Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Ontario Human Rights Commission (the OHRC) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for “access to all information supplied by all parties,” including reports from the requester’s family doctor, pertaining to a specified Human Rights complaint file in which the requester is the complainant. The OHRC issued a decision letter to the requester, denying access to the records in their entirety, relying on sections 14(1)(a) and (b) of the Act . The requester (now the appellant) appealed the OHRC’s decision to deny access. During mediation, the OHRC issued a new decision letter to the appellant granting partial access to the records. As it appeared that some of the records at issue could contain the personal information of both the appellant and other individuals, the mediator raised the possible application of the discretionary exemptions at sections 49(a) and (b) of the Act . Mediation did not resolve the appeal and the file was transferred to adjudication. This office initially sought and received representations from the OHRC. In its first submissions, the OHRC indicated that it was claiming the exemption at section 49(a) in conjunction with section 13(1) for certain portions of Records 6 and 15. The OHRC also agreed to disclose additional records. This office then sought supplemental representations from the OHRC regarding the additional exemptions. The OHRC provided further representations. The OHRC also issued a further decision letter to the appellant advising him of the additional exemptions claimed and releasing records 6 and 15 (in part) and 1, 2, 10, 11, 13, and 14 (in full). This office then sent a Notice of Inquiry along with a copy of the OHRC’s representations to the appellant. The appellant did not provide representations. RECORDS: The records remaining at issue are: 3, 4, 5, 6 (in part), 7, 8, 9, 12, 15(in part), 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25. The records include correspondence between the OHRC and the solicitors for the respondent in the appellant’s human rights complaint, internal memoranda, a case disposition and chronology, telephone contacts, and an Investigation Plan by the investigating officer. DISCUSSION: PRELIMINARY ISSUE LATE RAISING OF DISCRETIONARY EXEMPTIONS The OHRC in its representations claimed the discretionary exemptions at section 49(a) in conjunction with section 13(1) for portions of Records 6 and 15. The mediator had raised the possible application of section 49(a), but the OHRC had not previously referred to section 13(1). On June 10, 2003, this office provided the OHRC with a Confirmation of Appeal that provided the OHRC with 35 days from the date of the confirmation (July 15, 2003) to raise any new discretionary exemptions not originally claimed in its decision letter. No additional exemptions were raised during this period. In Order PO-2113, Adjudicator Donald Hale set out the following principles that have been established in previous orders with respect to the appropriateness of an institution claiming additional discretionary exemptions after the expiration of the time period prescribed in the Confirmation of Appeal: In Order P-658, former Adjudicator Anita Fineberg explained why the prompt identification of discretionary exemptions is necessary in order to maintain the integrity of the appeals process. She indicated that, unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it will not be possible to effectively seek a mediated settlement of the appeal under section 51 of the Act . She also pointed out that, where a new discretionary exemption is raised after the Notice of Inquiry is issued, this could require a re-notification of the parties in order to provide them with an opportunity to submit representations on the applicability of the newly claimed exemption, thereby delaying the appeal. Finally, she pointed out that in many cases the value of information sought by appellants diminishes with time and, in these situations, appellants are particularly prejudiced by delays arising from the late raising of new exemptions. The objective of the 35-day policy established by this Office is to provide government organizations with a window of opportunity to raise new discretionary exemptions, but to restrict this opportunity to a stage in the appeal where the integrity of the process would not be compromised or the interests of the appellant prejudiced. The 35-day policy is not inflexible. The specific circumstances of each appeal must be considered individually in determining whether discretionary exemptions can be raised after the 35-day period. The OHRC submits that the appellant has not been prejudiced by the late raising of the new discretionary exemptions because: The institution’s original decision