During mediation, the appellant confirmed that he was seeking access only to information regarding his son, and that he was not interested in information about the affected person.  Also during mediation, the Ministry contacted the affected person, who identified that she objected to the disclosure of any of the records, and who also provided the Ministry with a copy of an interim custody order, which stated that the issue of custody would be addressed on a specified date.  The Ministry also advised the appellant that its decision regarding continuing access would be made after this appeal was resolved.

With respect to the application of section 21(1) (invasion of privacy), the Ministry indicated that it was relying specifically on the factor in section 21(2)(f) (highly sensitive), and the presumptions in sections 21(3)(a) (medical information), 21(3)(c) (eligibility for social service benefits) and 21(3)(f) (individual’s finances) to deny access to the records.

The issues of the appellant’s ability to exercise the access rights belonging to his son under the Act and the severability of the records were raised during mediation.  As a result, the possible application of sections 66(c) and 10(2) were included as issues in this appeal.

Finally, the Ministry agreed to provide the appellant with a copy of the Index of Records listing all the records at issue in this appeal.

Mediation did not resolve the remaining issues, and the appeal was transferred to the inquiry stage of the process.  I sent a Notice of Inquiry to the Ministry and the affected party, initially, and received representations from both of them.  I then sent the Notice of Inquiry, along with a copy of the non-confidential portions of the Ministry’s representations, to the appellant.  The appellant provided representations in response.

RECORDS:

There are 34 records at issue in this appeal.  They include a narrative report, correspondence, client ledgers, applications for special funds, supplementary information sheets, program eligibility, equity rating criteria, invoices, authorizations and a direct deposit form.

DISCUSSION:

PRELIMINARY ISSUE:    Can the requester exercise a right of access on behalf of the individual who is less than sixteen years of age?

General principles

Section 66(c) states:

Any right or power conferred on an individual by this Act may be exercised,

if the individual is less than sixteen years of age, by a person who has lawful custody of the individual;

Under this section, a requester can exercise another individual’s right of access under the Act if he/she can demonstrate that

• the individual is less than sixteen years of age; and
• the requester has lawful custody of the individual.

If the requester meets the requirements of this section, then he is entitled to have the same access to the personal information of the individual as the individual would have.  The request for access to the personal information of the individual will be treated as though the request came from the individual himself (Order MO-1535).

The child on whose behalf the application for funding was made is less than 16 years of age, and the first requirement in section 66(c) is therefore fulfilled.

With respect to whether the appellant has lawful custody of the child, the Ministry identifies as follows in its representations:

The son resides with his mother, the estranged wife of the appellant.  The estranged wife completed the application form for Special Services at Home (SSAH) …. The estranged wife has a court order for custody. 

The Ministry then provided a copy of the referenced court order.

In addition, the Ministry states that the appellant was invited to provide documentation to support his position that he had joint custody, but chose not to do so.  The Ministry takes the position that the appellant does not have lawful custody of the child.

The Ministry’s representations were provided to the appellant. 

The appellant takes the position that, at the time the request was made to the Ministry, he had lawful custody of the child, and that it was only after a specified date, a few months after the request for the records was made, that the appellant “voluntarily provided custody” to the child’s mother.  He states:

Before that point, there was no document regarding custody between the affected party and I.  The affected party and I had equal custody of our children when the request was made and throughout the initial portion of this appeal

The appellant refers to the court order for interim custody, which is dated approximately three months after the decision, as the document supporting his position.  The appellant therefore takes the position that the Ministry should not have required the appellant to provide a document in support of his position that he had custody of his child.

Finding

In this appeal, the Ministry received the request from the appellant, and the request identified the information relating to the appellant’s son which was sought.  In the request letter, the appellant also stated:

While I believe I am entitled to this information on account of my joint custody of [my son], in the alternative, please treat this letter as a Freedom of Information request.

Upon receipt of the request, the Ministry identified that the records contained personal information of the appellant’s estranged wife, and the Ministry contacted her to determine whether she consented to the disclosure of her personal information.  Consent to disclosure was not forthcoming and, at that time, the appellant was asked to provide proof of joint custody.  It was approximately three months after this date that the appellant states that he “voluntarily provided custody” of the child to the child’s mother.

The parties have different views on whether the custody arrangements between them prior to the court order constituted a joint custody arrangement or not; however, it is not necessary for me to address this issue.

