Access to Information Orders
Decision Information
In Order PO-2109, I reviewed a decision issued by the Ontario Rental Housing Tribunal (the Tribunal) in response to a request under the Freedom of Information and Protection of Privacy Act (the Act) for the production of a weekly list consisting of “... all names, addresses, hearing dates and the location of the hearing of tenants whose landlords, in the future, file an application to evict with the Tribunal.”
During the course of that appeal, it was brought to my attention that the Tribunal had a practice of disclosing “custom reports” to commercial clients outside of the Act. The reports were frequently disclosed under terms outlined in Memoranda of Understanding between the Tribunal and the individual requesters but were also disclosed in response to individual requests for select information contained in various application files. These reports were provided to a number of requesters on a regular basis.
The reports that I reviewed during the course of that previous appeal appeared to contain the personal information of individuals (names, addresses, dates and locations of eviction proceedings) other than the requesters. After conducting an inquiry, I found that the information at issue qualified as “personal information” as that term is defined in section 2(1) of the Act, and that none of the exceptions to the mandatory section 21 exemption dealing with this type of information were present. Therefore, I required the Tribunal to withhold access. As a postscript to Order PO-2109, I stated that agreements of that nature “cannot take precedence over the Act in circumstances where the personal information at issue qualifies under the mandatory section 21 exemption claim.” I urged the Tribunal to review its policy of providing personal information of tenants and to take whatever steps were required to ensure that any such disclosure is made in accordance with the Act.
In response to Order PO-2109, the Tribunal rescinded its outstanding Memoranda of Understanding for “custom reports” and denied subsequent requests under the Act for information contained in Tribunal application files.
Decision Content
BACKGROUND
In Order PO-2109, I reviewed a decision issued by the Ontario Rental Housing Tribunal (the Tribunal) in response to a request under the Freedom of Information and Protection of Privacy Act (the Act) for the production of a weekly list consisting of “… all names, addresses, hearing dates and the location of the hearing of tenants whose landlords, in the future, file an application to evict with the Tribunal.”
During the course of that appeal, it was brought to my attention that the Tribunal had a practice of disclosing “custom reports” to commercial clients outside of the Act. The reports were frequently disclosed under terms outlined in Memoranda of Understanding between the Tribunal and the individual requesters but were also disclosed in response to individual requests for select information contained in various application files. These reports were provided to a number of requesters on a regular basis.
The reports that I reviewed during the course of that previous appeal appeared to contain the personal information of individuals (names, addresses, dates and locations of eviction proceedings) other than the requesters. After conducting an inquiry, I found that the information at issue qualified as “personal information” as that term is defined in section 2(1) of the Act, and that none of the exceptions to the mandatory section 21 exemption dealing with this type of information were present. Therefore, I required the Tribunal to withhold access. As a postscript to Order PO-2109, I stated that agreements of that nature “cannot take precedence over the Act in circumstances where the personal information at issue qualifies under the mandatory section 21 exemption claim.” I urged the Tribunal to review its policy of providing personal information of tenants and to take whatever steps were required to ensure that any such disclosure is made in accordance with the Act.
In response to Order PO-2109, the Tribunal rescinded its outstanding Memoranda of Understanding for “custom reports” and denied subsequent requests under the Act for information contained in Tribunal application files.
NATURE OF THE APPEAL:
The Tribunal received a request under the Act for information that the requester proposed might form the basis of a new Memorandum of Understanding (MOU) between the requester and the Tribunal. The proposed MOU was to have all the same terms, timetables, and conditions of a previous MOU between the parties and provide for continued and regular access to the following information:
- application file number
- date the application was filed
- address of the rental unit which the application applies, including unit number, street address, city, postal code
- date and time of the application hearing
- location of the application hearing
The Tribunal identified the responsive records and denied access to all of the information in accordance with section 21 of the Act (invasion of privacy). In its decision letter the Tribunal stated:
In light of Order PO-2109, issued by the [IPC], I believe the information is personal under [the Act], even without the names and telephone numbers. The information still includes the addresses of the tenants, and addresses are considered personal information under clause 2(1)(a) of [the Act]. These addresses still allow you to contact tenants at their homes, even without their names (for example, by addressing a letter to the “occupant”). Given that this contact would be initiated based on your knowledge that they are subject to applications to terminate their tenancies’, I believe contacting them in that manner would constitute an unjustified invasion of personal privacy pursuant to section 21 of [the Act].
The requester, now the appellant, appealed the Tribunal’s decision.
During mediation, the appellant clarified that he is seeking access to information contained in all landlord and tenant applications for all districts, regions, and areas served by the Tribunal. The appellant also clarified during mediation that by “all applications” he is referring to:
- Above Guideline Increase (AGI) applications
- Eviction applications (including all the sub-categories)
- Reduction of Rent applications
- Tenant’s Rights applications
- Maintenance Rights applications
I initiated my inquiry by sending a Notice of Inquiry to the appellant setting out the issues and seeking representations. The appellant responded with representations. I then asked for and received documentation from the Tribunal on the processes and practices relating to the collection, use and disclosure of file related information.
RECORDS:
The record at issue in this appeal is a custom report compiled from information contained on all active landlord and tenant applications received by the Tribunal. I have reviewed samples of reports previously disclosed by the Tribunal in response to a similar request by the appellant. The Tribunal has also provided me with samples of their application forms. While the application forms contain the names of tenants that are parties to the applications, as well as detailed information surrounding the applications themselves, the information requested by the appellant is limited to the following:
• Case/file number
• Address of the unit affected by the application including unit number
• Date that the application was filed
• Date, time and location of the hearing
The request does not include tenant names.
