Access to Information Orders
Decision Information
• Reimbursed telephone numbers, third party names for expense claims, CCRA forms.
• Section 2(1) - Records contain personal information.
• Section 14(1) - (personal privacy) upheld.
• Decision of GRCA to withhold information upheld.
Decision Content
NATURE OF THE APPEAL:
The Grand River Conservation Authority (the GRCA) received the following request under the Municipal Freedom of Information and Protection of Privacy Act (the Act):
1) GRCA’s Policies for board members in effect from 2003 to present time, on:
• use of expense account and expense claims including alcohol;
• mileage claims;
• use of corporate cell phones.
2) Budget line item(s) for all Board and Chair’s expenditures 2003-2006.
3) For any board member who had annual claims greater than $2000:
• All mileage claims for 2003-2006 to date;
• All expense account use for 2003-2006 to date;
• All expense claims for 2003-2006 to date;
• All expense receipts, both sides of the receipt, for 2003-2006 to date;
• All travel expenses for 2003-2006 to date;
• All GRCA cell phone and land line phone bills for 2003-2006 to date;
• All applications to GRCA since January 1, 2000;
• All Conditions of Employment and Terms of Employment 2000-2006 to date.
2003 Budget with detail schedules
2004 Budget with detail schedules
2005 Budget with detail schedules
The GRCA located responsive records and notified four persons whose personal information may be contained in the records, pursuant to section 21 of the Act (the affected persons). Three of these persons did not object to the release of their information. One person objected to the release of his personal information (affected person #1). The GRCA then granted partial access to the records and applied the mandatory exemption found in section 14(1) (personal privacy) of the Act to deny access to those portions of the records that contained credit card information, third party names, telephone numbers and home addresses.
The requester, now the appellant, appealed the GRCA’s denial of access to portions of the records (with the exception of credit card numbers, transaction or authorization numbers, card expiry dates or “card type” information and home addresses).
After the appeal was filed, the GRCA located five additional responsive records, namely, “Declaration of Conditions of Employment” Canada Customs and Revenue Agency (CCRA) forms. It denied access to these forms under section 14(1) of the Act, as well.
As mediation was not successful in resolving the issues in this appeal, the file was transferred to me to conduct the inquiry. I sent a Notice of Inquiry, setting out the facts and issues in this appeal, to the GRCA and two board members whose personal information may be contained in the records (affected persons #1 and #2), initially. I received representations from the GRCA and affected person #1. I sent a copy of these representations to the appellant, along with a Notice of Inquiry. Portions of affected person #1’s representations were withheld due to confidentiality concerns. I received representations from the appellant. I shared the non-confidential portions of the appellant’s and affected person #1’s representations with the GRCA and sought representations in reply. I received reply representations from the GRCA.
RECORDS:
The appellant is not interested in receiving credit card numbers, transaction or authorization numbers, card expiry dates or “card type” information and home addresses. Therefore, the records that contain only these severances are not at issue. I have also removed from the Index of Records those records where the GRCA has severed the information on the front of a record that reveals what was written on the back of a record. Any severed information written on the back of a record remains at issue.
The appellant is also not interested in receiving the severed information concerning the expenses that were not paid by the GRCA. According to its initial and reply representations, the GRCA has been reimbursed for, or did not pay for, the expenses for two individuals in Records 04-02 and 04-04, the complete details of the reimbursed long distance phone calls of affected person #1 in Records 04-113, 04-115, 04-220 to 04-230 and 05-141, and the cost of one meal in Record 6-26. Therefore, the severed information concerning these reimbursed expenses is not at issue.
Therefore, at issue are the severed third party names and telephone numbers for calls paid for by the GRCA, along with the information in five “Declaration of Conditions of Employment” CCRA forms. The GRCA has claimed that the mandatory exemption in section 14(1) applies to all of the severed information.
I have listed in the attached Appendix to this Order the records and severances that remain at issue.
DISCUSSION:
BACKGROUND
According to its website, the GRCA is:
…a corporate body established to enable municipalities to jointly undertake water and natural resource management on a watershed basis…
The Grand River watershed is located in Southern Ontario. The watershed consists of all the land that drains into the Grand River through tributary creeks and rivers.
Because a watershed is an ecosystem with natural borders, it includes and crosses many township and county boundaries...
