Information and Privacy Commissioner, Ontario, Canada

Commissaire à l’information et à la protection de la vie privée, Ontario, Canada

FINAL RECONSIDERATION ORDER PO-3064-R

Appeals PA09-327-2, PA09-328-2 and PA09-398

University of Western Ontario

March 22, 2012

Summary: This is a final reconsideration of Order PO-2967 following a previous interim reconsideration decision issued by way of a letter. This final reconsideration order summarizes some of the determinations made in the interim reconsideration decision and addresses the matters that remained outstanding. In this final reconsideration order, the adjudicator maintains the previous determination that a portion of one of the records remaining at issue is not exempt under section 49(b), but reverses his previous finding that a portion of another record remaining at issue did not qualify for exemption under section 49(b) of the Act. The University of Western Ontario is ordered to disclose the non-exempt information to the appellant.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, ss. 2(1), 2(3), 21(2)(a), (d), (e), (f) and (h), 49(b).

Orders and Investigation Reports Considered: P-1014.

OVERVIEW:

[1] The University of Western Ontario (the university) requested a reconsideration and partial stay of Order PO-2967. I requested representations from the university and the appellant on the reconsideration request and rendered an interim reconsideration decision by way of a letter dated November 25, 2011 (interim reconsideration decision).

[2] In my interim reconsideration decision:

• • I did not allow the university’s request to reconsider my findings on the application of Section 20 (danger to health or safety) of the Freedom of Information and Protection of Privacy Act  (the Act  or FIPPA );
• • I did not allow the university’s request to reconsider the determination that the university was not permitted to apply the discretionary exemption at section 49(a) (discretion to refuse requester’s own information), in conjunction with sections 14(1)(a), (b), (d) (law enforcement) and 14(2)(c) (exposure to civil liability), to a portion of Record 25 and all of Record 26 at issue in appeal PA09-327-2;
• • I did not allow the university’s request to reconsider my finding that a portion of Record 12 at issue in Appeal PA09-328-2 qualified as a law enforcement report under section 14(2)(a) (law enforcement report) of FIPPA;
• • I allowed the university’s reconsideration request and reversed my finding in Order PO-2967 that the content of Records 6 (page 725), 7, 8, 17, 18, 19, 23 (page 855), 24, 25, 26, 27 (page 961), 30, 31, 32, 33, 34 and 35 at issue in Appeal PA09-398 did not qualify for exemption under section 49 (a) of the Act  , in conjunction with section 19(c). I upheld the university’s decision that this information qualifies for exemption under section 49 (a) of the Act  in conjunction with section 19(c);
• • I allowed the university’s request to reconsider my determination with respect to the application of section 49(b) (personal privacy) of the Act  to a portion of Record 1 (pages 8 and 9) at issue in Appeal PA09-328-2 and a portion of Record 4 (pages 711 and 712) at issue in Appeal PA09-398 on the basis that I failed to notify certain identifiable individuals whose personal information was alleged to be contained therein. To facilitate notification, I requested that the university provide me with current address and contact information for these individuals.

[3] In this final reconsideration decision, for the reasons that follow:

• - I find that section 49(b) (personal privacy) of the Act  does not apply to exempt a portion of Record 1 (pages 8 and 9) at issue in Appeal PA09-328-2.
• - I find that a notified individual’s name and email address in the portion of Record 4 (on page 711) remaining at issue in Appeal PA09-398 qualifies for exemption under section 49 (b) of the Act . I uphold the university’s decision that this information qualifies for exemption under section 49(b) of FIPPA and order that this information not be disclosed to the appellant.

DISCUSSION:

Reconsidering an order

[4] The IPC’s Code of Procedure (the Code) applies to appeals under the Act . Section 18.01 of the Code states:

The IPC may reconsider an order or other decision where it is established that there is:

(a) a fundamental defect in the adjudication process;

(b) some other jurisdictional defect in the decision; or

(c) a clerical error, accidental error or omission or other similar error in the decision.

[5] In addition, section 18.02 of the Code states:

The IPC will not reconsider a decision simply on the basis that new evidence is provided, whether or not that evidence was available at the time of the decision.

[6] Section 18.04 provides that a reconsideration request shall be made in writing to the individual who made the decision in question. The request must be received by the IPC:

(a) where the decision specifies that an action or actions must be taken within a particular time period or periods, before the first specified date or time period has passed; or

(b) where decision does not require any action within any specified time period or periods, within 21 days after the date of the decision.

Notification and the exchange of representations

[7] As set out above, in my interim reconsideration decision, the university was asked to provide me with current address and contact information for the individuals whose personal information it alleged to be contained in a portion of Record 1 (pages 8 and 9) at issue in Appeal PA09-328-2 and a portion of Record 4 (pages 711 and 712) at issue in Appeal PA09-398, in order to facilitate notification.