Previous orders have examined situations where the custody or access arrangements between parents has changed during the course of the processing of an appeal.  In Order P-1189, a request had been made to the Ministry of Health for information relating to the requester’s children.  Subsequent to the request, the requester’s right of access to his children was suspended by a court order.  In reviewing the impact this change had on access to the records in that appeal, Adjudicator Donald Hale stated:

Section 66(c) of the Act provides that the right of access under the Act may be exercised, where an individual is under the age of sixteen years, by a person who has lawful custody of the individual.  The appellant’s children, on whose behalf the appellant seeks to exercise a right of access, are, pursuant to a court order, in the custody of their mother.  The appellant is not, therefore, entitled to exercise a right of access under the Act on behalf of his children in the capacity of a “custodial parent”.

The Ministry submits that when the appellant submitted his request for information on behalf of his children, he advised the Ministry that, under section 20(5) of the Children’s Law Reform Act (the CLRA), he has rights as an “access parent” to obtain information about his children.  The Ministry subsequently discovered that the appellant is not, in fact, an “access parent” as his rights in that regard were suspended by court order.  The appellant’s right of access to his children has been suspended by a court order which was issued after the date of the request which gave rise to this appeal.

I find that the appellant no longer has the right to visit or be visited by his children following the court’s suspension of his right of access to them.  Therefore, the appellant is no longer an “access parent” within the meaning of section 20(5) of the CLRA with the rights of access to information about the children which flow from that status.  

To summarize, the appellant is not a “custodial parent” within the meaning of section 66(c) of the Act as he does not have custody of the children.

I adopt the approach taken by Adjudicator Hale.  In the circumstances, the appellant no longer has lawful custody of the child, and I am satisfied that section 66(c) of the Act does not apply. 

I will therefore consider his right to have access to the information in the records under other provisions of the Act.

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,

(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, 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.)].

The Ministry has taken the position that the records contain the personal information of the appellant’s son and the affected party.  The Ministry states:

Specifically, the request for Special Services at Home (SSAH) was made by the estranged wife [the affected party] to provide funding to purchase services such as respite care for her son and to provide her with parent relief.  Information in the application form and supporting documentation falls under section 2(1) of the Act.

The Ministry then identifies specific portions of the records which contain information that fits within paragraphs (a), (b) and (f) of the definition. 

I have carefully reviewed the records at issue, and find that many of the records contain personal information relating to the affected party, who completed the applications for SSAH funding and grants.  They contain information relating to her age, marital or family status (paragraph (a)), information relating to her medical and employment history, as well as to financial transactions in which she has been involved (paragraph (b)), her address and telephone number (paragraph (d)), her personal opinions or views (paragraph(e)), correspondence sent to an institution by her 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 (paragraph (f)), and her name where it appears with other personal information relating to her (paragraph (h)).

In addition, many of the records contain information which qualifies as the personal information of the appellant’s son, as they contain information relating to his age (paragraph (a)), information relating to his medical history (paragraph (b)), his address and telephone number (paragraph (d)), and his name where it appears with other personal information relating to him (paragraph (h)).

A few of the records contain personal information relating to the other son of the appellant and the affected party.  In addition, one of the records (Record 34) contains the personal information of the appellant, as it contains his name, along with other personal information relating to him (paragraph (h)).

In summary, I find that the records contain the personal information of the identified individuals as follows:

Records 1, 2, 3, 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 22, 27, 28, 29, 30, 31, 32 and 33 contain the personal information of the affected party and the son.

Records 4, 7 and 13 contain the personal information of the affected party, the son, and the other son of the appellant and the affected party.

Record 21 contains only the personal information of the affected party.

Record 34 contains the personal information of the son.  It also contains the personal information of the appellant and the affected party, as both of them are identified as having received a copy of this record.

I will now review whether the disclosure of the records to the appellant would constitute an unjustified invasion of privacy under either section 49(b) (for Record 34) or section 21 (for the other records).

INVASION OF PRIVACY

Section 47(1) of the Act gives individuals a general right of access to their own personal information held by an institution.  Section 49 provides a number of exemptions from this right.

Under section 49(b), where a record contains personal information of both the requester and another individual, and disclosure of the information would constitute an “unjustified invasion” of the other individual’s personal privacy, the institution may refuse to disclose that information to the requester.

