ORDER MO-3800

Appeal MA16-367

City of Vaughan

July 10, 2019

Summary: The appellant submitted a request under the Act to the city for information relating to claims and the resulting payments involving an insurance company. The city located responsive records and granted the appellant partial access to them. The city withheld portions of the records under the mandatory personal privacy exemption in section 14(1) of the Act. The city also charged the appellant a fee for processing the request. The appellant appealed the city’s access decision and fee. The appellant also claimed that additional responsive records ought to exist and that the city ought to obtain records from the insurance company in response to her request, thereby raising the issues of reasonable search and custody or control. In this order, the adjudicator upholds the city’s decision. The adjudicator finds that the information withheld from disclosure contains the personal information of identifiable individuals and is exempt from disclosure under section 14(1). The adjudicator also upholds the city’s revised fee. Finally, the adjudicator dismisses the other issues raised by the appellant.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 2(1) (definition of personal information), 14(1), 14(3)(a) and (f), and 45(1); Regulation 823, section 6.

OVERVIEW:

[1]  The appellant submitted a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) with the City of Vaughan (the city) for the following:

Invoices, cheques, (front + back) authorizations for cheques, correspondence (emails, letters, etc.) for all monies (payments and money received) to/from [a named insurance company] to/from City of Vaughan and all third party payments --- from Jan. 2009 to current.

[2]  After receiving the request and notifying the insurance company as an affected party, the city issued an interim access decision and a fee estimate to the appellant. The city subsequently issued a revised fee estimate of $335.

[3]  The appellant paid the fee and the city issued a final access decision. In that decision, the city granted the appellant partial access to the responsive records. The city withheld portions of the records under the personal privacy exemption in section 14(1)  of the Act .

[4]  The appellant appealed the city’s decision.

[5]  During mediation, the appellant claimed that the city’s fee was excessive. The appellant took the position that the search time is excessive because all the records should be stored in a single location, which would result in a minimal search time. In addition, the appellant claimed that the city’s preparation time of one minute a page to be excessive.

[6]  In addition, the appellant took issue with the city’s section 14(1) claim. The appellant stated that when there is an insurance settlement with the city, the terms of settlement, the amount of payment and the individuals named are public information. Consequently, the appellant claimed that the information withheld under section 14(1) should be disclosed.

[7]  Finally, the appellant raised the issue of reasonable search, claiming that additional responsive records ought to exist. The appellant claimed that records relating to the insurance company named in her request should exist, such as legal invoices and insurance payment records. The appellant took the position that if these records are not in the possession of the city, then the city should obtain them from the insurance company.

[8]  The city took the position that the fee was appropriately calculated in accordance with the Act and its regulations. The city maintained its section 14(1) exemption claim. Finally, the city stated that it conducted a comprehensive search for responsive records and that, if additional records exist with the named insurance company, they are not within the custody or control of the city.

[9]  The mediator contacted the insurance company, which confirmed that its records are not under the custody or control of the city.

[10]  Mediation did not resolve the appeal and the file was transferred to the adjudication stage of the appeal process, where an adjudicator may conduct an inquiry. The adjudicator who was originally assigned to the appeal began the inquiry by inviting the city to make representations in response to a Notice of Inquiry. The city submitted representations.

[11]  The appeal was then transferred to me to complete the inquiry. I reviewed the city’s representations and decided to seek representations in response from the appellant. I shared the city’s representations with the appellant in accordance with Practice Direction Number 7 of the IPC’s Code of Procedure. The appellant did not submit representations.

[12]  In the discussion that follows, I uphold the city’s decision and dismiss the appeal.

RECORDS:

[13]  There are over 2500 pages of records, consisting of invoices, correspondence, cheques, and claims billing lists for the years 2009 to 2016. Of these 2500 pages, the city withheld portions of 83 pages under section 14(1)  of the Act .

ISSUES:

1. Should the city’s fee be upheld?
2. Do the records contain personal information as defined in section 2(1) and, if so, to whom does it relate?
3. Does the mandatory exemption at section 14(1) apply to the personal information at issue?
4. Did the city conduct a reasonable search for records? Is the city required to seek and obtain responsive records from the insurance company?

DISCUSSION:

Issue A: Should the city’s fee be upheld?

