Access to Information Orders
Decision Information
• Request for Ontario Rental Housing applications/orders involving two named tenants
• Section 21(5) (refusal to confirm or deny existence of record) upheld
• Section 23 (public interest override) does not apply
• Decision to refuse to confirm or deny existence of record upheld
Decision Content
NATURE OF THE APPEAL:
The Ontario Rental Housing Tribunal (the Tribunal) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for records relating to applications involving two individuals who are identified by name. The request states:
Please provide to us copies of the Applications which the above captioned Tenants were involved in, as well as copies of any Orders in the file relating to Applications where those Tenants had been involved as a party.
In its decision letter in response to the request, the Tribunal cites the exemption in section 21(5) of the Act, and refuses to “confirm or deny the existence of Tribunal records related to specific individuals, as this would constitute an unjustified invasion of the personal privacy of the individual.”
The requester’s counsel (now the appellant) appealed the Tribunal’s decision to this office. In his appeal letter, the appellant argues that there is a public interest in disclosure of the requested information, and cites the Tenant Protection Act, 1997 (TPA) and Statutory Powers Procedure Act (SPPA). This raises the possible application of the “public interest override” found in section 23 of the Act. In this regard, the appeal letter states as follows:
To deny the public the ongoing case law of decisions and determinations made by the Tribunal which guide Landlords and Tenants in the Province of Ontario is clearly in breach of the public interest and is contrary to Section 23 of the Act. It is suggested that Orders specifically should be exempted from any prohibitions and that Orders even if they contain personal information ought to be disclosed in the public interest.
It is submitted that Orders given are necessarily historical and may or may not provide personal information of the Tenants.
Orders granted by the Tribunal set out the address of the rental unit which is the subject matter of the Application which may or may not be the address of the Tenant and in many cases is a former address of the Tenant if a Landlord has obtained an eviction Order and has enforced the Order or the Tenant has voluntarily vacated the rental unit. Certainly Orders do not contain information which are set out in the Applications filed with the Tribunal.
The appeal was assigned to a mediator, but mediation did not resolve the issues and the appeal was moved to adjudication. The appeal was subsequently placed on hold, pending the Ontario Court of Appeal’s decision in Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner) (2004), 73 O.R. 321 (C.A.), leave to appeal refused [2005] S.C.C.A. No. 95 [“Minister of Health and Long-Term Care”]. That decision addressed this office’s interpretation of section 21(5).
Once the Court of Appeal rendered its decision, I issued a Notice of Inquiry to the Tribunal seeking their representations on section 21(5) and the possible application of the public interest override. I also sent a Notice of Inquiry to the tenants named in the request (the affected parties). The affected parties responded with representations. I then shared the non-confidential representations of the Tribunal with the appellant, who was given an opportunity to make representations in reply, and did so. I then invited the Tribunal to comment on the appellant’s representations on sur-reply, and the Tribunal did so.
DISCUSSION:
MOOTNESS
The Tribunal submits that the issues raised in this appeal are now moot. In this regard, the Tribunal states:
The request that led to this appeal was made by counsel for the purpose of assisting his client in proceedings related to an application before the Tribunal. In his letter of appeal, the appellant sets out “The information requested in our request was a request for historical information which would provide a defence to the Appellant in relation to an Application which had been commenced against it by its current Tenants…” That purpose no longer exists. The Tribunal applications involving the appellant’s clients and the two tenants named in the request have been resolved. There are no live issues between this landlord and these tenants before the Tribunal.
In Order P-1295, former Assistant Commissioner Irwin Glasberg considered the question of when an appeal under the Act could be considered moot. He stated:
The leading Canadian case on the subject of mootness is the Supreme Court of Canada’s decision of Borowski v. The Attorney General of Canada [(1989), 57 D.L.R. (4th) 231]. There, the court commented on the topic of mootness as follows:
The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot ...
In the Borowski case, Sopinka J., speaking for the court, indicated that a two-step analysis must be applied to determine whether a case is moot. First, the court must decide whether what he referred to as “the required tangible and concrete dispute” has disappeared and the issues have become academic. Second, in the event that such a dispute has disappeared, the court must decide whether it should nonetheless exercise its discretion to hear the case.
