ORDER PO-2695

 

Appeal PA07-388

 

Ministry of Community Safety and Correctional Services

NATURE OF THE APPEAL:

 

The Ministry of Community Safety and Correctional Services (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for a copy of two letters, identified by date, from a named individual. The requester sought access to a specific letter addressed to the Ministry of the Attorney General and a specific letter sent to the Premier.

 

The Ministry located two one-page letters that are responsive to the request and denied access to them pursuant to section 49(b) (personal privacy), taking into consideration the factors listed at sections 21(2)(f) and (h) of the Act.

 

The requester, now the appellant, appealed the Ministry’s decision.  In her appeal letter, the appellant explains that the letters are complaint letters sent by a named individual, suggesting that the appellant has engaged in inappropriate behaviour in the course of her employment. The letters request that an investigation into the matter be conducted.  The appellant further indicated that she requires the information contained in the letters for her lawyer and for a police investigation of this individual.

 

During mediation, the Ministry advised that the responsive records are both letters addressed to the Ministry of the Attorney General and were sent by the named individual on the dates specified by the appellant in her request.  The Ministry advised that given that it had located letters for both the identified dates it did not transfer the portion of the request dealing with a letter addressed to the Premier, to the Premier’s Office.  The appellant advised that she would not pursue the fact that the portion of the request was not transferred as she was mistaken in thinking that the letter was sent to the Premier’s Office rather than the Ministry of the Attorney General.

 

Also during mediation, the mediator notified the author of the letters (the affected party) of the appeal as he might have an interest in the disclosure of the requested records.  The affected party did not respond.

 

As further mediation was not possible, the appeal was transferred to the adjudication stage of the appeal process.

 

I began my inquiry into this appeal by sending a Notice of Inquiry to the Ministry, setting out the facts and issues.  The Ministry responded with representations.  In its representations, the Ministry raised the possible application of the presumption at section 21(3)(b) and it was included in the scope of this appeal.

 

I also sent the Notice of Inquiry to the affected party.  The affected party did not respond to the Notice.

 

I then sent the Notice of Inquiry to the appellant, along with a complete copy of the Ministry’s submissions.  The appellant provided representations in response.

 

RECORDS:

 

The records at issue are two letters sent to the Ministry of the Attorney General on two specified dates.  Both letters are one page in length.

DISCUSSION:

 

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 if 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;

 

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, 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 submits that the records contain the personal information of both the appellant and the affected party. In particular, the Ministry submits that the records contain the types of personal information listed in paragraphs (a), (b), (d), (e), (f), (g) and (h) of the definition of personal information in section 2(1) of the Act.

 

The appellant submits generally that the records do not contain personal information as that term is defined in section 2(1) of the Act because the disclosure of the information would not constitute an unjustified invasion of privacy under section 49(b).  The appellant argues more specifically that the records at issue do not qualify as personal information within the meaning of paragraph (f) (correspondence of a private or confidential nature) of the definition in section 2(1). She states:

 

I contend the disputed letters do not fall under this definition.  [The affected party] sent a complaint detailing possible criminal and ethical [breaches]…The letters sent to the Ministry of the Attorney General were not implicitly or explicitly private.  This complaint does not generate from reliable information.  It is a public response to a public duty.

 

I have considered the representations of the parties and have reviewed the records. I find that they contain the personal information of both the appellant and the affected party.  Specifically, the records contain the name of the appellant, together with other personal information relating to her, within the meaning of paragraph (h) of the definition in section 2(1) of the Act.  The records also contain the name of the affected party along with other personal information relating to him that falls within paragraphs (a), (b), (d), (e), (f), (g), and (h), of the section 2(1) definition.

 

PERSONAL 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 general right of access.

 

In circumstances where a record contains both the personal information of the appellant and another individual, the relevant personal privacy exemption is section 49(b).  Under this provision, the Ministry has the discretion to deny the appellant access to the information if the Ministry determines that the disclosure of the information would constitute an unjustified invasion of another individual’s personal privacy.  However, the Ministry may choose to disclose a record with mixed personal information upon weighing the appellant’s right of access to her own personal information against another individual’s right to protection of their privacy.