Under section 21, where a record contains personal information only of an individual other than the requester, the institution must refuse to disclose that information unless disclosure would not constitute an “unjustified invasion of privacy”.

In both these situations, sections 21(1) to (4) provide guidance in determining whether the “unjustified invasion of personal privacy” threshold is met.

If the information fits within any of paragraphs (a) to (e) of section 21(1), it is not exempt from disclosure under sections 49(b) or 21(1).

Section 21(1) of the Act provides, in part:

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

(d) under an Act of Ontario or Canada that expressly authorizes the disclosure;

(f) if the disclosure does not constitute an unjustified invasion of personal privacy.

Section 21(1)(d)

Section 21(1)(d) provides an exception to the section 21(1) prohibition on access.  If disclosure of information is expressly authorized by a provincial or federal statute, section 21(1) does not operate to prevent disclosure of that information.

The appellant has referred me to section 20(5) of the Children's Law Reform Act (the CLRA) in support of his position that he is entitled to information about the health, education and welfare of his child.  This section reads:

The entitlement to access to a child includes the right to visit with and be visited by the child and the same right as a parent to make inquiries and to be given information as to the health, education and welfare of the child.

In Order M-787, Adjudicator Holly Big Canoe considered the relationship between section 16(5)  of the Divorce Act  and section 14(1)(d) of the Municipal Freedom of Information and Protection of Privacy Act (which is similar to section 21(1)(d) of the Act), concluding that reference in the Divorce Act  to the provision of information "as to the health, education and welfare of the child" to an individual who has access rights falls within the exception contained in section 14(1)(d).  In that order, Adjudicator Big Canoe also found that once section 14(1)(d) is found to apply, the mandatory prohibition against disclosure does not.  If this section applies, it cannot be argued that disclosure should be prohibited because it may constitute an unjustified invasion of personal privacy.

In Orders P-1246, P-1423 and MO-1480, other adjudicators applied the reasoning in Order M-787, and found that the right to information contained in section 20(5) of the CLRA, which is effectively the same as that contained in section 16(5)  of the Divorce Act , falls within section 21(1)(d) of the Act.  As stated by Adjudicator Liang in Order MO-1480:

The result of these orders is that individuals who are entitled to have access to a child, and therefore to the information described by the CLRA, cannot be prevented from having access to that information because of the provisions of section 14(1) of the Act.  Together, the provisions of the CLRA and this Act express a policy that in these limited circumstances, the welfare of children overrides personal privacy rights.

The parties in this appeal have provided representations on whether or not the appellant is the custodial parent of the son, and I have addressed that issue above.  However, the parties appear to be in agreement that the appellant has access rights to the son.  The appellant states that he has access rights to the child on identified days, and argues that he ought to be entitled to information about the “health, education and welfare” of the child.

The affected party acknowledges the provisions of the CLRA.  She states:

Section 20(5) of the CLRA and section 16(5)  of the Divorce Act  gives a non-custodial parent with access the right to make inquires and be given information with respect to health, education and welfare of a child.  Any medical reports attached to the records in question have been provided to [the appellant] and are available to him under the aforesaid Acts.

I am satisfied that the appellant is an individual who has access rights to his child, and is therefore entitled to have access to the information specified in section 20(5) of the CLRA.  Since the disclosure to the appellant of information which pertains to the health, education or welfare of his children is expressly authorized by section 20(5), the exception provided by section 21(1)(d) applies to that type of information.

In this appeal, however, the estranged spouse takes the position that the records in question do not contain information which falls within the relevant provisions of the CLRA and the Divorce Act , as it does not relate to the child’s health, education or welfare.

I agree that a number of the records at issue do not contain information pertaining to the health, education and welfare of the appellant’s son.  Many of the records contain the personal information of both the affected party and the son and relate primarily to the affected party’s financial arrangements and details regarding the application for funding.  I find that this information does not pertain to the health, education and welfare of the child.  Records 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 14, 17, 18, 19, 20, 27, 28, 29 and 33 fall within this category.

In my view, however, certain records or portions of records at issue do contain information that can reasonably be viewed as pertaining to the health and welfare of the appellant's child.

Specifically, Records 23, 24, 25, 26, which contain only the personal information of the appellant’s son, clearly relate to the health of the appellant’s son.

In addition, Record 34 clearly relates primarily to the health of the appellant’s son.  I have found that it also contains the personal information of the appellant and the affected party, and both of them are identified as having received a copy of this record.

