During mediation, the Board withdrew its reliance on section 12 of the Act.  Further, in its representations, the Board indicated that it no longer relies on section 7 with respect to most records.  Because of my findings under sections 14/38(b) below, it is unnecessary to consider the application of section 7 in any event.

DISCUSSION:

LAW ENFORCEMENT

In its decision, the Board relied on section 8 to deny access to records or portions of records.  In its representations, it clarifies the parts of section 8 at issue, which are as follows:

(1)        A head may refuse to disclose a record if the disclosure could reasonably be expected to,

(a)        interfere with a law enforcement matter;

(b)        interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;

(d)       disclose the identity of a confidential source of information in respect of a law enforcement matter, or disclose information furnished only by the confidential source;

(e)        endanger the life or physical safety of a law enforcement officer or any other person;

(2)        A head may refuse to disclose a record,

(a)        that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;

(b)        that is a law enforcement record if the disclosure would constitute an offence under an Act of Parliament;

(c)        that is a law enforcement record if the disclosure could reasonably be expected to expose the author of the record or any person who has been quoted or paraphrased in the record to civil liability; or

In order for a record to qualify for exemption under these sections, the matter to which the record relates must first satisfy the definition of the term “law enforcement” found in section 2(1) of the Act.  This definition states:

“law enforcement” means,

(a)        policing,

(b)        investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and

(c)                the conduct of proceedings referred to in clause (b)

Further, an institution must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”.  Evidence amounting to speculation of possible harm is not sufficient [Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Goodis (May 21, 2003), Toronto Doc. 570/02 (Ont. Div. Ct.), Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].

The investigation or inspection was not conducted with a view to providing a court or tribunal with the facts by which it would make a determination of a party's rights, but rather, was conducted with a view to providing the employer with information respecting its employee. In this latter instance, the employer can go on to impose an employment penalty without recourse to a court or tribunal.

In conclusion, I find that section 8 does not exempt the records from disclosure.  I will therefore turn to consider whether the records are exempt under the other sections at issue.

PERSONAL INFORMATION

In this next section I will discuss, firstly, whether the records contain personal information, and if so, to whom that personal information relates, for the answer to these questions determines which parts of the Act may apply.

The application of the section 14 personal privacy exemption, as well as the application of the section 38(a) and (b) exemptions (relied on in conjunction with sections 7 and 13 in this appeal), depends on a finding that the records contain “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, and 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)].

Previous decisions of this Office have held that information about an individual in his or her professional or employment capacity does not constitute that individual’s personal information where the information relates to the individual’s employment responsibilities or position (see Reconsideration Order R-980015 and Order PO-1663).  However, where information about the individual involves an evaluation of his or her performance as an employee or an investigation into his or her conduct as an employee, then these references are considered to be the individual’s personal information (see Orders P-721, P-939, P-1318 and PO-1772). 

In Order PO-2225, Assistant Commissioner Tom Mitchinson reviewed the distinction between information about an individual in a personal capacity, and information associated with an individual in a professional or business capacity.  After summarizing a number of orders in this area, Assistant Commissioner stated the following:

Based on the principles expressed in these orders, the first question to ask in a case such as this is: “in what context do the names of the individuals appear”?  Is it a context that is inherently personal, or is it one such as a business, professional or official government context that is removed from the personal sphere?   

After considering the first question, the Assistant Commissioner then stated:

The analysis does not end here.  I must go on to ask: “is there something about the particular information at issue that, if disclosed, would reveal something of a personal nature about the individual”?  Even if the information appears in a business context, would its disclosure reveal something that is inherently personal in nature?  

Turning to the facts of this appeal, it is not in dispute that the records contain the personal information of the appellant’s son and, to a lesser degree, of the appellant.  The records also contain the personal information of other students.  On this issue, the appellant submits that the records containing statements made by other students about her son are the personal information of her son, but not of the other students.  She refers to section 2(1) which defines “personal information” to include “the personal opinions or views of the individual except if they relate to another individual” [subsection (e); emphasis added].  She also refers to subsection (g) of section 2(1) which provides that “personal information” includes “the views or opinions of another individual about the individual”.

The appellant states that she is not interested in access to information such as the names, addresses or telephone numbers of the other students.  She is content to have that information severed from the records.

On my review of the records, I find that the statements given by other students about the appellant’s son contain personal information about the son as well as about these and other students.  The statements contain more than just personal opinions or views of the individuals about the son; they also contain information about the students providing the statements, such as their actions and states of mind, and about other students.  The information about the appellant’s son and about other students is intertwined in the statements.  Further, although the appellant has suggested that the identity of the students can be concealed through the severances of any names, addresses or telephone numbers, I am not satisfied that this is the case.  I find that, even with such severances, the students could reasonably be identified from the information contained in the statements.