The GRCA was established under section 3(1) of the Conservation Authorities Act (CAA). The “Powers” of “conservation authorities” established under the CAA are set out in section 21(1), and include such powers that may involve dealing with individuals in their personal capacity or with private property, as follows:
For the purposes of accomplishing its objects, an authority has power,
(b) for any purpose necessary to any project under consideration or undertaken by the authority, to enter into and upon any land and survey and take levels of it and make such borings or sink such trial pits as the authority considers necessary;
(c) to acquire by purchase, lease or otherwise and to expropriate any land that it may require, and, …to sell, lease or otherwise dispose of land so acquired;
(e) to purchase or acquire any personal property that it may require and sell or otherwise deal therewith;
(f) to enter into agreements for the purchase of materials, employment of labour and other purposes as may be necessary for the due carrying out of any project;
(g) to enter into agreements with owners of private lands to facilitate the due carrying out of any project;
(m) to use lands owned or controlled by the authority for park or other recreational purposes, and to erect, or permit to be erected, buildings, booths and facilities for such purposes and to make charges for admission thereto and the use thereof;
(n) to collaborate and enter into agreements with ministries and agencies of government, municipal councils and local boards and other organizations;
(o) to plant and produce trees on Crown lands with the consent of the Minister, and on other lands with the consent of the owner, for any purpose;
(p) to cause research to be done;
(q) generally to do all such acts as are necessary for the due carrying out of any project.
PERSONAL INFORMATION
In order to determine which sections of the Act may apply, it is necessary to decide whether the records contain “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 names if it appears with other personal information relating to the individual or where the disclosure of the names 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].
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.)].
There are three types of information severed from the records at issue in this appeal:
- Telephone numbers;
- Third party names; and
- CCRA forms.
I will deal with each type of information separately. All of the records concern affected person #1, except for one hotel bill for affected person #2. The appellant does not suggest that the records contain his personal information, and I find that they do not.
Telephone Numbers
The appellant is seeking the numbers for telephone calls made by affected person #1 from his business cell phone, business landline and from a hotel. He is also seeking the telephone number called by affected person #2 from a hotel. The records at issue are two hotel bills, numerous cell phone bills and the yearly extension detail reports for affected person #1 and one hotel bill for affected person #2.
The GRCA submits that the records contain home telephone numbers in accordance with paragraph (d) of the definition of “personal information” in section 2(1).
It states that:
GRCA Phone (landline) - GRCA staff and/or board members do not receive a listing of the calls they make using the GRCA phone and therefore are not asked to identify personal calls.
Cell Phone - Often, there were no costs associated with the personal call and therefore no reimbursement to GRCA would have been made. As a result, these calls were not identified as personal calls on the cell phone records and we have no reasonable way to segregate them from the business calls.
With the reverse telephone lookup feature now available on the Web, it is possible to identify the names and addresses assigned to these numbers, thus revealing personal information for those people who were personal contacts, not business contacts. In many cases, these individuals would not know that the board member calling them was using a business phone and that their personal identity could be released to the public. Since the telephone numbers and address are personal information as per Section 2(d) of the Act, this information should not be released to the appellant.
Affected person #1’s representations are similar to the GRCA on this issue. He is no longer a board member with the GRCA. The telephone records span a four year period from 2003 to 2006. Affected person #1 states that the telephone calls include confidential telephone calls from constituents. He submits that:
As a volunteer for the Grand River Conservation Authority (GRCA) I feel it is my duty to protect the privacy of all third parties including the constituents of the watershed. I, therefore, request that all telephone numbers and names; that could identify third parties, remain stricken from the documents sent to the requestor…
I incurred all expenses personally and, upon submission and approval of the CAO [Chief Administrative Officer] and the Secretary-Treasurer, those expenses were then reimbursed. Subsequently, all expenses were reviewed and approved by the GRCA board. Many of my activities, meetings and telephone calls ...dealt with sensitive issues…
Some telephone calls and expenses incurred for offsite meetings have been to ensure privacy because of ongoing legal, financial, labour and personnel issues and could potentially be inflamed or compromised by public release of that information.
The appellant does not disagree that the records contain personal and business telephone numbers. The appellant indicates that he is seeking disclosure of all of the phone numbers in order to verify which calls were made by the affected persons to personal numbers and which calls were made to business numbers.
Analysis/Findings
Former Assistant Commissioner Tom Mitchinson in Order PO-2225, sets out the following two step process applicable to a determination of whether information is “about” an individual in a business rather than a personal capacity, and therefore does not constitute personal information:
...the first question to ask in a case such as this is: “in what context [does the information] of the individuals appear”? Is it a context that is inherently personal, or is it one such as a business, professional or official government context that is removed from the personal sphere? ...
The analysis does not end here. I must go on to ask: “is there something about the particular information at issue that, if disclosed, would reveal something of a personal nature about the individual”? Even if the information appears in a business context, would its disclosure reveal something that is inherently personal in nature?