Some of the records contain the personal information of both the affected party and the son, and relate to both the application for funding by the affected person, as well as the health and welfare of the son.  The Ministry takes the position that it is difficult to sever the son’s personal information without revealing the personal information of the affected party.  The affected party also states that the information is intertwined.

Section 10(2) of the Act deals with the severance of a record, and states:

If an institution receives a request for access to a record that contains information that falls within one of the exemptions under sections 12 to 22 and the head of the institution is not of the opinion that the request is frivolous or vexatious, the head shall disclose as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemptions.

I accept that some of the information in the remaining records is “intertwined”; however, in my view it is possible to sever certain information relating to the health and welfare of the child from the remaining information without revealing any personal information of the affected party.  I have reviewed the records remaining at issue, and have identified the portions of those records which contain information that can reasonably be severed under section 10(2) of the Act.  Specifically, I find that portions of Records 4, 12, 13, 15, 16, 22, 30, 31 and 32 can reasonably be severed, and I will provide the Ministry with highlighted copies of these records along with the copy of this order.

In summary, I have found that Records 23, 24, 25, 26 and 34, and portions of Records 4, 12, 13, 15, 16, 22, 30, 31 and 32 contain information that can reasonably be viewed as pertaining to the health and welfare of the appellant's child, and that the exception in section 21(1)(d) applies to them.  As no other exemptions have been relied on by the Ministry in its decision to deny access to these records or portions of records, the appellant is entitled to have access to them.

I will now review whether the exception in section 21(2)(f) applies to any of the remaining records or portions of records.

Section 21(1)(f)

Where a requester seeks personal information of another individual, section 21(1)(f) prohibits an institution from releasing this information except “if the disclosure does not constitute an unjustified invasion of personal privacy”.

Sections 21(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 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 the disclosure of which does not constitute an unjustified invasion of personal privacy.

With respect to section 21(3) 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].  In other words, once section 21(3) is found to apply, the factors in section 21(2) cannot be resorted to in favour of disclosure.

Section 21(2): factors weighing in favour of or against disclosure

Introduction

In order to determine whether disclosure would constitute an unjustified invasion of privacy under section 21(1)(f), I must consider whether any of the factors under section 21(2) apply.

The Ministry has objected to the release of the information, with reference to the factors in sections 21(2)(e), (f), (h) and (i).  The appellant takes the position that sections 21(2)(a), (b), (c) and (d) apply as factors favouring disclosure in this appeal. These sections state:

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 Government of Ontario and its agencies to public scrutiny;

(b)        access to the personal information may promote public health and safety;

(c)        access to the personal information will promote informed choice in the purchase of goods and services;

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

(e)        the individual to whom the information relates will be exposed unfairly to pecuniary or other harm;

(f)        the personal information is highly sensitive;

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

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

Section 21(2)(a): public scrutiny

The appellant takes the position that this factor applies in favour of disclosure.  He states that, without subjecting the records at issue to public scrutiny, there is no way to ensure the accuracy of the information provided by the affected party.

In my view, the arguments put forward by the appellant do not relate to the desirability of disclosure for the purpose of subjecting the activities of the Government of Ontario and its agencies to public scrutiny.  Rather, the appellant’s arguments relate to the desirability of subjecting the affected party’s actions to his own scrutiny.  I find that section 21(2)(a) is not a relevant factor in this appeal.

Section 21(2)(b): promote public health and safety

The appellant takes the position that this factor applies in favour of disclosure; however, he again states that he desires the information about his child to review the actions of the affected party.  In my view, this does not support a finding that section 21(2)(b) is a relevant factor, and I find that it has no application in this appeal.

Section 21(2)(c):  purchase of goods and services

Although the appellant argues that section 21(2)(c) is a factor in this appeal, his arguments in support relate to his interest in reviewing the records to determine his rights with respect to financial matters.  I find that section 21(2)(c) is not a relevant factor in this appeal.

21(2)(d):  fair determination of rights

For section 21(2)(d) to be apply, the appellant must establish that:

(1)        the right in question is a legal right which is drawn from the concepts of common law or statute law, as opposed to a non-legal right based solely on moral or ethical grounds; and

(2)        the right is related to a proceeding which is either existing or contemplated, not one which has already been completed; and

(3)        the personal information which the appellant is seeking access to has some bearing on or is significant to the determination of the right in question; and

(4)        the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing

[Order PO-1764; see also Order P-312, upheld on judicial review in Ontario (Minister of Government Services) v. Ontario (Information and Privacy Commissioner) (February 11, 1994), Toronto Doc. 839329 (Ont. Div. Ct.)].

