After the close of representations the appellant advised this office that for records that pre-date May 2003 she was no longer interested in the portions of those records that contain the affected person’s name and telephone number but that she continues to be interested in the municipal property address.  I note that all six records pre-date May 2003.  Accordingly, the affected person’s name and telephone number are no longer at issue.  The information that remains at issue under section 21 is described below under the “Records” section of this order.

RECORDS:

The records at issue consist of six water test reports.  The reports are entitled “Bacteriological Analysis of Drinking Water for Private Citizen, Single Household Only”.  The information at issue in these reports includes:

• return address of affected person (for receipt of test results)
• location of water source (including municipal property address)
• date water sample collected
• local health unit number
• test results, including indication of presence and amount of contaminants
• date of testing
• initial of individual who performed the test

DISCUSSION:

PERSONAL INFORMATION

What constitutes “personal information”?

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,

…

(c)        any identifying number, symbol or other particular assigned to the individual,

(d)       the address, telephone number, fingerprints or blood type of the 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,

…

(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;

The list of examples of personal information under section 2(1) is not exhaustive.  Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information (Order 11).

The appellant provides detailed submissions in response to those of the Ministry.  The appellant’s main points can be summarized as follows:

1.         The records contain water quality testing results done on the property and, therefore, the results do not constitute personal information under section 2(1) of the Act.  The sole purpose for requesting the information is to identify and correct water quality issues.

2.         The appellant purchased the subject property from the affected person and, therefore, the affected person’s identity and the address of the subject property is known to her and in the public domain.  In support of this position, the appellant includes with her representations real estate documents from the purchase and sale that provide the address of the property.  In addition, the appellant notes that the affected person’s name and address was listed in the local telephone book in 2002 and 2003.

3.         The appellant indicates that she possesses statements and documentation received from the affected person regarding water test results.  She encloses copies of two of the records at issue, which she says the affected person released to her.  The appellant’s position is that the affected person has, therefore, provided implied consent to the release of the records.

Regarding the appellant’s statement that the affected person’s identity and address are known to him and in the public domain, the Ministry states this knowledge is irrelevant in circumstances in which the affected person does not want any further personal information disclosed to the appellant.  The Ministry further submits that since the information at issue may be a source of disagreement between the appellant and affected party, disclosure would promote further incursions into the affected person’s personal privacy. 

Regarding the appellant’s suggestion that the affected person has provided implied consent to the release of her personal information, the Ministry states that any previous disclosures cannot be used as the basis for establishing implied consent to the release of the “remaining records”.  The Ministry submits that the affected person’s actions throughout the appeal process are consistent with having not provided consent to disclosure.  The Ministry states that the affected person was consulted by the mediator during the mediation process and the affected person did not provide her consent to the release of the records.  The Ministry states that the appellant cannot rely on the concept of implied consent in circumstances where the affected person has expressly not consented to disclosure. 

Analysis and findings

I have carefully considered the parties representations and, in particular, the application of Order PO-2322 to the circumstances of this case.  I have come to the conclusion that with the exception of the affected person’s “return address” the information at issue does not constitute her “personal information”.  

Dealing first with the affected person’s “return address”, I am satisfied that this information meets the definition of personal information under section 2(1)(d) as it represents the affected person’s “place of residence” (Order 23). 

Turning to the remaining information, I find that it is more accurately described as information about the property and not about the affected person in a personal capacity.

I appreciate that the Ministry would like me to distinguish the circumstances in this case from those in Order PO-2322 on the basis that the affected person in this appeal initiated the testing process out of personal concern for her water quality while in Order PO-2322 the testing process was initiated by the government as part of an investigation.  The Ministry seeks to reinforce this position by suggesting that if the affected person had retained a private water-testing firm to perform the testing the appellant would not have access to the test results and that, therefore, the affected person should not be prejudiced by its decision to use the Ministry.  

While I understand the Ministry’s argument, I find the differences superficial.  The affected person in Order PO-2322 also had concerns about the state of his property.  In fact, in its representations regarding the characterization of the information at issue as personal information the MTO states:

[T]he [MTO] 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.

In my view, the fact that the affected person in this appeal initiated the testing while in Order PO-2322 he did not is of no consequence.  In addition, the affected person’s decision to undertake testing through the Ministry rather than through a private testing facility is irrelevant.  The affected person made the decision to use the Ministry’s services and so any records created as a result of the Ministry’s testing are subject to the Act.

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 (see, for example, Orders MO-188, MO-189, PO-1847, PO-2322):

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 the information contained in the six water test reports, other than the return address, is information about the property and not about the affected person in a personal context.  As a result, 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 to this information.  Accordingly, I find that the information in the six water test reports, other than the affected person’s return address, should be disclosed to the appellant. 

I will now examine the application of the section 21 personal privacy exemption to the affected person’s return address.

INVASION OF PRIVACY

If the information fits within any of the exceptions under sections 21(1)(a) through (f), it is not exempt from disclosure under section 21.  The only one of these sections that could apply in this appeal is section 21(1)(f), which provides an exception to the exemption “if the disclosure does not constitute an unjustified invasion of personal privacy.”

Sections 21(2), (3) and (4) 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 21(2) provides some criteria for the institution to consider in making this determination.  Section 21(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy.  Section 21(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 21(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767]. 

A section 21(3) presumption can be overcome if the personal information at issue falls under section 21(4) of the Act or if a finding is made under section 23 of the Act that a compelling public interest exists in the disclosure of the record in which the personal information is contained which clearly outweighs the purpose of the section 21 exemption [Order PO-1764].

If none of the presumptions in section 21(3) applies, the institution must consider the application of the factors listed in section 21(2), as well as all other considerations that are relevant in the circumstances of the case.

Neither the Ministry’s nor the affected person’s representations deal specifically with the application of section 21 to the affected person’s “return address”.  Instead, they focus on the application of section 21 to the test results and related information contained in the six water test reports, which I have already found does not qualify as personal information.  On the other hand, the appellant has expressed an interest in knowing the “municipal property address” and she provides representations in support of her entitlement to this information.  However, I note that the municipal property address forms part of the “location of water source”, which I have found does not qualify as personal information.  In my view, it is the location of water source that the appellant is seeking, not the affected person’s return address.  With regard to the return address, I view this as personal information and I see no factors weighing in favour of disclosure.  Accordingly, I find this information exempt under section 21 of the Act. 

ORDER:

1.         I order the Ministry to disclose the portions of the six records at issue to the appellant no later than January 7, 2005 but not before December 31, 2004, in accordance with the highlighted version of these records included with the Ministry’s copy of this order.  To be clear, the Ministry should not disclose the highlighted portions of this record.

2.         In order to verify compliance with provision 1 of this order, I reserve the right to require the Ministry to provide me with a copy of the records they disclose to the appellant.

Original signed by:                                                                                 November 30, 2004            

Bernard Morrow