I have considered the findings of Assistant Commissioner Brian Beamish in Order PO-2536 who applied this test to cell phone and hotel phone bills. In that Order, he stated that:
This reasoning [in Order PO-2225] applies equally to the business expense claims for cell phone calls and calls made from hotels. The cell phone records and hotel receipts reveal the phone numbers that were telephoned by executives. The claim is made that the telephone calls were made for the purpose of doing business, and therefore the telephone numbers appear in an exclusively business or professional context. Equally, in these circumstances, the disclosure of the telephone numbers would not reveal information of a personal nature about these individuals. The only information that would be revealed by the disclosure of the telephone number is that these individuals were involved in a business relationship with the affected party. This is not information of a personal nature. Accordingly, I find that the telephone numbers contained in the cell phone records and hotel receipts are not personal information.
I have reviewed the telephone bills at issue. With respect to the hotel bill, the call that was made by affected person #2 was made to a home telephone number and I find that the severed information in this record qualifies as personal information in accordance with paragraph (d) of the definition of “personal information” in section 2(1).
I agree with the GRCA that it is impossible to differentiate which of the telephone calls of affected person #1 were made to or from personal numbers and which calls were made to or from business numbers. As noted above, it is clearly within the mandate of the GRCA to deal with private citizens. In the absence of evidence to the contrary, I find that disclosure of the telephone numbers may reveal information of a personal nature about the individuals who called or were called by affected person #1. Therefore, I find that all of the telephone numbers qualify as personal information in accordance with paragraph (d) of the definition of “personal information” in section 2(1).
Third Party Names
The GRCA submits that the records contain a large number of third party names which are both personal and business contacts of affected person #1 and that in many cases the contact information for these third parties is not known. These individuals have not consented to the release of their names, dates, time and places on which they met with the board member. It also submits that:
[The names on records] 05-80, 06-25 are those of personal contacts of the board member, not business contacts. The disclosure of these names would indicate a personal relationship of the board member. This is the personal information of the board member and the other individual.
Affected person #1 objects to the release of all third party names. He submits that the third party names include the local constituents that contacted him in his capacity as a board member with the GRCA.
The appellant submits that:
Third party names …are not “personal information”. …Order PO-1798 …discusses the distinction between a person acting in a personal capacity and in a business capacity. The [title of affected person #1] of a taxpayer funded institution should not be entertaining anyone, let alone private individuals at the expense of that public institution. Any expenses … that are paid for, or that are reimbursed by the GRCA must only be of a business nature such as with a member municipality’s chief executive officer attending in his or her professional capacity or the reasonable cost of meals when away from home on business of the GRCA. The names cannot be considered personal information and cannot constitute an invasion of personal privacy.
Analysis/Findings
The records that contain third party names are included in one hotel receipt and numerous Expense Report Statements and supporting receipts. The expenses for these third parties were paid for by the GRCA.
I have considered Order PO-1798 referred to by the appellant. In that Order, based on his review of the records and the representations, former Assistant Commissioner Mitchinson was able to discern which third party names were personal contacts and which were business contacts of the affected person. I have also considered Order PO-2435, which involved a request submitted to the Ministry of Health and Long-Term Care (the Ministry) under the provincial Act for access to all records relating to the province’s e-Physician Project, including the Smart Systems for Health Agency. In that case, the Ministry sought to exempt the names of individual consultants together with their per diem rates and contract ceiling that relate to them, under the provincial Act equivalent of section 14(1) of the Act. In Order PO-2435, addressing the distinction between personal and professional information and the application of the personal privacy exemption in section 21(1) of the provincial Act, Assistant Commissioner Beamish stated:
In determining whether information relating to a named individual is “personal information”, the appropriate approach is to look at the capacity in which the individual is acting and the context in which their names appear…
In applying Assistant Commissioner Mitchinson’s analysis [in Order PO-2225] to the current appeal, the context in which the names, per diems and ceiling amounts appear is not inherently personal, but is one that relates exclusively to the professional responsibilities and activities of these individuals. As evidenced by the contents of the records themselves, each of these individuals is participating as consultants in a professional business capacity. For example, on the face of Record 2, each individual is listed as a consultant. Further, as is clear from the wording of the [associated business cases] that form part of Record 3, the selected individuals are being chosen for their professional, rather than personal, qualifications and experience.
Similar to the business context present in Order PO-2225, the professional context in which the individuals’ names appear here removes them from the personal sphere. In addition, there is nothing about the names, per diem or ceiling amounts that, if disclosed, would reveal something of a personal nature about the various consultants.