DISCUSSION:
PERSONAL INFORMATION
General principles
The section 21 personal privacy exemption applies only to information that qualifies as “personal information” as defined in section 2(1) of the Act. “Personal Information” is defined, in part, as follows:
“personal information” means recorded information about an identifiable individual, including,
…
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, telephone number, fingerprints or blood type of the individual,
…
(h) 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;
To qualify as personal information, the information must be about the individual in a personal capacity. As a general rule, information associated with an individual in their professional, official or business capacity will not be considered to be “about” the individual [Orders P-257, P-427, P-1412, P-1621, R-980015, MO-1550-F, PO-2225].
In addition, to qualify as personal information, it must be reasonable to expect that an individual may be identified from the information [Order PO-1880, upheld on judicial review in Ontario (Attorney General) v. Pascoe, [2002] O.J. No. 4300 (C.A.)].
Appellant’s representations
The appellant submits that the information at issue in this appeal is distinguishable from the information covered by Order PO-2109:
… The Appellant in [Order PO-2109] was requesting information about specific identifiable persons, that being “tenants whose landlord’s had filed for eviction.”
In [this current appeal], the Appellant does not request information about any specific identifiable person. Instead, the request …, requests information pertaining to “the property”, a property which is a business address, and any litigation which may effect the property.
The Appellant in this matter takes the position that landlords are in the business of renting residential premises. They conduct this business in an ongoing manner on a monthly basis by executing a payment of funds tendered by the tenant for the right to occupy the specific premise.
The appellant refers to section 1 of the Tenant Protection Act (the TPA), which defines the terms “rent”, “rental unit”, “landlord”, and “tenant”, and submits that those terms “describe a business relationship with regular transactions in exchange for the right to occupy the specific rental unit”. The appellant argues that his position is supported by the fact that the landlord advertises the address of the rental unit in order to find and secure tenants. He also points to Order M-454, which, in the appellant’s view, makes it clear “that there can be no expectation of privacy with respect to a business address”.
Findings
Case/file number
The definition of “personal information” includes “any identifying number” assigned to an identifiable individual [paragraph (c)].
The appellant’s request includes the case/file number for all active Tribunal applications. The Tribunal explains that when an application is initially scanned into their computer database, the system automatically assigns an application number for the file. The Tribunal has confirmed that only parties to an application have access to information from the file. I have been provided with a copy of the Tribunal’s Call Centre and Counter Policies Issue #13 which details how Tribunal staff should respond to requests from clients to access files. That policy states:
Staff should not provide information about Tribunal applications to non-parties, even if they know the file number. Staff should tell the client they can request the information under [the Act].
The file number itself is not referable to an individual. Given the Tribunal’s policy, I am satisfied that the file associated with a file number is not accessible to anyone other than a party to the application. Accordingly, there is no reasonable expectation that an individual can be identified from the file number, and the number cannot be considered an identifying number assigned to an individual. Therefore, the number does not qualify as “personal information”, and it should be provided to the appellant.
Address
“Personal information” also includes the address of an identifiable individual [paragraph (d)].
The address information included in the record includes unit number, street address, city and postal code.
In its decision letter, the Tribunal outlines its position that the address, even without the tenant names and telephone numbers, would constitute the tenants’ “personal information”:
The information still includes the addresses of the parties, and addresses are considered personal information under clause 2(1) of [the Act]. These addresses still allow you to contact tenants at their homes, even without their names (for example, by addressing a letter to the “occupant”). Given that this contact would be initiated based on your knowledge that they are subject to applications to terminate their tenancies, I believe contacting them in that manner would constitute an unjustified invasion of personal privacy pursuant to section 21 of [the Act].
It is well established that an individual’s address qualifies as “personal information” under paragraph (d) of section 2(1) of the Act, as long as the individual residing at the address is identifiable. However, previous orders have found that if an address is not referable to an identifiable individual it does not constitute personal information for the purposes of the Act. For example, in Order PO-2191, Adjudicator Frank DeVries found that an address contained on an occurrence report for a motor vehicle collision was not “personal information”. He determined that the address was simply a reference point used by the Police to identify where the collision took place, and that there was no indication that the address was referable to an identifiable individual or that any individual at that address was in any way involved in the incident.
In this appeal, the appellant is seeking the street address, city, postal code and specific unit number that is subject to an application under the TPA. In my view, if all of this address-related information is disclosed, it is reasonable to expect that the individual tenant residing in the specified unit can be identified. Directories or mailboxes posted in apartment buildings routinely list tenants by unit number, and reverse directories and other tools are also widely available to search and identify residents of a particular unit in a building if the full address is known. Accordingly, I find that the full addresses of units subject to Tribunal applications consist of the “personal information” of tenants residing in those units, as contemplated by paragraph (d) of the definition.
That being said, if unit numbers are removed, I find that the street address, city and postal code on their own do not provide sufficient information to reasonably identify a specific resident of a unit within a residential rental accommodation. The vast majority of rental units in the province are contained in multi-unit buildings and, in the absence of any other associated field of information that would itself constitute a tenant’s “personal information”, disclosing address-related information with the unit number removed would render identifiable information non-identifiable, thereby removing it from the scope of the definition of “personal information”. Accordingly, the address-related information, with unit numbers severed, should be provided to the appellant.
Name of landlord/tenant
“Personal information” also includes an 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)].