was to withhold the records under sections 14(1)(a) and (b) and 49(a) as the complaint was ongoing and was being investigated. However, the institution has since decided to disclose these records, subject to severances pursuant to the exemptions set out in sections 13(1) and 49(a) of the Act . Therefore, the late raising of the discretionary exemptions will have the effect of increasing the amount of information being disclosed to the appellant. In the circumstances of this appeal, I am prepared to accept the OHRC’s submissions on this point. The OHRC originally claimed that records 6 and 15 were fully exempt under sections 14(1)(a) and (b) of the Act . The appellant has now been granted partial access to these records. The appellant also has had an opportunity to make representations on the application of the new discretionary exemptions. I find that the late raising of the discretionary exemptions has not prejudiced the appellant and I will proceed to consider section 49(a) in conjunction with section 13(1) for the portions of Records 6 and 15 still at issue. PERSONAL INFORMATION General principles In order to determine which sections of the Act may apply, it is necessary to decide whether the record contains “personal information” and, if so, to whom it relates. That term is defined in section 2(1) as follows: “personal information” means recorded information about an identifiable individual, including, (a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual, (b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved, (c) any identifying number, symbol or other particular assigned to the individual, (d) the address, telephone number, fingerprints or blood type of the individual, (e) the personal opinions or views of the individual except where they relate to another individual, (f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence, (g) the views or opinions of another individual about
Decision Content
NATURE OF THE APPEAL:
The Ontario Human Rights Commission (the OHRC) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for “access to all information supplied by all parties,” including reports from the requester’s family doctor, pertaining to a specified Human Rights complaint file in which the requester is the complainant.
The OHRC issued a decision letter to the requester, denying access to the records in their entirety, relying on sections 14(1)(a) and (b) of the Act.
The requester (now the appellant) appealed the OHRC’s decision to deny access.
During mediation, the OHRC issued a new decision letter to the appellant granting partial access to the records. As it appeared that some of the records at issue could contain the personal information of both the appellant and other individuals, the mediator raised the possible application of the discretionary exemptions at sections 49(a) and (b) of the Act.
Mediation did not resolve the appeal and the file was transferred to adjudication.
This office initially sought and received representations from the OHRC. In its first submissions, the OHRC indicated that it was claiming the exemption at section 49(a) in conjunction with section 13(1) for certain portions of Records 6 and 15. The OHRC also agreed to disclose additional records.
This office then sought supplemental representations from the OHRC regarding the additional exemptions. The OHRC provided further representations. The OHRC also issued a further decision letter to the appellant advising him of the additional exemptions claimed and releasing records 6 and 15 (in part) and 1, 2, 10, 11, 13, and 14 (in full).
This office then sent a Notice of Inquiry along with a copy of the OHRC’s representations to the appellant. The appellant did not provide representations.
RECORDS:
The records remaining at issue are: 3, 4, 5, 6 (in part), 7, 8, 9, 12, 15(in part), 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25.
The records include correspondence between the OHRC and the solicitors for the respondent in the appellant’s human rights complaint, internal memoranda, a case disposition and chronology, telephone contacts, and an Investigation Plan by the investigating officer.
DISCUSSION:
PRELIMINARY ISSUE
LATE RAISING OF DISCRETIONARY EXEMPTIONS
The OHRC in its representations claimed the discretionary exemptions at section 49(a) in conjunction with section 13(1) for portions of Records 6 and 15. The mediator had raised the possible application of section 49(a), but the OHRC had not previously referred to section 13(1).
On June 10, 2003, this office provided the OHRC with a Confirmation of Appeal that provided the OHRC with 35 days from the date of the confirmation (July 15, 2003) to raise any new discretionary exemptions not originally claimed in its decision letter. No additional exemptions were raised during this period.