Sections 21(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of personal information would constitute an unjustified invasion of personal privacy.  Section 21(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of the personal privacy of another individual.  Where one of the presumptions in section 21(3) applies to the personal information found in a record, the only way such a presumption against disclosure can be overcome is where the personal information falls under section 21(4) or where the “public interest override” at section 23 applies [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].

Section 21(4) refers to certain types of information whose disclosure does not constitute an unjustified invasion of personal privacy.  None of the section 21(4) exceptions appear to apply in the circumstances of this appeal.  Similarly, the “public interest override” in section 23 has not been raised.

If none of the presumptions against disclosure contained in section 21(3) apply, the Ministry must consider the application of the factors listed in section 21(2) of the Act as well as all other considerations which are relevant in the circumstances of the case [Order P-99].

The Ministry submits that the presumption at section 21(3)(b) applies and the factors at section 21(2)(f) and (h) are relevant in the circumstances of this appeal. Those sections read:

21(3)    A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,

(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation.

21(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,

            (f)        the personal information is highly sensitive;

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

Representations

The Ministry submits that the presumption at section 21(3)(b) applies because “the letters are relevant with respect to inquiries undertaken by the OPP [Ontario Provincial Police] in relation to” an identified occurrence.

The Ministry makes more detailed representations on the application of the factors at sections 21(2)(f) and (h):

The Ministry is of the view that the requested letters contain highly sensitive personal information within the meaning of section 21(2)(f) of the [Act].  The Ministry submits that the comments of Adjudicator Donald Hale in Order P-1625, which disposed of appeal issues arising from a … request [under the Act] for access to a copy of a letter, are relevant in the circumstances of this request.  Adjudicator Hale commented:

I find that the statements contained in the record are highly sensitive in nature as they relate directly to the affected persons’ view of what is clearly a difficult situation between the appellant and themselves.

The Ministry is of the view that the affected party would have sent the letters implicitly in confidence to the Attorney General within the meaning of section 21(2)(h) of the [Act].  Members of the public writing to public officials may reasonably expect that such correspondence may be treated as confidential and not for public release.

Should the affected party provide representations in relation to the appeal issue, the Ministry would defer to the affected party’s views in relation to the applicability of sections 21(2)(f) and (h).

The appellant submits that none of the exceptions listed in section 21(4) nor any of the presumptions listed in section 21(3) apply in the circumstances of this appeal.  She also submits that none of the factors under section 21(2) apply.

However, her submissions appear to suggest that the factor at 21(2)(d) (fair determination of rights) might apply.  The appellant takes the position that the Ministry should apply its discretion in section 49(b) to disclose the records at issue because she has a right to access her own personal information.  She submits that because the records contain allegations that are directly related to her person and employment, that she should have a right to respond to them. She also submits that the privacy of the affected party should not be protected and that the information in the letters is not his personal information.  

The appellant also submits that disclosure of the letters would advance public confidence in the operation of the Ministry. She submits:

The letters are allegations of [breaches] of trust.  These allegations were not based in any truth.  The Ministry of the Attorney General received the letters and forwarded them to the OPP.  The OPP investigated the information provided and found no basis for the allegations.  There was no basis for further investigation, the allegations were false.  It is important that the documents in possession of the Ministry be forwarded to me.  The public trust in the institution and my employer is enhanced by the public knowledge that no breaches have been committed by this public servant.

These submissions could be read as implying that the factor at section 21(2)(a) (public scrutiny), might apply.

Analysis and findings

I have reviewed the submissions of the parties and the records at issue and find that disclosure would amount to an unjustified invasion of personal privacy within the meaning of section 49(b).

I accept the submissions of the Ministry and find that the letters were compiled as part of an investigation into a possible violation of law.  In their representations, both the Ministry and the appellant state that the OPP conducted an investigation into the letters and identify that investigation by a specific OPP incident number. The appellant further advises that she was questioned by an OPP officer about the allegations contained in the letters and advised of possible implied threats against her contained in one of the letters.  Accordingly, I accept that the letters were compiled as part of an investigation into a possible violation of law, namely a breach of the Criminal Code .

As I have found that the records were compiled as part of an investigation into a possible violation of law, the disclosure of the personal information pertaining to the affected party would result in a presumed unjustified invasion of his personal privacy in section 21(3)(b).