The appellant takes the position that disclosure of the records is relevant to a fair determination of his rights, as he is concerned about the veracity of some of the information contained in the records, and he requires the information to allow him to establish that the affected party has provided false information either for the purpose of the application resulting in the creation of these records, or for other proceedings in which the appellant and the affected party are involved.  He also takes the position that certain records will assist in establishing the date of separation between the parties, which is critical for establishing certain rights under the Family Law Act.

Based on the appellant’s representations, I am not satisfied that the requirements set out above have been established.  I am not persuaded that the interest or “right” referred to by the appellant is in the nature of the sort contemplated by section 21(2)(d).  Although the appellant refers to his interest in obtaining the information to assist him, I am also not satisfied that the personal information which the appellant is seeking access to is required in order to prepare for any proceeding or to ensure an impartial hearing.  The appellant has not persuaded me that access to the personal information at issue is significant to or has some bearing on the determination of a legal right within the meaning of section 21(2)(d), and I find that it does not apply in these circumstances.

21(2)(e):  pecuniary or other harm

Although the Ministry takes the position that this factor applies, and that release of the information could expose the affected party to harm, the Ministry has not provided sufficient evidence to substantiate its position.  The affected party has also taken the position that this factor applies; however, on my review of the affected party’s representations, I find that the possible harm identified by the affected party is speculative.  In the circumstances, I am not persuaded that section 21(2)(e) is a relevant factor in this appeal.

Section 21(2)(f): highly sensitive

The Ministry takes the position that the information is highly sensitive, as it includes information about the affected party’s health as well as her finances.  The appellant takes the position that this is not a relevant factor.

To be considered highly sensitive, it must be found that disclosure of the information could reasonably be expected to cause excessive personal distress to the subject individual [Orders M 1053, P 1681, PO-1736].

I have carefully reviewed the records.  Portions of them contain information relating to the health and finances of the affected party.  Some other portions contain information about the affected party’s views and opinions about certain matters.  I am satisfied that much of the information contained in the records relating to the affected party can be considered “highly sensitive” information, and that section 21(2)(f) is a significant factor weighing against disclosure in this appeal.

Section 21(2)(h): supplied in confidence

The Ministry and the affected party take the position that the information in the records was supplied to the Ministry in confidence.  The appellant disputes this, and states:

I prepared the materials at issue in tandem with the affected party ….  Therefore, the affected party has no assurance of confidentiality pursuant to section 21(2)(h).

Other than the appellant’s statement that he prepared the materials “in tandem” with the affected party, I have no other information about whether the appellant has seen or reviewed any of the records remaining at issue.  It appears clear to me on my review of the records that the affected party prepared many of them and, based on the nature of the records and in the absence of any other evidence, I am satisfied that the records were supplied by the affected party to the Ministry in confidence.

21(2)(i):  unfair damage to reputation

The Ministry and the affected party take the position that this factor applies, however, the reasons cited for this are vague and, in the circumstances, I am not persuaded that section 21(2)(i) is a relevant factor in this appeal.

Analysis of factors

I have found that only the listed factors favouring non-disclosure in sections 21(2)(f) and (h) apply, and that none of the factors favouring disclosure apply to the records or portions of records remaining at issue.

Based on those findings, and on the weighing of the factors, it is my view that the disclosure of the personal information remaining at issue would constitute an unjustified invasion of personal privacy of the affected party.  Accordingly, I uphold the Ministry’s decision to deny access to that information on the basis of section 21(1) of the Act.

ORDER:

1)         I order the Ministry to provide the appellant with copies of Records 23, 24, 25, 26 and 34, and the highlighted portions of Records 4, 12, 13, 15, 16, 22, 30, 31 and 32 by sending him a copy by August 29, 2005 but not before August 22, 2005.

2)         I uphold the Ministry's decision to withhold the remaining records and parts of records from disclosure.

3)         In order to verify compliance with the terms of this order, I reserve the right to require the Ministry to provide me with a copy of the records or parts of records which are disclosed to the appellant pursuant to Provision 1.

Original Signed By:                                                                             July 22, 2005                          

Frank DeVries