[14]  Under section 45(1)  of the Act , the city is required to charge fees for processing access requests according to the following framework:

A head shall require the person who makes a request for access to a record to pay fees in the amounts prescribed by the regulations for,

(a) the costs of every hour of manual search required to locate a record;

(b) the costs of preparing the record for disclosure;

(c) computer and other costs incurred in locating, retrieving, processing and copying a record;

(d) shipping costs;

(e) any other costs incurred in responding to a request for access to a record.

Other specific and relevant provisions regarding fees for records that do not contain the personal information of the appellant (as is the case here) are found in section 6 of Regulation 823:

6. The following are the fees that shall be charged for the purposes of subsection 45(1)  of the Act  for access to a record:

1. For photocopies and computer printouts, 20 cents per page.

2. For records provided on CD-ROMs, $10 for each CD-ROM.

3. For manually searching a record, $7.50 for each 15 minutes spent by any person.

4. For preparing a record or disclosure, including severing a part of the record, $7.50 for each 15 minutes spent by any person.

[15]  The IPC may review an institution’s fee and determine whether it complies with the fee provisions in the Act and Regulation 823.

[16]  The city’s revised fee estimate was set out in its final access decision as follows:

Search – per year
60 min. each year @ $7.50/15 minutes
2009	$30
2010	$30
2011	$30
2012	$30
2013	$30
2014	$30
2015	$30
2016 (30 minutes @ $7.50/15 minutes)	$15
Preparation – per year @ 1 min/page
2009 (approx. 50 pages to be redacted)	$25
50 min. @ $7.50/15 min.
2010 (approx. 30 pages to be redacted)	$15
2011 (approx. 15 pages to be redacted)	$7.50
2012 (approx. 30 pages to be redacted)	$15
2013 (approx. 30 pages to be redacted)	$15
2014 (approx. 15 pages to be redacted)	$7.50
2015 (approx. 15 pages to be redacted)	$7.50
2016 (approx. 15 pages to be redacted)	$7.50
1 CD @ $10/each	$10
ESTIMATED TOTAL	$335
Deposit Paid	$167.50
Remaining Balance	$167.50

Representations

[17]  The city submits that its revised fee estimate (reproduced above) was based on a combination of actual work completed by the city staff and initially included an estimate of preparation work based on a representative sample of records. The city states it completed the preparation work in response to the request after it issued the revised fee estimate.

[18]  The city submits that its Access and Privacy staff sent search memos to several responsive departments upon receipt of the appellant’s request. The city submits that these departments searched both electronic and paper records for responsive records. The city states that the records were pulled from off-site records storage, on-site record storage, email inboxes, electronic records on active city servers, on-site server back-up storage, and active electronic databases.

[19]  Since the appellant’s request includes records from 2009, the city states that boxes had to be recalled from records storage/archives and manually searched for responsive records, which included invoices, cheques (front and back), correspondence and payment authorizations.

[20]  For electronic records, the city submits it searched email inboxes, the financial database program, and electronic files held on city servers to compile the responsive records.

[21]  The city submits that the search time from multiple city staff resulted in a total of 7.5 hours, for the search and compilation of roughly 2500 pages of records. The city confirms these records were scanned to a DVD.

[22]  The city submits it presented the appellant with an initial fee estimate, then a revised fee estimate, breaking down the search fees by records per year to allow her to make an informed decision regarding whether to pay the fee and proceed with the request.

[23]  The city submits that its final search estimate reflects the actual work done by its staff in several departments. The city submits that the search fees are reasonable and directly reflect the time city staff spent conducting a search for both paper and electronic records dating back to 2009.

[24]  With regard to its preparation time, the city states that the fee estimate reflects the city’s estimate that approximately 200 pages would require redactions under section 14(1). The city calculated this estimate based on a total redaction time of one minute per page, which the city notes is “well below” the two minutes per page generally allowed by the IPC. [1]

[25]  After the revised fee estimate was issued, the city submits that its Access and Privacy staff completed the redactions and preparation of the records. The city states that multiple severances were made by staff to 83 pages. Because the total number of pages requiring redactions was lower than originally estimated, the city states the total amount for “preparation” should be $41.50, not the originally quoted $100. The city is prepared to provide the appellant a partial refund to correct this discrepancy.