Although the factors under section 21(2) cannot rebut the presumption of an unjustified invasion of personal privacy in section 21(3)(b) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767], even if that presumption were not found to apply, I find that the factors against the disclosure of the information contained in the records carry greater weight than those that weigh in favour of disclosure.

I agree with the Ministry that the factor in sections 21(2)(f) and (h) carry significant weight.  I find that the information contained in the records may be properly characterized as highly sensitive, within the meaning of section 21(2)(f).  As found by Adjudicator Hale in Order P-1625 in relation to the records at issue in that appeal, in my view, the statements contained in the records in the current appeal are highly sensitive in nature as they relate directly to the affected person’s view of what is clearly a difficult situation between the appellant and himself.

Additionally, based the content of the records, I am satisfied that the information contained in them was provided with an expectation that it would be treated confidentially, within the meaning of section 21(2)(h).  I find this factor to be particularly compelling in the circumstances of this appeal because of the acrimony which appears to exist between these parties, as evidenced by the contents of the letters themselves.

 

I am not satisfied that the disclosure of the personal information contained in the records is relevant to a fair determination of the appellant’s rights within the meaning of section 21(2)(d).  Previous orders have held that the appellant’s right must be a legal one which is related to an existing or contemplated proceeding [Order P-312].  The appellant advises in her representations that there is no pending civil or criminal action relating to the two letters. Accordingly, there is no action or proceeding instituted by the appellant where her rights in relation to those of the affected party are being determined.  Accordingly, I find that the disclosure of the record is not relevant to a fair determination of the appellant’s rights within the meaning of the factor in section 21(2)(d).

Additionally, I do not see how the disclosure of the records at issue is desirable for the purpose of subjecting either the Ministry or the OPP to public scrutiny.  Accordingly, I find that the factor at section 21(2)(a) does not apply.

Balancing the appellant’s right of access to information against the privacy rights of the affected party, I find that the factors favouring privacy protection are far more compelling in the circumstances of this appeal.  As section 21(4) has no application and the appellant has not argued that section 23 applies, I find that, subject to my discussions on the absurd result principle and the Ministry’s exercise of discretion, the records are properly exempt from disclosure under section 49(b).

ABSURD RESULT

Whether or not the factors or circumstances in section 21(2) or the presumptions in section 21(3) apply, where the requester originally supplied the information, or the requester is otherwise aware of it, the information may be found not to be exempt under either section 49(b) or section 21(1), because to find otherwise would be absurd and inconsistent with the purpose of the exemption [Orders M-444, MO-1323].

The absurd result principle has been applied where, for example:

• the requester sought access to his or her own witness statement [Orders M-33, M-451]
• the requester was present when the information was provided to the institution [Orders M-444, P-1414]
• the information is clearly within the requester’s knowledge [Orders MO-1196, PO-1679, MO-1755]

The appellant submits that she is aware of the contents of the letters as they have been disclosed orally to her.  These submissions appear to suggest that the absurd result principle might apply.

 

However, having reviewed the records and considered all of the circumstances of this appeal, I find that this is not a scenario where it would be appropriate to apply the absurd result principle.  In my view, disclosure of the records would be inconsistent with the purpose of the exemption in section 49(b).

Section 49(b) strives to strike a balance between granting access to an individual’s own personal information and protecting the privacy of an individual other than the appellant. In the circumstances of this appeal, disclosure of the records is presumed to amount to an unjustified invasion of privacy of the individual other than the appellant because the records were compiled and are identifiable as part of an investigation into a possible violation of law.

I have carefully reviewed the contents of the records at issue, and have done so with consideration of the context in which they were created and compiled. I find that although the appellant may be aware of the contents of the records there is a particular and inherent sensitivity to the information contained in them which outweighs her right to be provided access to copies of them.  In my view, disclosure would not be consistent with the purpose of the exemption at section 49(b).  Accordingly, I find that the absurd result principle does not apply.

 

EXERCISE OF DISCRETION

 

The section 49(b) exemption is discretionary, and permits an institution to disclose information, despite the fact that it could withhold it.  In situations where an institution has the discretion under the Act to disclose information even though it may qualify for exemption, this office may review the institution’s decision to exercise its discretion to deny access.  I will review the exercise of discretion in this appeal since the Ministry could have disclosed the personal information in the records.