Many of the records also contain information about Board personnel, such as teachers and other staff at the secondary school.  With the exception of the principal and vice-principal, whom I will discuss separately below, I am satisfied that the information about these individuals is not their personal information.  Applying the principles referred to above, the information was gathered or provided in their professional capacities and is not about them in a personal sense. 

In relation to the principal and vice-principal, their information also arises out of their professional positions with the Board.  In answer to the first question posed in Order PO-2225, above, it is not a context that is inherently personal.  However, the second question requires some further discussion.  Following on the suspension of the appellant’s son, the appellant and her son initiated a civil suit against these individuals and against the Board, alleging breaches of rights under the Canadian Charter of Rights and Freedoms  and various legal duties.  Further, as indicated above, the appellant has filed a complaint against the principal to the College.  The issue raised by these events is whether, given the allegations of wrongdoing, information about the actions and thoughts of the principal and vice-principal during the investigation of the appellant’s son reveals something of a personal nature about them. 

As indicated above, information involving an evaluation of an individual employee’s performance or an investigation into his or her conduct as an employee is considered to be the individual’s personal information.  In other decisions of this office, information originally created as part of an individual’s professional duties have been treated as the personal information of that individual, where professional wrongdoing is alleged.  In Order PO-1912, for example, the Assistant Commissioner considered whether information in Use of Force Reports, completed by police officers in relation to an incident in which an individual was pursued and apprehended, was the personal information of the officers.  In a context where the incident led to allegations of excessive use of force by the police officers, an investigation of their conduct, and a civil suit, the Assistant Commissioner concluded that the notes and Use of Force reports originally created as part of the officers’ professional duties were now properly considered their personal information. 

Applying these principles to the appeal before me, I find that information about the principal and vice-principal revealing their thoughts and actions during these events, as contained in the severed portions of Records 13, 15 and 16 and in Records 25, 31 and 37 to 40, is properly considered their personal information, given the allegations of misconduct against them.  Although the principal also authored Record 14, I do not find that it contains her personal information in that it consists of her notes of a meeting conducted by police officers. 

In sum, and applying the above to the records in the appeal, I find that Records 1, 2, 14, 20 and 21 contain the personal information of the appellant and/or her son only, and of no other individual.  I find that Records 4 to 8, 10 to 12, 22, 23 and 29 contain the personal information of the appellant and/or her son, and other students.  Records 37 to 40 contain the personal information of the appellant and/or her son, of other students, and of the vice-principal or principal.  Records 13, 15, 16, 25 and 31 contain the personal information of the appellant and/or her son, and of the principal.

Because Records 1, 2, 14 and the severed portions of 20 and 21 do not contain the personal information of individuals other than the appellant or her son, they do not qualify for exemption under sections 14/38(b).  Above, I have found section 8 inapplicable.  No other exemption has been claimed for Records 1, 2, 20 and 21, and I will accordingly order their disclosure.  The Board relies on section 13 to deny access to Record 14, and I will consider this exemption below.

With respect to Records 22, 23 and 29, the only severances consist of the names of Board personnel and students.  The names of Board personnel are not, in keeping with the above discussion, their personal information and this information does not therefore qualify for exemption under sections 14/38(b).  As I have found section 8 inapplicable and no other exemptions have been claimed for these records, I will order this information disclosed.  The appellant has indicated that she does not seek the names of the students and it is therefore unnecessary to consider these records further.

Although I have found that Records 4, 10 and 12 contain the personal information of the appellant and/or her son and others, each of these contains a portion that is about the appellant’s son only and not others.  As such, these portions do not qualify for exemption under the personal privacy exemption, although I will discuss them in relation to section 13 below. 

UNJUSTIFIED INVASION OF PERSONAL PRIVACY

Records 4 to 8, 10 to 12, 13, 15, 16, 25, 31, 37, 38, 39 and 40 contain personal information of the appellant and/or her son, and of other individuals.  Section 36(1) of the Act gives individuals a general right of access to their own personal information held by an institution.  Section 38(b) provides an exception to the general right to have access to one’s own personal information.  Under section 38(b) of the Act, where a record contains the personal information of both the requester and other individuals and an 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.

Section 38(b) of the Act introduces a balancing principle.  The institution must look at the information and weigh the requester's right of access to his or her own personal information against another individual's right to the protection of their privacy.  If the institution determines that release of the information would constitute an unjustified invasion of the other individual's personal privacy, then section 38(b) gives the institution the discretion to deny access to the personal information of the requester.

Sections 14(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 14(2) provides some criteria for the head to consider in making this determination.  Section 14(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy.  Section 14(4) refers to certain types of information whose disclosure does not constitute an unjustified invasion of personal privacy.

The Divisional Court has stated that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in 14(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].

Representations

The Board submits that while it recognizes that there cannot be a complete guarantee of confidentiality for information provided during harassment investigations, there should be a strong inference in favour of maintaining confidentiality of personal information of third parties who are minors (in this case, the students).  It is in the public interest that such investigations be encouraged and that minors have some assurance of confidentiality, especially during the investigative stage, save and except any disclosure which might be ordered in the context of a proceeding before an administrative tribunal or a Court having regard to the principles of natural justice.