An appeal could be moot where, for example, the requester already has unrestricted access to the record at issue. This case cannot be said to be moot in the same sense. The tribunal’s mootness argument arises from its view of the appellant’s purpose for making the request.
Except in particular circumstances, the underlying purpose for a request is not a relevant factor in whether to grant access or uphold the application of an exemption. Requesters are not required to spell out their reasons for submitting access requests (see, for example, Orders M-274 and P-240). In this case, the appellant has at times referred to other proceedings in which his client is involved, but has not stated that this is the sole purpose for making the request, nor has the appellant withdrawn the appeal. It is for the appellant to decide whether he still seeks access, notwithstanding the fact that collateral proceedings may no longer be ongoing. The appellant is privy to this aspect of the Tribunal’s representations because this argument was contained in the representations that were shared with him. The fact that he has not withdrawn the appeal is, in my view, determinative of the issue in this case.
I find that the appeal is not moot.
REFUSAL TO CONFIRM OR DENY THE EXISTENCE OF A RECORD
Section 21(5) gives the Tribunal the discretion to refuse to confirm or deny the existence of a record in certain circumstances. It states:
A head may refuse to confirm or deny the existence of a record if disclosure of the record would constitute an unjustified invasion of personal privacy.
Section 21(5) gives an institution discretion to refuse to confirm or deny the existence of a record in certain circumstances.
A requester in a section 21(5) situation is in a very different position from other requesters who have been denied access under the Act. By invoking section 21(5), the institution is denying the requester the right to know whether a record exists, even when one does not. This section provides institutions with a significant discretionary power that should be exercised only in rare cases [Order P-339].
Before an institution may exercise its discretion to invoke section 21(5), it must provide sufficient evidence to establish both of the following requirements:
1. Disclosure of the record (if it exists) would constitute an unjustified invasion of personal privacy; and
2. Disclosure of the fact that the record exists (or does not exist) would in itself convey information to the requester, and the nature of the information conveyed is such that disclosure would constitute an unjustified invasion of personal privacy.
The Ontario Court of Appeal has upheld this approach to the interpretation of section 21(5), stating:
The Commissioner’s reading of s. 21(5) requires that in order to exercise his discretion to refuse to confirm or deny the report’s existence the Minister must be able to show that disclosure of its mere existence would itself be an unjustified invasion of personal privacy.
[Orders PO-1809, PO-1810, upheld on judicial review in Minister of Health and Long-Term Care]
Requirement one: disclosure of the record (if it exists)
Definition of personal information
Under the first requirement outlined above in relation to section 21(5), the Tribunal must demonstrate that disclosure of the record, if it exists, would constitute an unjustified invasion of personal privacy. An unjustified invasion of personal privacy can only result from the disclosure of personal information.
Section 2(1) defines personal information, in part, 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,
(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, 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 Tribunal’s representations state:
Information included in Tribunal application files will always include a tenant’s name and address, including the unit number. The Tribunal application form will normally also include the tenant’s telephone number. This information falls under clauses 2(1)(d) and (h) of the definition of personal information. The application form also requires the application to include information about the individual’s sex, which would fall under clause 2(1)(a) of the Act.
The appellant did not make representations as to whether the requested records, if they exist, would contain the personal information of identifiable individuals.
I have considered Tribunal’s representations and am satisfied that the requested records, if they exist, would contain personal information including the tenant’s (or tenants’) name, sex, telephone number and unit number, and potentially other information about these individuals as well. I therefore find that the requested records, if they exist, would contain “personal information” as defined in section 2(1) of the Act.
Unjustified invasion of personal privacy
The factors and presumptions in sections 21(2), (3) and (4) help in determining whether disclosure would or would not be “an unjustified invasion of privacy” under section 21(5). Sections 21(2) and (3) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of personal privacy. Section 21(2) lists some criteria for the Tribunal is to consider in making this determination; and section 21(3) identifies certain types of information, the disclosure of which is presumed to constitute an unjustified invasion of personal privacy. Section 21(4) identifies information whose disclosure is not 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). A section 21(3) presumption can be overcome, however, if the personal information at issue is caught by section 21(4) or if the “compelling public interest” override at section 23 applies (John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767).