[26]  Referring to section 6(2) of Regulation 823, the city states it charged the appellant $10.00 for the DVD containing the records in accordance with section 45(1) (c) of the Act .

[27]  The city confirmed that there are no shipping costs associated with this request nor were there any additional costs associated with responding to the request that were not originally identified.

[28]  The appellant was invited to make submissions in response to the city’s representations. She did not.

Analysis and Findings

[29]  Based on my review of the city’s representations and the final fee, minus the overcharge for the preparation fee, I am prepared to uphold the city’s fee.

[30]  I uphold the city’s $10.00 charge for the DVD containing electronic copies of the records. The city charged this amount in accordance with section 6 of Regulation 823.

[31]  Section 6 of Regulation 823 also provides for other required fees for access to records. Under that part of the Regulation, the city is required under section 45(1)(a) to charge the appellant a fee for “the costs of every hour of manual search required to locate a record” at a rate of $7.50 for each 15 minutes spent and without regard for whether or not access is to be granted. I reviewed the city’s representations, which state that the search fee was charged based on the actual work done. In addition, I have taken into consideration the broad nature of the request and the fact that records were requested relating to a lengthy time period. Given these circumstances, I am prepared to uphold the city’s $225.00 fee for 7.5 hours of search time.

[32]  During mediation, the appellant claimed that the search time is excessive because all the records should be stored in a single location, which would result in a minimal search time. The appellant did not expand on this claim in written submissions. Regardless, while appellant may have certain beliefs regarding the manner in which the city stores or should store its records, these do not reflect the city’s actual practice, which resulted in the search fee charged. Moreover, I do not find the fee to be excessive such that it warrants a reduction on the basis that the city should better organize its record holdings. Based on my review of the city’s representations, I uphold the city’s search fee of $225.00 for 7.5 hours of search time.

[33]  With regard to the preparation time the city is now charging under section 45(1) (b) of the Act , I note the city claims one minute per page for severing 83 pages of responsive records. Even though the records required multiple severances, I accept the city’s approach of charging one minute per page. The city based its original preparation fee on 200 pages at one minute per page. However, it now confirms that only 83 pages were severed. Using the city’s formula, I find that the city’s revised $41.50 charge would cover the preparation of 83 pages of records. Accordingly, I uphold this part of the fee estimate. I will order the city to refund the overpaid amount of $58.50 to the appellant.

[34]  In conclusion, I uphold the city’s revised fee, which consists of a $10 charge for a CD-ROM, $225 for 7.5 hours of search time and $41.50 for the preparation of records.

Issue B: Do the records contain personal information as defined in section 2(1) and, if so, to whom does it relate?

[35]  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. The term personal information is defined in section 2(1)  of the Act . The relevant portions of section 2(1) read as follows,

“personal information” means recorded information about an identifiable individual, including,

(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;

(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.

The list of personal information under section 2(1) is not exhaustive. Therefore, information that does not fall under paragraphs (a) to (h) of section 2(1) may still qualify as personal information. [2]

[36]  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. [3]

[37]  Even if the 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. [4]

[38]  To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [5]

[39]  The city submits that the information at issue is inherently personal in nature because the names of claimants directly relate to personal losses they suffered. In addition, the city submits that the records contain settlement amounts that claimants received in a personal capacity, not in relation to a business or professional function.

[40]  The city acknowledges that the settlement amounts do not constitute personal information and has already disclosed them to the appellant. However, the city submits that the names of the claimants constitute personal information when read in conjunction with the other information contained in the records. The city submits that the individuals’ names would accurately identify the individuals if they are disclosed in full to the appellant.

[41]  Based on my review of the records, I am satisfied that the redacted names of individual claimants constitutes these individuals’ personal information within the meaning of section 2(1)  of the Act . The names of these individuals, in conjunction with the dates and locations of the incidents, general details regarding the claim, and the payment amount, constitute their personal information under both paragraph (h) of the definition of personal information as well as the introductory wording in section 2(1). The city confirms that these individuals made these claims in their personal capacities and not in relation to their official or business capacities. In the absence of any evidence to the contrary, I find that the information at issue would, if disclosed, reveal something of a personal nature about these individuals. Therefore, I find that the information at issue constitutes the personal information of identifiable individuals within the meaning of section 2(1)  of the Act . I will now consider whether the exemption in section 14(1) applies to this personal information.