 

An institution must exercise its discretion.  On appeal, the Commissioner, or her delegate, may determine whether the institution failed to do so.  In addition, the Commissioner may find that the institution erred in exercising its discretion where, for example,

 

• it does so in bad faith or for an improper purpose

 

• it takes into account irrelevant considerations

 

• it fails to take into account relevant considerations

 

In either case this office may send the matter back to the institution for an exercise of discretion based on proper considerations [Order MO-1573].  This office may not, however, substitute its own discretion for that of the institution [section 54(2)].

 

 

 

Some of the factors considered relevant in the exercise of discretion are listed below.  However, the individual circumstances of an appeal may render some of these factors irrelevant, and additional unlisted considerations may be relevant [Orders P-344, MO-1573].  Considerations include:

 

• the purposes of the Act, including the principles that

 

○          information should be available to the public

 

○          individuals should have a right of access to their own personal information

 

○          exemptions from the right of access should be limited and specific

 

○          the privacy of individuals should be protected

 

• the wording of the exemption and the interests it seeks to protect

 

• whether the requester is seeking his or her own personal information

 

• whether the requester has a sympathetic or compelling need to receive the information

 

• whether the requester is an individual or an organization

 

• the relationship between the requester and any affected persons

 

• whether disclosure will increase public confidence in the operation of the institution

 

• the nature of the information and the extent to which it is significant and/or sensitive to the institution, the requester or any affected person

 

• the age of the information

 

• the historic practice of the institution with respect to similar information

 

Representations

 

In its submissions, the Ministry explains the reasons for its exercise of discretion to withhold the records under section 49(b) of the Act as follows:

 

The Ministry is cognizant of the appellant’s right of access to personal information records held by the Ministry.  The Ministry took into account that the appellant is an individual rather than an organization.  The Ministry also considered the relationship between the appellant and other individuals referenced in the requested letters.

 

The Ministry considered releasing the exempt letters to the appellant notwithstanding that a discretionary exemption from disclosure applied.

 

The Ministry was mindful of the fact that the responsive records in this particular instance concern highly sensitive matters that were communicated to the Attorney General of Ontario for review and response.

 

The historic practice of the Ministry when responding to personal information requests for records is to release as much information as possible in the circumstances.

 

In its exercise of discretion, the Ministry was satisfied that release of the letters at issue would cause personal distress to identifiable individuals.  The Ministry was also satisfied that the information remaining at issue was compiled and is identifiable as part of an investigation into a possible violation of law.

 

The Ministry considered whether release of the records at issue could generally discourage members of the public from reporting potential violations of law to the government agencies and undermine public confidence in the ability of the OPP to provide policing services.  The Ministry in its exercise of discretion took into consideration the fact that confidentiality of information in some instances is necessary for public safety and protection.

 

The Ministry ultimately came to the conclusion in its exercise of discretion that the release of the letters in the circumstances of the appellant’s request was not appropriate.

 

The appellant submits that the Ministry should have exercised its discretion to disclose the records to her.  She submits:

 

All individuals have right to access their own personal information.  In the case before the review committee, the evidence suggests that the affected person wrote two letters detailing [breaches] of trust within the appellant’s employment.  She was advised of the allegations.  There was a criminal investigation as a result of these letters.  No criminal or civil action has risen from the allegations.  The affected person was influenced to write these letters.  The affected person was utilized as a conduit to affect the reputation of a party in ongoing estate litigation.

 

 

 

Analysis and findings

 

With careful consideration of the circumstances of this appeal, including the contents of the records and in view of the representations provided, I am satisfied that the Ministry exercised its discretion under section 49(b) of the Act properly.

 

I agree with the Ministry that the nature and sensitivity of the information at issue are relevant factors to be considered in the exercise of discretion.  In my view, the sensitivity of the information reasonably led to the conclusion that the privacy rights of the affected party are sufficiently significant to outweigh the access rights of the appellant under section 49(b).  In the circumstances, I find that the Ministry has properly exercised its discretion to withhold the records at issue.

 

Accordingly, I uphold the exercise of discretion by the Ministry and find that the records are exempt under section 49(b).

 

ORDER:

 

I uphold the Ministry’s decision to deny access to the records.

 

 

 

 

 

 

 

Original Signed By:                                                                             July 17, 2008                          

Catherine Corban