[8] The university responded by providing me with the addresses of two of the three named individuals whose personal information it alleged was at issue. One of the addresses provided was that of a Campus Police Officer. The university advised that it did not have a current address for the third individual, who was also a Campus Police Officer.

[9] In the course of the reconsideration, the university notified this office that it believed that its staff had made an error by not initially highlighting some information on pages 711 and 712 of Record 4 that it wished to be withheld when it originally sent the responsive records to this office. In the highlighted version of the responsive records that I reviewed before issuing Order PO-2967 those portions were, in fact, indicated to be at issue. Furthermore, in the course of preparing this final reconsideration order, I realized that the name that the university referenced as appearing on page 712 of Record 4 was, in fact, ordered to be withheld in Order PO-2967. This should have been indicated in the highlighted records that were sent to the university along with Order PO-2967. Accordingly, this leaves only a name and email address on page 711 of Record 4 as remaining subject to the university’s reconsideration request.

[10] I then sent the two individuals whose addresses were provided a Supplementary Notice of Inquiry asking for representations on whether the information at issue met the definition of personal information under FIPPA and whether it qualified for exemption under section 49(b). One of the notified individuals advised that they decided not to file any representations. The other notified individual provided representations in response to the notice. This individual requested that their representations not be shared with the appellant due to confidentiality concerns.

[11] I then sent a Supplementary Notice of Inquiry to the appellant. To address the confidentiality concerns of the individual who provided representations, I summarized their submissions in the Supplementary Notice of Inquiry.

[12] Although invited to do so, the appellant did not provide any representations in response to the Supplementary Notice of Inquiry.

Do the records contain personal information?

[13] In order to determine which sections of the Act  may apply, it is necessary to decide whether a 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 if 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;

[14] Sections 2(3) and (4) also relate to the definition of personal information. These sections state:

(3) Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

(4) For greater certainty, subsection (3) applies even if an individual carries out business, professional or official responsibilities from their dwelling and the contact information for the individual relates to that dwelling.

[15] 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.¹

[16] 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.²

The portion of Record 1 (pages 8 and 9) at issue in Appeal PA09-328-2

[17] The university submits in its reconsideration representations that a portion of Record 1 (pages 8 and 9) at issue in Appeal PA09-328-2 expresses the belief/opinion of Campus Police Officers and should not have been disclosed because it qualifies as those individuals’ personal information. As set out above, I notified one of the Campus Police Officer’s with a view to seeking his submissions on this issue. He advised that he decided not to file any representations.

[18] I find that the names of the Campus Police Officers that are found at pages 8 and 9 of Record 1 identifies them in their professional capacity and does not qualify as their personal information in accordance with section 2(3)  of the Act .

[19] In Order PO-2967, I set out the definition of personal information in FIPPA (also reproduced above) which includes at paragraph 2(e) the personal opinions or views of the individual except where they relate to another individual and 2(g) the views or opinions of another individual about the individual. Accordingly, in the circumstances of this appeal, the beliefs or opinions expressed by the Campus Police Officers in their official capacity about the appellant or the other identifiable individual that is also the subject of that belief or opinion, qualifies as their personal information, rather than the personal information of the Campus Police Officer.

The portion of Record 4 (page 711) at issue in Appeal PA09-398

[20] I am satisfied in the circumstances of this case, especially in light of the information that has already been disclosed to the appellant, that disclosing the notified individual’s name and email address that is contained in the portion of Record 4 remaining at issue in Appeal PA09-398 would reveal something of a personal nature about them. Accordingly, the information qualifies as the personal information of this individual.

Section 47(1)

[21] 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 exceptions to this general right of access, including section 49(b). Section 49(b) introduces a balancing principle that must be applied by institutions where a record contains the personal information of both the requester and another individual.

[22] In determining whether the exemption in section 49(b) applies, sections 21(1) , (2) , (3)  and (4)  of the Act  provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of another individual’s personal privacy. Section 21(2) provides some criteria for the university to consider in making this determination;³ section 21(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy; and section 21(4) refers to certain types of information whose disclosure does not constitute an unjustified invasion of personal privacy.