In Order PO-2113, Adjudicator Donald Hale set out the following principles that have been established in previous orders with respect to the appropriateness of an institution claiming additional discretionary exemptions after the expiration of the time period prescribed in the Confirmation of Appeal:
In Order P-658, former Adjudicator Anita Fineberg explained why the prompt identification of discretionary exemptions is necessary in order to maintain the integrity of the appeals process. She indicated that, unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it will not be possible to effectively seek a mediated settlement of the appeal under section 51 of the Act. She also pointed out that, where a new discretionary exemption is raised after the Notice of Inquiry is issued, this could require a re-notification of the parties in order to provide them with an opportunity to submit representations on the applicability of the newly claimed exemption, thereby delaying the appeal. Finally, she pointed out that in many cases the value of information sought by appellants diminishes with time and, in these situations, appellants are particularly prejudiced by delays arising from the late raising of new exemptions.
The objective of the 35-day policy established by this Office is to provide government organizations with a window of opportunity to raise new discretionary exemptions, but to restrict this opportunity to a stage in the appeal where the integrity of the process would not be compromised or the interests of the appellant prejudiced. The 35-day policy is not inflexible. The specific circumstances of each appeal must be considered individually in determining whether discretionary exemptions can be raised after the 35-day period.
The OHRC submits that the appellant has not been prejudiced by the late raising of the new discretionary exemptions because:
the institution’s original decision was to withhold the records under sections 14(1)(a) and (b) and 49(a) as the complaint was ongoing and was being investigated. However, the institution has since decided to disclose these records, subject to severances pursuant to the exemptions set out in sections 13(1) and 49(a) of the Act. Therefore, the late raising of the discretionary exemptions will have the effect of increasing the amount of information being disclosed to the appellant.
In the circumstances of this appeal, I am prepared to accept the OHRC’s submissions on this point. The OHRC originally claimed that records 6 and 15 were fully exempt under sections 14(1)(a) and (b) of the Act. The appellant has now been granted partial access to these records. The appellant also has had an opportunity to make representations on the application of the new discretionary exemptions.
I find that the late raising of the discretionary exemptions has not prejudiced the appellant and I will proceed to consider section 49(a) in conjunction with section 13(1) for the portions of Records 6 and 15 still at issue.
PERSONAL INFORMATION
General principles
In order to determine which sections of the Act may apply, it is necessary to decide whether the record contains “personal information” and, if so, to whom it relates. That term is defined in section 2(1) as follows:
“personal information” means recorded information about an identifiable individual, including,
(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,
(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, telephone number, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except where they relate to another individual,
(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,
(g) the views or opinions of another individual about the individual, and
(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 a 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].
Even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual [Orders P-1409, R-980015, PO-2225].
To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed [Order PO-1880, upheld on judicial review in Ontario (Attorney General) v. Pascoe, [2002] O.J. No. 4300 (C.A.)].
Analysis
The OHRC submitted that the records contain the appellant’s personal information and that of other individuals. It states:
Records 1 – 9, 12, 15, 16, 18 – 23: contain the personal information of the appellant, as defined in section 2(1) of the Act, since they refer to his name; his human rights complaint file number and the name of the corporate respondent which he cited in his human rights complaint.
Records 10, 11, 13, 14: contain the personal information of the appellant, as defined in section 2(1) of the Act, since they refer to the appellant’s name; home address and telephone number and to the fact that the appellant has moved.
Records 17, 24, and 25: contain the personal information of the appellant, as defined in section 2(1) of the Act, since they refer to the appellant’s name; human rights complaint number and the name of the corporate respondent which he cited in his human rights complaint. These records also contain the personal information of other individuals as defined by the Act.
Record 17: contains the names of six third party witnesses, who are not named as personal respondents in the appellant’s human rights complaint, and the reference to them in this record does not indicate whether they are being referred to their professional capacity as employees of the respondent corporation.
Records 24 and 25: contain references to two of the named personal respondents in the appellant’s human rights complaint in conjunction with references to their employment situations with the corporate respondent, which have changed since the date that the human rights complaint was filed. The references to the changed employment situations of these two individuals can be defined as their employment history and therefore qualifies as their personal information, under the provisions of section 2(1) of the Act.