The Tribunal takes the position that disclosing any information, if it exists, would constitute a presumed unjustified invasion of privacy under section 21(3)(f) of the Act. The Tribunal also states that the presumptions at sections 21(3)(a), (c), (d), (g) and (h) could also apply to the requested records, if they exist, and that the factors favouring non-disclosure at sections 21(2)(e), (f), (h) and (i) are relevant. The Tribunal also submits that the factors at sections 21(2)(a) and (d), among others, do not apply. Sections 21(2) and 21(3), read, in part:
(2) 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;
(d) the personal information is relevant to a fair determination of the 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.
(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,
(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;
(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels;
(d) relates to employment or educational history;
(f) describes an individual's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;
(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or
(h) indicates the individual's racial or ethnic origin, sexual orientation or religious or political beliefs or associations.
With regard to the application of the presumption at section 21(3)(f) and the type of information being sought by the appellant, the Tribunal states:
In Order PO-2372, Adjudicator Stephanie Haly determined that the Tribunal files subject to that appeal contained allegations of money owed by tenants and that this information related to the tenants’ finances, liabilities and financial history pursuant to section 21(3)(f) of the Act. Given that the majority of Tribunal applications include allegations of money owing, it is likely that the records requested by the appellant, if they existed, would contain similar information, disclosure of which would be found to be an unjustified invasion of personal privacy.
The Tribunal also suggests that information contained in Tribunal applications files may fall under one of the other presumptions found at section 21(3) of the Act and states:
• Tribunal applications occasionally include information related to an individual’s medical or psychological history pursuant to 21(3)(a).
• Under the TPA, a social housing provider can apply to terminate the tenancy of a tenant who no longer qualifies to reside in social housing. It is likely that an application of this type will contain information that could fall under clause 21(3)(c).
• A Tribunal application may contain information that relates to an individual’s employment history pursuant to clause 21(3)(d) – for example, a tenant may request the Tribunal consider extenuating circumstances such as loss of employment when deciding whether a repayment schedule might be more appropriate than an eviction for nonpayment of rent.
• Information such as character references under clause 21(3)(g) could be found in a Tribunal file – for example, someone might provide a character reference in support of a tenant who is subject to an eviction application.
• Tribunal orders often deal with allegations of discrimination or harassment based on race, religion or sexual orientation. For example, a tenant could apply to the Tribunal because their landlord has harassed them on the basis of their racial origin. In those, cases, disclosure would be a presumed invasion of privacy pursuant to clause 21(3)(h).
As regards section 21(2), the Tribunal submits that the factors favouring disclosure at sections 21(2)(a) and (d) do not apply. The Tribunal states that the appellant did not submit the request for the purpose of subjecting the tribunal’s activities to public scrutiny (section 21(2)(a)). The Tribunal submits further that, even if the appellant sought the information in relation to a fair determination of his client’s rights (section 21(2)(d)), that no longer applies because the application is complete.
Turning to factors favouring non-disclosure, the Tribunal submits that there is potential for pecuniary harm in some cases (section 21(2)(e)), and that in cases involving mediation, section 21(2)(h) would apply. The Tribunal also suggests that damage to reputation may also be relevant (section 21(2)(i)) and weighs heavily against disclosure. Regarding section 21(2)(f), the Tribunal submits that disputes between landlords and tenants that lead to Tribunal applications are often highly contentious.
The appellant did not make specific submissions about the different subsections of section 21(2) referred to by the Ministry. The appellant refers to section 21(3) as follows:
With respect to Subsection 21(3) we would expect that it is highly unlikely that with respect to the record requested, that any information set forth in Subsection 21(3), would be contained in such an Order.
Having reviewed the representations of the parties, I find that section 21(3)(f) applies to some information that could be expected to be found in the requested records, if they exist. I agree with the Tribunal that its application files and orders typically relate to amounts of money alleged or determined to be owed by tenants, usually in relation to arrears of rent for identified time periods. In my view, information of this nature relates to an individual’s finances, liabilities and financial history pursuant to section 21(3)(f) of the Act. Accordingly, I find that portions of the requested records, if they exist, would be subject to the presumption under section 21(3)(f).
The other presumptions cited by the tribunal pertain to more unusual fact situations and, although they may well form part of many application files and orders, I am not satisfied that they would apply in this case, if records were to exist.