Section 49(b)

[23] Section 49(b) states:

A head may refuse to disclose to the individual to whom the information relates personal information,

Where the disclosure would constitute an unjustified invasion of another individual’s personal privacy

The portion of Record 1 (pages 8 and 9) at issue in Appeal PA09-328-2

[24] I have found above that the portion of Record 1 (pages 8 and 9) at issue in Appeal PA09-328-2 contains only the personal information of the appellant and another identifiable individual, and not of the Campus Police Officers. As noted at the end of the background section of Order PO-2967, the other identifiable individual consented to the release of any personal information in the records that relates to him. Accordingly, disclosure of this information would not result in an unjustified invasion of another individual’s personal privacy under section 49(b). As a result, my original determination that this information does not qualify for exemption under section 49 (b) of the Act  remains unchanged.

The portion of Record 4 (page 711) at issue in Appeal PA09-398

[25] The notified individual whose personal information was alleged to be contained in the portion of Record 4 (page 711) at issue in Appeal PA09-398 submits that section 49(b) applies to the information and their representations refer to the factors in sections 21(2)(e), (f) and (h).

[26] The notified individual submits that the name and email address of persons corresponding with a named university administrator has been withheld and that the notified individual’s name and email address should be similarly protected.

[27] The appellant provided no representations in response to the notified individual’s submissions.

Section 21(2)

[28] Section 21(2)  of the Act  reads, in part:

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 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; and

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

Factors weighing against disclosure

Section 21(2)(e)

[29] In order for this section to apply, the evidence must demonstrate that the damage or harm envisioned by the clause is present or foreseeable, and that this damage or harm would be unfair to the individual involved.

[30] Based on the confidential submissions provided by the notified individual, in light of the information that has already been disclosed to the appellant, and for the same reasons set out in Order PO-2967, in my view this factor applies and weighs in favour of a finding that the disclosure of the name and email address would constitute an unjustified invasion of personal privacy based on these circumstances.

Section 21(2)(f)

[31] In order to bring personal information within the ambit of section 21(2)(f) (highly sensitive), I must be satisfied by the evidence that disclosure of the information would result in a reasonable expectation of 'significant' personal distress to the subject individual."⁴

[32] Based on the confidential submissions provided by the notified individual, in light of the information that has already been disclosed to the appellant, and for the same reasons set out in Order PO-2967, in my view this factor applies and weighs in favour of a finding that the disclosure of the name and email address would constitute an unjustified invasion of personal privacy based on these circumstances.

Section 21(2)(h)

[33] This factor applies if both the individual supplying the information and the recipient had an expectation that the information would be treated confidentially, and that expectation is reasonable in the circumstances. Thus, section 21(2)(h) requires an objective assessment of the reasonableness of any confidentiality expectation.⁵

[34] Based on the confidential submissions provided by the notified individual and for the same reasons set out in Order PO-2967, in my view this factor applies and weighs in favour of a finding that the disclosure of the name and email address would constitute an unjustified invasion of personal privacy based on these circumstances.

Factors and considerations weighing in favour of disclosure

[35] As I wrote in Order PO-2967, in the circumstances of the matter there are two considerations in section 21(2) which may be considered to be relevant to the disclosure of the name and email address: section 21(2)(a) (public scrutiny) and section 21(2)(d) (fair determination of rights). Furthermore, an additional unlisted circumstance should be considered: disclosure will ensure public confidence in the integrity of an institution.⁶

21(2)(a): public scrutiny

[36] As I set out in Order PO-2967, the objective of section 21(2) (a) of the Act  is to ensure an appropriate degree of scrutiny of government and its agencies by the public.

[37] In Order P-1014, former Senior Adjudicator John Higgins concluded that public policy supported proper disclosure in proceedings such as the workplace harassment investigation at the centre of that appeal, and that the support was grounded in a desire to promote adherence to the principles of natural justice. Former Senior Adjudicator Higgins agreed with the appellant in that matter that an appropriate degree of disclosure to the parties involved in such investigations was a matter of considerable importance. However, in the facts of that appeal, the former Senior Adjudicator concluded that the interest of a party to a given proceeding in disclosure of information about that proceeding is essentially a private one. As the appellant in that matter wished to review the records for himself to try to assure himself that justice was done in this particular investigation, in which he was personally involved, the factor in section 21(2)(a) did not apply.

[38] Although the records in the current appeal are not related to an investigation into a complaint of workplace harassment, in Order PO-2967, I determined that the analysis of former Senior Adjudicator Higgins provided some guidance in the matter before me.

[39] I have been presented with no evidence to suggest that the appellant’s motives in seeking access to the name and email address of the notified individual are more than private in nature to ensure that the university’s investigation into the matters involving the appellant were conducted in an appropriate manner. As in Order P-1014, this is a private interest, and therefore, section 21(2)(a) is not a relevant consideration. Additionally, in my view, the subject matter of the portion of the record remaining at issue does not suggest a public scrutiny interest.⁷ Accordingly, I find that the factor in section 21(2)(a) does not apply to the name and email address.

