, the College submits that Records 1 and 2 contain confidentiality provisions, evidencing a reasonable expectation of privacy.

I have decided not to describe the affected party’s representations in detail because of the nature of some of the information provided in them.

The appellant submits, among other things, that the post held by the affected party at the College is “arguably the most influential of college administrators setting his or her vision for academic and access issues for the public of Ontario”.  This position “creates an entitlement for the public to know the employment status of the named individual”.  It is submitted that there is uncertainty about the employment status of the affected party, and release of the requested documents is necessary for the academic community to end this confusion.  The appellant also states that the public is entitled to review the stewardship of the college including all financial entitlements given the impact of financial cuts to post-secondary education in general and the specific deficit problems of the institution.  He submits that “severance arrangements to senior college officials should be open to public scrutiny”.

The appellant therefore relies on the factor in section 21(2)(a), submitting that disclosure is “desirable for the purpose of subjecting the activities of the Government of Ontario and its agencies to public scrutiny”.

The appellant disagrees that sections 21(2)(e) or (f) have any relevance, stating that any suggestion of pecuniary or other harm is highly speculative and, further, that information about the affected party has been previously released to the appellant in a prior request under the Act.

On my review, I am not convinced that the affected party has provided evidence that disclosure of the information will result in pecuniary or other harm to him within the meaning of section 21(2)(e).  I agree with the appellant that the likelihood of such harm ensuing is speculative.  I am also not convinced that section 21(2)(g) has any relevance.  The objection of the affected party is that the records only represent part of a complete picture, but there is no reason to conclude that the information in the records is neither accurate nor reliable.

I agree with the appellant that the factor in section 21(2)(a) has some relevance to the circumstances of this appeal.  Other orders have accepted that the contents of similar agreements entered into between institutions and high-ranking employees represent the sort of records for which a high degree of public scrutiny is warranted:  see, for instance, Orders PO-1885, MO-1405 and MO-1184.  I am not convinced, however, that s.21(2)(a) is as significant as it was in Order PO-1885 which involved, as I stated there, “a significant amount of public funds, and the highest ranking employee in one of the most important cultural institutions in the country.”

The interest in public access to this type of information must be weighed against the privacy interests of affected individuals.  In the circumstances before me I accept that the personal information is highly sensitive.  Other orders, such as Order MO-1184, have found that the details of records similar to the ones before me are highly sensitive, and the evidence provided by both the appellant and the affected party support a conclusion that disclosure of the information in the records would likely cause significant personal stress to the affected party.

In considering whether disclosure of the records would result in an unjustified invasion of personal privacy, I am drawn to the conclusion that the factors favouring access are essentially equal in weight to those arguing against disclosure.  I conclude that it has not been established that the disclosure of the remaining information would not constitute an unjustified invasion of the personal privacy of the affected party.

My finding above relates to Records 1 and 2.  Record 3 is different, in that it is an intranet message sent by the President of the College throughout the College.  Information before me suggests that a large number of College employees received this message.  Further, the contents have been published in the College’s employee newsletter.  The information in the message does not (with one exception) fall within the presumptions in section 21(3), nor do the factors in section 21(2) weighing against disclosure apply.  One portion falls within the presumption in section 21(3)(d) as it relates to the employment history of the affected party.  With respect to the balance of the information in Record 3, the fact that the information has already been disseminated throughout the College community in its employee newsletter suggests that its disclosure here would not constitute an unjustified invasion of personal privacy.  I accordingly find that the disclosure of Record 3 (with the exception of one portion subject to a presumption) would not result in an unjustified invasion of personal privacy.

By way of summary, I have found that Records 4 and 5 are excluded from the scope of the Act under section 65(6)3.  I have also found that section 21(1) exempts Records 1 and 2 from disclosure.  Finally, Record 3 is not exempt from disclosure, with the exception of one portion.

ORDER:

1.                  I order the disclosure of Record 3 with the exception of one portion, which I have highlighted on the copy sent to the College with my order.

2.                  I order disclosure to be made by sending the appellant a copy of Record 3, as severed, by no later than October 7, 2003 but not before September 30, 2003.

3.                  In order to verify compliance with the terms of Provision 1, I reserve the right to require the College to provide me with a copy of the material which it discloses to the appellant.

                                                                                      September 9, 2003                                                               

Sherry Liang