The circumstances in the current appeal are distinguishable from these previous cases. I have reviewed the contents of the records at issue and the confidential and non-confidential portions of the parties’ representations. I find that I have insufficient evidence to determine which third party names in the records relate “exclusively to the professional responsibilities and activities of these individuals”. Since the evidence does not establish that the third party names in the records are “business contacts” in accordance with the findings of Assistant Commissioner Beamish above, I find that they are personal information.
CCRA forms
The GRCA submits that the sole purpose of the “Declaration of Conditions of Employment” form is to collect a tax by Revenue Canada and it forms part of the board member’s income tax return. The GRCA also advised that any terms or conditions associated with a board member’s business can be found in the by-laws that were already provided to the appellant.
Affected person #1 did not provide specific representations concerning the disclosure of the CCRA forms.
The appellant provided confidential representations concerning the disclosure of these forms. His representations do not assist me in determining the issue of whether the forms contain personal information.
Analysis/Findings
I agree with the GRCA that the CCRA forms are affected person #1’s personal information in accordance with paragraph (b) of the definition as it contains information relating to financial transactions in which he has been involved.
PERSONAL PRIVACY
I have found above that the following information in the records pertaining to affected person #1 is personal information concerning affected person #1 and other identifiable individuals, and are comprised of:
- Telephone numbers;
- Third party names; and,
- CCRA forms.
I have also found that the home telephone number in the one record concerning affected person #2 is also personal information.
Where a requester seeks personal information of another individual, section 14(1) prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) to (f) of section 14(1) applies.
If the information fits within any of paragraphs (a) to (f) of section 14(1), it is not exempt from disclosure under section 14.
In the circumstances, it appears that the only exception that could apply is section 14(1)(f) which reads:
A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,
if the disclosure does not constitute an unjustified invasion of personal privacy.
The factors and presumptions in sections 14(2), (3) and (4) help in determining whether disclosure would or would not be an unjustified invasion of personal privacy under section 14(1)(f).
Telephone Numbers and Third Party Names
The GRCA submits that:
With the reverse telephone lookup feature now available on the Web, it is possible to identify the names and addresses assigned to these numbers, thus revealing personal information for those people who were personal contacts, not business contacts. In many cases, these individuals would not know that the board member calling them was using a business phone and that their personal identity could be released to the public.
Affected party #1 submits that:
Again, I am most uncomfortable with the release of that information and any potential legal liability that I might encounter as a result. Many of my activities, meetings and telephone calls, dealt with sensitive issues and should be exempt, as per sections 7(1), 9, 10, 11(a), (c), (d), (e), (f) and 12, of the Municipal Freedom of Information and Protection of Privacy Act.
What reasonable and positive purpose could be served by the release of the additionally requested telephone numbers and names? In my opinion, the only purpose would be to invade the privacy of those individuals that may have called me for any number of confidential reasons. Some telephone calls and expenses incurred for offsite meetings have been to ensure privacy because of ongoing legal, financial, labour and personnel issues and could potentially be inflamed or compromised by public release of that information. A large number of third parties were involved, therefore, researching each and every number and name would be an extraordinary amount of work for staff…
[M]y greatest concern is for the reputation and privacy of the Grand River Conservation Authority and any third parties that could potentially be affected by this request.
My other concern is that a potential invasion of privacy, of this nature, would also make it most difficult for both the GRCA and the Grand River Conservation Foundation to recruit other volunteers to these boards. Both organizations rely heavily on the time and commitment of watershed community volunteers…
The appellant submits that:
It needs to be clearly indicated that telephone numbers requested to be released … are those from telephone calls so one can be assured that the calls were in fact for business related to the GRCA…
The public have the right to know that their money being spent on legitimate purposes and not for personal benefit. If the [board member] took a personal relationship with him, the charges for the personal relationship should have been paid personally by the [him] and not reimbursed by the GRCA…
[Affected person #1] was not a volunteer during the period covered by the FOI request. He was paid an annual salary in excess of [#] per year. This does not include mileage, expensive meals, entertainment expenses, booze and trips to Australia, China, Europe and Vancouver which are apparent in the information released as a result of the FOI request. A copy of the Ontario Municipal Board order [#] provided by the GRCA ordered “A salary of [#] per annum to the [Title] of the Authority in addition to regular allowance and actual costs in the conduct of the business of the Authority.” …
There is a difference between personal contacts and business contacts. Any phone numbers and any third party names associated with expenses that were paid by the GRCA or reimbursed by the GRCA must be considered a business contact because they were paid by the publicly funded institution. They cannot be considered personal information and release cannot constitute an invasion of personal privacy. The business of the publicly funded and tax supported GRCA must spend tax dollars with respect. Contrary to the assertion, there is nothing private about the GRCA’s member municipalities as they are public knowledge. The GRCA is a public institution.