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

[40] With respect to the consideration in section 21(2)(d), it is intended to apply to personal information which is relevant to a fair determination of rights affecting the person who made the request. In order for this consideration to apply, the appellant must establish that:

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;

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

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

the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing.⁸

[41] Although the appellant made no specific representations on the application of section 21(2)(d), in his correspondence with this office he indicates that he has commenced certain proceedings against the university and that he is in need of whatever records he can secure as soon as possible.

[42] As set out in Order PO-2967, the university stated that the appellant received full particulars of the allegations upon which the senior administrator relied in making his findings against the appellant in the Code of Student Conduct proceedings. Furthermore, the university submitted that the appellant received copies of all of the email messages that were the subject of the complaints under the Code of Student Conduct and was given a full opportunity to dispute those allegations both before the senior administrator and on appeal before the university Discipline Appeal Committee. Also, as noted in Order PO-2967, the appellant was already in possession of certain email exchanges, which he attached to his representations. Furthermore, the appellant received disclosure of additional information as a result of my initial and interim reconsideration order.

[43] Finally, the appellant has not provided sufficient evidence about how the name or email address of the notified individual will have some bearing on or is significant to the determination of the court proceeding or how the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing.

[44] Accordingly, I find that the factor at section 21(2)(a) does not apply to the name and email address of the notified individual.

Public confidence in the integrity of the institution

[45] In Order P-1014, where the appellant was seeking access to all of the information gathered by the investigator of a workplace harassment complaint, as well as all the statements given by people interviewed in the investigation, former Senior Adjudicator Higgins stated:

In my view, the comments made by the appellant, quoted above in my discussion of section 21(2)(a), also raise the possible application of this factor. In my discussion of section 21(2)(a), I found that the appellant’s interest in scrutiny of the institution’s activities in this case was a private one, and I did not apply section 21(2)(a). However, it is my view that the degree of disclosure to the parties in WDHP [Workplace Discrimination and Harassment Prevention] investigations does have an influence on public confidence in institutions conducting such investigations.

If it appears that these investigations are secret trials which prejudice the rights of those accused, public confidence will be eroded. Failure to disclose information which was considered by the investigator in arriving at his decision would clearly prejudice the rights of individuals accused of harassment. Accordingly, I find that this factor applies to information in the records which is directly related to the subject matter of the investigation.

[46] I agree with the reasoning outlined by former Senior Adjudicator Higgins. However, in my view, in light of the information that has already been disclosed to the appellant, I am not satisfied that disclosure of the notified individual’s name and email address would have any role with respect to the unlisted factor described as public confidence in the integrity of an institution.

[47] Accordingly, I find that this unlisted circumstance does not apply to the name and email address of the notified individual.

Conclusion

[48] In summary, I have concluded that, of the section 21(2) factors and circumstances reviewed above, only sections 21(2)(e), (f) and (h) are applicable, and that there are no factors or circumstances that favour disclosure. As a result, I find that disclosure of the notified individual’s name and email address would constitute an unjustified invasion of the personal privacy of the notified individual. Accordingly, I find that this information is exempt from disclosure under section 49 (b) of the Act .

ORDER:

1. 1. I find that section 49(b) (personal privacy) of the Act  does not apply to a portion of Record 1 (pages 8 and 9) at issue in Appeal PA09-328-2. Accordingly, that information is to be disclosed to the appellant.
2. 2. I find that the notified individual’s name and email address in the portion of Record 4 (on page 711) remaining at issue in Appeal PA09-398 qualifies for exemption under section 49 (b) of the Act . Accordingly, that information is not to be disclosed to the appellant.
3. 3. The information that is the subject of provision 1 of this final reconsideration order is to be disclosed to the appellant by sending it to him by April 30, 2012 but not before April 24, 2012.

Original signed by: Steven Faughnan Adjudicator

March 22, 2012

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¹ Orders P-257, P-427, P-1412, P-1621, R-980015, MO-1550-F and PO-2225.

² Orders P-1409, R-980015, PO-2225 and MO-2344.

³ The list of factors under section 21(2) is not exhaustive. The institution must also consider any circumstances that are relevant, even if they are not listed under section 21(2) [Order P-99].

⁴ Orders PO-2518, PO-2617, MO-2262 and MO-2344.

⁵ Order PO-1670.

⁶ Order P-237.

⁷ See Order PO-2905 where Assistant Commissioner Brian Beamish found that the subject matter of a record need not have been publicly called into question as a condition precedent for the factor in section 21(2)(a) of FIPPA to apply, but rather that this fact would be one of several considerations leading to its application.

⁸ 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.).