DISCUSSION:

PERSONAL INFORMATION

General principles

In order for a record to qualify for exemption under section 21(1), as claimed by the Ministry for all records at issue in this appeal, the record must contain “personal information”, as defined in section 2(1) of the Act.  Under this definition, “personal information” means “recorded information about an identifiable individual”, including any number, symbol or other particular assigned to the individual (paragraph (c)), the address or telephone number of the individual (paragraph (d)), the views and opinions of another individual about the individual (paragraph (g)), or 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)).

To qualify as personal information, the information must be about the individual in a personal capacity. 

Representations

The Ministry takes the position that all of the records contain “personal information” relating to the former owner of the property in question:

The Ministry submits that the records disclose the concerns the affected person had about his property, his state of knowledge about his property and his interactions with the Ministry concerning his property.  In deciding to deny access to the records responsive to items 1, 2, and 5, the Ministry was mindful that one of the central purposes of the Act is to protect personal privacy, and that section 21 is a mandatory exemption.  While there is an argument to be made that the information concerns property as opposed to individuals, the Ministry determined that the prudent course was to treat the information as personal information.

The Ministry goes on to identify a number of previous orders that dealt with the involved properties where it was determined that records contained “personal information” (Orders PO-2048, PO-1699, M-197 and MO-1230); and attempts to distinguish other orders which rejected “personal information” claims on the basis that the information related to properties and not to individuals in a personal capacity (Orders PO-1847 and PO-2295). 

The Ministry sums up it position on the “personal information” issue as follows:

Mindful of these Orders, the broad definition of “personal information” in the Act, the mandatory nature of the exemption and the importance of privacy protection under the Act, the Ministry took the position that, to the extent that the records at issue in this appeal reflected the affected person’s concerns over the state of his property and his interaction with the Ministry regarding his property, the information contained in these records is personal in nature.

The appellant’s representations do not deal with any of the components of the definition of “personal information” in section 2(1).

Analysis and Findings

Having carefully considered the Ministry’s representations and the various orders identified in support of its position, I have reached the conclusion that none of the records contain the former property owner’s “personal information”.  In my view, the records are more accurately described as containing information about the property and not about the former owner in a personal capacity.

The treatment of information concerning residential properties was first addressed by Commissioner Sidney B. Linden in Order 23.  The Commissioner made the following findings, which have been applied in a number of subsequent orders of this office (e.g. Orders MO-188, MO-189, PO-1847):

In considering whether or not particular information qualifies as "personal information" I must also consider the introductory wording of subsection 2(1) of the Act, which defines "personal information" as "...any recorded information about an identifiable individual...".  In my view, the operative word in this definition is "about".  The Concise Oxford Dictionary defines "about" as "in connection with or on the subject of".  Is the information in question, i.e. the municipal location of a property and its estimated market value, about an identifiable individual?  In my view, the answer is "no"; the information is about a property and not about an identifiable individual.

The institution's argument that the requested information becomes personal information about an identifiable individual with the addition of the names of the owners of the property would appear to raise the potential application of subparagraph (h) of the definition of "personal information".

Subparagraph (h) provides that an individual's name becomes "personal information" where it "...appears with other personal information relating to the individual or where the disclosure of the name would reveal other information about the individual" (emphasis added).  In the circumstances of these appeals, it should be emphasized that the appellants did not ask for the names of property owners, and the release of these names was never at issue.  However, even if the names were otherwise determined and added to the requested information, in my view, the individual's name could not be said to "appear with other personal information relating to the individual" or "reveal other personal information about the individual", and therefore subparagraph (h) would not apply in the circumstances of these appeals.  [emphasis in original]

Applying Commissioner Linden’s reasoning to the circumstances of this appeal, I find that all of the requested records contain information about a property, specifically the property currently owned by the appellant.  Back in 1987, a new well was drilled on this property, along with others in the same vicinity, in order to address contamination issues caused by road salt used by the Ministry that had leaked into the existing wells.  The Ministry retained the services of MOE to investigate the cause of the problems on these properties and, as a result of MOE’s investigation, administrative arrangements were made with the various property owners, including the former owner of the appellant’s property, in order to proceed with the well drilling project.  No particular personal considerations were relevant in this context and, in my view, the records created by the Ministry contained information about the various properties and not about the former owner in any personal sense.

I should also note that none of the records contain “information relating to financial transactions” (paragraph (b) of the definition) involving the former property owner.  Although one of the records is titled “Settlement Agreement”, this record contains no financial information and the transaction reflected in this record is not accurately characterized as a “financial” one.

Simply stated, the information at issue in this appeal is “about” the property in question and not “about” the former owner.  As such, it falls outside the scope of the definition of “personal information” in section 2(1) of the Act.  Because only “personal information” can qualify for exemption under section 21(1), this exemption has no application in the circumstances of this appeal.

Other Issues

Portions of certain records include the names, addresses and telephone numbers of various property owners other than the former owner of the appellant’s property, and other records outline various test results from these neighbouring properties.  It is clear from the wording of the appellant’s request that she is only interesting in receiving information about her own property, and I find that information concerning the owners and test results on other properties falls outside the scope of the appeal and should not be provided to the appellant.

In its representations, the Ministry states:

In the course of reviewing the records denied to the appellant for the preparation of these representations, the Ministry noted that two of the records, …, contain unit price information provided by third parties contracting with the Ministry.  It is submitted that this information should be severed if the Ministry is ordered to disclose these records to the appellant.

On my review of the records I am unable to identify any so-called “unit price” information and, in any event, unit prices relating to work undertaken in 1987-88 would be meaningless today. The statements made by the Ministry are, in my view, not sufficient to warrant further consideration under section 17(1) and I decline to do so.

In summary, I find that none of the records contain the “personal information” of the former owner of the appellant’s property, and they should all be disclosed, subject to the severance of information relating to other property owners and test results relating to these other properties.

ORDER:

1.                  I order the Ministry to disclose all responsive records to the appellant by October 7, 2004.  Because there seems to be some confusion regarding the numbering of the various records in this appeal, I will provide the Ministry with a copy of the pages containing non-responsive information, highlighting the portions that should not be disclosed.

2.                  In order to verify compliance with Provision 1, I reserve the right to require the Ministry to provide me with a copy of the records disclosed to the appellant, upon my request.

Original signed by:                                                                        September 16, 2004                         

Tom Mitchinson