With respect to the remaining information in the records, if they exist, I am satisfied that landlord and tenant disputes are contentious, and that it would be reasonable to expect that tenants would suffer embarrassment and significant personal distress if they are disclosed. Whether or not the requested records exist, this view is supported by the representations of the affected parties in this case. I therefore find that the factor at section 21(2)(f) would apply to the records, if they exist. While the other section 21(2) factors cited by the Tribunal may apply in some cases, I am not satisfied that they are established for records that might exist in this case, if there are any.
As well, I agree with the Tribunal that the factors favouring disclosure at sections 21(2)(a) and (d) are not established in this case. I am not satisfied that disclosure of the requested records, if they exist, would relate or contribute to public scrutiny of the Tribunal under section 21(2)(a) in the circumstances of this case. As regards section 21(2)(d), the appellant has not provided evidence to support its application and as the Tribunal notes, the application mentioned by the appellant is complete.
In conclusion, I find that disclosure of the records, if they exist, would be an unjustified invasion of personal privacy based on sections 21(2)(f) and 21(3)(f). Section 21(4) would not apply to the records, if they exist. I will now consider whether there would be a public interest in disclosure of the records, if they exist, under section 23 of the Act before reaching a final conclusion about whether the first requirement under section 21(5) is met.
Public Interest Override
As stated above, the appellant has raised the application of the section 23 “public interest override”. Section 23 of the Act states:
An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21 and 21.1 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.
For section 23 to apply, two requirements must be met. First, there must be a compelling public interest in the disclosure of the records. Second, this interest must clearly outweigh the purpose of the exemption [see Order P-1398, upheld on judicial review in Ontario (Ministry of Finance) v. Ontario (Information and Privacy Commissioner) (1999), 118 O.A.C. 108 (C.A.), leave to appeal refused (January 20, 2000), Doc. 27191 (S.C.C.)]. In Order P-1398, I made the following statements regarding the application of section 23:
An analysis of section 23 reveals two requirements which must be satisfied in order for it to apply: (1) there must be a compelling public interest in disclosure, and (2) this compelling public interest must clearly outweigh the purpose of the exemption.
If a compelling public interest is established, it must then be balanced against the purpose of any exemptions that have been found to apply. Section 23 recognizes that each of the exemptions listed, while serving to protect valid interests, must yield on occasion to the public interest in access to information that has been requested. An important consideration in this balance is the extent to which denying access to the information is consistent with the purpose of the exemption.
The Tribunal submits that the public interest override does not apply to the circumstances of this appeal and states:
In this case, we are dealing with [whether or not] an individual has been a party to a Tribunal application. In making his request, the appellant was clearly advancing a private interest on behalf of his client, namely defending his client in applications before the Tribunal.
…
It is hard to imagine how a request to find out information about individual’s history with the Tribunal could ever be made to satisfy anything other than a private interest. The end result is finding out about the individual, and in our past experiences, these requests appear to be made on the hopes that the requester will find out negative information about the individual. Disclosing this type of information does not serve the purpose of informing the citizenry about the activities of government, and does not add in some way to the information the public has to make political choices. (Order PO-984)
The appellant’s representations refer in considerable detail to the impact of the TPA and the SPPA. The appellant also makes arguments based on the original jurisdiction of superior courts over landlord and tenant disputes. The appellant’s representations raise a concern regarding the general lack of availability of Tribunal orders to those regularly appearing before the Tribunal. The appellant’s representations in this regard have been set out in full in Order PO-2511 which is being issued concurrently with this order.
In Order PO-2511, I considered the appellant’s arguments in detail and found that the public interest override at section 23 did not apply. I adopt the reasons articulated in that decision. In this case as well, for the same reasons, I find that section 23 does not apply. As noted in Order PO-2511, I am required to deal with each case on its own facts, and the representations of the appellant on this issue are, for the most part, generic and not fact-specific. In any event, as articulated in Order PO-2511, it is my view that any public interest in tribunal decisions identified by the appellant is met by the fact that they are typically disclosed with identifying information removed, so that disclosure is not an unjustified invasion of personal privacy. In this case, however, that approach could not be taken to the records, if they exist, since the request identifies the tenants by name.