Analysis/Findings
The GRCA has not claimed that the presumptions in section 14(3) apply to the telephone numbers and the third party names. Section 14(2) lists various factors that may be relevant in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy under section 14(1) [Order P-239].
Section 14(2) reads:
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 institution 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;
(g) the personal information is unlikely to be accurate or reliable;
(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.
The list of factors under section 14(2) is not exhaustive. The institution must also consider any circumstances that are relevant, even if they are not listed under section 14(2) [Order P-99].
The records at issue are the telephone numbers of individuals who were called by or who called affected person #1 and the third parties whose expenses were paid for by the GRCA. There is also one record for affected person #2 containing a home telephone number. Disclosure of the records at issue may reveal personal information about the affected persons and other identifiable individuals.
Based on the representations of the parties I find that the factors in paragraphs (f) and (h) of section 14(2) are applicable to the records in issue. Concerning the factor in paragraph (f), to be considered highly sensitive, it must be found that disclosure of the personal information could reasonably be expected to cause significant personal distress to the subject individual [Order PO-2518].
Many of the expenses incurred by affected person #1 for offsite meetings with third parties were done so in order to ensure privacy. Privacy was necessary because affected person #1 was required to deal with ongoing legal, financial, labour and personnel issues concerning the GRCA. Similarly, many of the telephone calls were made to or by individuals in confidence and dealt with sensitive matters. Because of this, I find that the factor in paragraph (f), namely, that the personal information is highly sensitive, applies, as does the factor in paragraph (h), concerning the confidentiality of this information.
Given the sensitive nature of the issues discussed by affected person #1 during these telephone calls and at these off-site meetings, it is reasonable to conclude that the individuals who participated in these calls and meetings did so with the expectation that their personal information would be kept in confidence. I make this finding also with respect to the home telephone number in the record of affected person #2. Therefore, I give the factors in paragraphs (f) and (h), which weigh in favour of privacy protection, significant weight.
The appellant is relying on the factor in paragraph (a) of section 14(2), that is disclosure is desirable for the purpose of subjecting the activities of the GRCA to public scrutiny, however, I am not satisfied that releasing the information in the records at issue will accomplish this purpose. The expenses of affected person #1, which were paid for by the GRCA, were vetted through several levels of bureaucracy before payment. Payment was subject to the approval of the CAO and the Secretary-Treasurer, before reimbursement. Subsequently, all expenses were reviewed and approved by the GRCA board. There is also evidence that affected person #1 reimbursed the GRCA for personal expenses. All of this indicates that the checks and balances concerning the reimbursement of expenses by the GRCA effectively ensure that the GRCA resources are being used appropriately. Consequently, I give the factor in paragraph (a), which weighs in favour of disclosure of the information, minimal weight.
I have carefully considered the matter and I find on balance that the factors favouring privacy protection at sections 14(2)(f) and (h) clearly outweigh any factors favouring disclosure in this case. Disclosure of the third party names and telephone numbers at issue would constitute an unjustified invasion of the personal privacy of the affected persons and other identifiable individuals.
Therefore, I find that the third party names and the telephone numbers in the records are exempt from disclosure by reason of section 14(1) of the Act.
CCRA Forms
The GRCA claims that the presumption in section 14(3)(e) applies to the CCRA forms. This section reads:
A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,
was obtained on a tax return or gathered for the purpose of collecting a tax;
I find that the CCRA forms contain personal information gathered for the purpose of collecting tax and section 14(3)(e) applies to the information in these forms. According to the CCRA website, CCRA forms must be completed by employers in order for their employees to deduct employment expenses from their income on their income tax forms.
As paragraph (e) of section 14(3) applies, disclosure of the information in the CCRA forms is presumed to be an unjustified invasion of personal privacy under section 14. Once established, a presumed unjustified invasion of personal privacy under section 14(3) can only be overcome if section 14(4) or the “public interest override” at section 16 applies [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767]. Section 14(4) is inapplicable to the information at issue and the appellant has not raised the application of section 16 to these records.
This presumed unjustified invasion of personal privacy under section 14(3), cannot be rebutted by one or more factors or circumstances under section 14(2) [John Doe, cited above].
Therefore, I find that the CCRA forms are exempt from disclosure by reason of section 14(1) of the Act.
ORDER:
1. I uphold the GRCA’s decision.
Original signed by: October 31, 2007