The Board relies on the factors in sections 14(2)(e), (f) and (h), which provide:

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;

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

The Board submits that the information is highly sensitive and disclosure would reasonably be expected to cause excessive personal distress to minors who came forward with concerns about the conduct of the appellant’s son.  It is imperative that students freely express good faith views in confidence during an investigation without fear of reprisal.  It is submitted that this office has denied access to information which could identify witnesses in harassment investigations.  Balancing the interests of the appellant’s son and the witnesses, disclosure of records which might reasonably disclose the identity of the witnesses would constitute an unjustified invasion of their personal privacy.

With respect to section 14(2)(h), the Board further submits that in ensuring the safety of its student and investigating concerns, its supervisory officers, principals and teachers have statutory obligations vis-à-vis protecting the confidentiality of student information.  The Board refers to provisions in the Ontario College of Teachers Act, 1996 and the Education Act which protect the confidentiality of student information.

With respect to section 14(2)(e), the Board relies on the civil action brought by the appellant and her son, but provides no elaboration.

The appellant disagrees that the records contain the personal information of any individual but her son, given her agreement to have the names of students concealed.  On this basis, the appellant disputes that sections 14(2)(e), (f) and (h) have any bearing on the appeal. 

The appellant also refers to the provisions of the Education Act, and submits that the Board has violated that Act in gathering and maintaining the information about her son.  If the records are part of her son’s “pupil records” under the Education Act, it is submitted that she ought to have immediate, unqualified access to them.  If they are not, then the personal information in them was collected outside the authority of the Education Act.  The appellant contends that the Board is “trying to keep these records as a secret file” on her son.

In submitting that the release of the records would not constitute an unjustified invasion of personal privacy, the appellant refers to the following factors in section 14(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,

(a)                the disclosure is desirable for the purpose of subjecting the activities of the institution to public scrutiny;

(d)       the personal information is relevant to a fair determination of rights affecting the person who made the request;

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

(i)         the disclosure may unfairly damage the reputation of any person referred to in the record.

In order to establish the relevance of section 14(2)(a), the appellant must provide evidence demonstrating that the activities of the Police have been publicly called into question, necessitating disclosure of the personal information of the affected person and the witnesses in order to subject the activities of the Police to public scrutiny (Order P-273). In my view, the appellant's personal concerns about the actions of one police officer are not sufficient to establish the relevance of section 14(2)(a), and I find that this section is not relevant in the circumstances of this appeal.

The records under consideration all contain the personal information of the appellant and/or her son.  As I indicated above, section 38(b) of the Act gives a discretion to institutions to deny access to a requester’s personal information, where disclosure of the information would constitute an unjustified invasion of another individual's personal privacy.  This discretion may also be exercised in favour of disclosure.  In this appeal, it is open to me to consider whether the Board either failed to exercise its discretion, or erred in the exercise of its discretion. 

The appellant submits that the Board has not told how its discretion was exercised or what factors were considered.  Further, it is submitted that the information was collected in bad faith and has been used and continues to be used in bad faith.

I do not agree with the appellant.  On my review of the Board’s representations, I am satisfied that it did exercise its discretion, and that some of the factors it took into account in deciding against the release of the information were:

• the impact of disclosure on the complaint before the College
• the impact of disclosure on the willingness of students to provide information to school officials
• the higher degree of sensitivity to be given to information provided by minors
• the nature of the incidents and the sensitive nature of the information provided
• the availability of other mechanisms for disclosure

In THREAT TO SAFETY OR HEALTH

Section 13 states:

A head may refuse to disclose a record where the disclosure could reasonably be expected to seriously threaten the safety or health of an individual.

For this exemption to apply, the institution must demonstrate that disclosure of the record “could reasonably be expected to” lead to the specified result.  To meet this test, the institution must provide evidence to establish a reasonable basis for believing that endangerment will result from disclosure.  In other words, the institution must demonstrate that the reasons for resisting disclosure are not frivolous or exaggerated [Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor) (1999), 46 O.R. (3d) 395 (C.A.)].

ORDER:

1. I order the Board to disclose Records 1, 2, 14, the severed portions of 20 and 21, and certain portions of Records 4, 10, 12, 22, 23 and 29.  For greater certainty, I have sent to the Board with this order a copy of Records 4, 10, 12, 20, 21, 22, 23 and 29, indicating in highlighting the portions to be disclosed.

2. I order disclosure to be made by sending the appellant a copy of the records, severed according to my directions, no later than March 11, 2004.

3. In order to verify compliance with the provisions of this order, I reserve the right to require the Board to provide me with a copy of the information disclosed to the appellant pursuant to this order

Original signed by:                                                                        February 12, 2004                       

Sherry Liang