The appellant’s representations also refer to several specific situations in support of his public interest argument – e.g. where a party argues that an application is frivolous or vexatious or where other decisions may be relevant to the type of relief to be granted by the Tribunal under section 84 of the TPA.
As just stated, I must decide each case based on its specific facts. The appellant has not provided evidence to support the relevance of either the frivolous or vexatious argument, or the relief to be granted under section 84, in relation to the request he has submitted in this case. I find that these factors do not support a finding that there is a public interest in disclosure of the records requested in this appeal, if they exist. In this regard, I also note that, as pointed out by the Tribunal, the application for which the appellant sought the requested records is now concluded.
As well, a public interest does not exist where the interests being advanced are essentially private in nature [Orders P-12, P-347, P-1439]. In my opinion, the appellant’s purpose for submitting the request in this case is of a private nature, relating to the now-completed application. Accordingly, I am of the view that the appellant’s request relates to a purely private matter and, for that reason as well, section 23 has no application in the circumstances of this appeal.
To conclude, for all the reasons outlined above, I am not satisfied that a public interest in disclosure of the requested records, if they exist, is established in this case, let alone a “compelling” interest. It is therefore not necessary to weigh such an interest against the purpose of the section 21(1) exemption. The first requirement under section 21(5) is met.
Part two: disclosure of the fact that the record exists (or does not exist)
Under the second requirement for the application of section 21(5), the Tribunal must demonstrate that disclosure of the fact that a record exists (or does not exist) would in itself convey information to the appellant, and the nature of the information conveyed is such that disclosure would constitute an unjustified invasion of personal privacy.
Respecting this second requirement under section 21(5), the appellant submits:
- the Tribunal has not demonstrated that disclosing the existence or non-existence of the record would be an unjustified invasion of personal privacy;
- in assessing this issue, there must be a balancing of interests between access and individual privacy based on paragraphs 42-48 of the Court of Appeal judgment in [Minister of Health and Long-Term Care].
As noted previously, an unjustified invasion of personal privacy can only result from the disclosure of personal information. In my view, the fact that an individual tenant has or has not been the subject of an application to the Tribunal under the TPA is information about an identifiable individual and qualifies as personal information. Disclosing the mere existence or non-existence of records would likely not reveal a person’s specific financial history or activities under section 21(3)(f). Nevertheless, I am satisfied that disclosing their existence or non-existence would be an unjustified invasion of personal privacy in this case. As noted above, applications to the Tribunal are often contentious and disclosure of one’s involvement in such an application would be potentially embarrassing and a source of significant personal distress, supporting the application of section 21(2)(f) relating to “highly sensitive” information. Again, the representations of the affected parties support the application of this factor in the circumstances of this case. As under requirement 1, no factor favouring disclosure is established. As well, for the reasons explained under requirement 1, I am not satisfied that there is a public interest in disclosure of whether or not records exists in this case under section 23. Section 21(4) does not apply. I therefore find that disclosure of the existence or non-existence of records would be an unjustified invasion of personal privacy, meeting requirement 2 under section 21(5).
Before concluding, I would like to refer to the appellant’s argument about balancing and paragraphs 42-48 of the Court of Appeal judgment in Minister of Health and Long-Term Care. The discussion in those paragraphs was part of the Court’s analysis of the constraint on an institution’s exercise of discretion to claim section 21(5) under the second requirement established by the Commissioner in that regard, namely, that such a claim must be based on disclosure of the existence or non-existence of records being, in and of itself, an unjustified invasion of personal privacy. The Court was considering whether that constraint is consistent with the Act’s dual purposes of access to information and the protection of personal privacy. The Court found that it was. This is a totally separate question from the application of section 21(5) in a particular case, which is what is under consideration here. While that may involve a balancing of interests under section 21(2), it may also involve the application of a presumption under section 21(3), in which case the John Doe decision, cited above, indicates that, except for section 21(4) and the public interest override at section 23, no balancing may be done. In this case, I have considered the possible application of the section 21(2) factors as required.
I have found that requirements 1 and 2 under section 21(5) have been met. I therefore find that the Tribunal is entitled to rely on section 21(5) to refuse to confirm or deny the existence or non-existence of responsive records in this case.
ORDER:
I uphold the Tribunal’s decision.
Original Signed By: October 6, 2006