Issue C: Does the mandatory exemption at section 14(1) apply to the personal information at issue?

[42]  Where a requester seeks personal information of other individuals, section 14(1) prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) to (f) in section 14(1) applies. In the circumstances, it appears that the only exception that could apply is section 14(1)(f), which allows disclosure if it would not be an unjustified invasion of personal privacy. Based on my review, none of the exceptions in section 14(4) apply to the records at issue.

[43]  The factors and presumptions in sections 14(2) and (3) help in determining whether disclosure would or would not be an unjustified invasion of personal privacy under section 14(1)(f).

[44]  If any of paragraphs (a) to (h) of section 14(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy under section 14(1). Once a presumed unjustified invasion of personal privacy is established under section 14(3), it cannot be rebutted by one or more factors or circumstances under section 14(2). [6]

[45]  If no section 14(3) presumption applies and no exceptions in section 14(4) apply, section 14(2) lists various factors that may be relevant in determining whether disclosure of the personal information at issue would constitute an unjustified invasion of personal privacy. [7] In order to find that disclosure does not constitute an unjustified invasion of personal privacy, one or more factors and/or circumstances favouring disclosure in section 14(2) must be present. In the absence of such a finding, the exception in section 14(1)(f) is not established and the mandatory section 14(1) exemption applies. [8]

Representations

[46]  The city submits that sections 14(3)(a) and (f) apply to the personal information that remains at issue. These sections read,

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;

[47]  The city submits that previous orders [9] have found that an “insured’s medical service history” is part of the individual’s personal medical history, including their name, condition, and the insurance amounts. The city submits the same can be said about restitutions made in claims for a medical injuries such as a slip and fall. The city states that the records contain information such as insurance policy numbers, the status of a claim, the claim number, date of loss, third party information (name, type of loss/injury, description, location of loss), third party claim payment amount, expense payment, total payment, recovered to date, and amount due.

[48]  The city acknowledges that not every claim involves a medical component. Nonetheless, the city submits that releasing the names of the individuals who did receive a settlement in relation to a medical concern such as a slip and fall would constitute a presumed unjustified invasion of privacy under section 14(3)(a). The city submits that the disclosure of the individual claimants’ names, in conjunction with the information already disclosed, would serve to confirm the nature and severity of injuries and/or damages incurred by these individuals.

[49]  With regard to section 14(3)(f), the city submits that the names of the individuals who made financial claims against the city constitute their personal information when presented in conjunction with information about loss or injury sustained by the complainant, date of the loss, event location and any financial settlement amount they may have received.

[50]  Finally, the city submits that none of the section 14(2) factors apply.

[51]  The appellant did not make submissions in response to the Notice of Inquiry. During mediation, she claimed that when there is an insurance settlement with the city, the terms of settlement, the amount of payment and the individuals named are public information.

Analysis and Findings

[52]  The personal information that remains at issue consists of the names of individual claimants. Based on my review of the records, I am not satisfied that the presumptions in sections 14(3)(a) or (f) apply to the personal information that remains at issue. While the records contain a generic description of the loss claimed by the individuals, I am not satisfied that these general descriptions (i.e. “fall”) would relate more than tangentially to a medical diagnosis, condition or treatment as required by section 14(3)(a). The records do not contain further details regarding these individuals’ medical history, diagnosis, condition or treatment. As such, I am not satisfied that the disclosure of these individuals’ names would constitute a presumed unjustified invasion of their personal privacy under section 14(3)(a).

[53]  In addition, I am not satisfied that the names of these individuals and the information contained in the records would describe these individuals’ finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness, as required by section 14(3)(f). While the payment of the claim to these individuals could be considered a “financial activity”, in the absence of further information, I am not satisfied that the names of these individuals would fit within the ambit of section 14(3)(f). Therefore, I find that none of the presumptions in section 14(3)  of the Act  apply to the names at issue.

[54]  In any case, however, I am satisfied that the names of these individuals is exempt from disclosure under section 14(1)  of the Act . I reviewed the factors and circumstances favouring disclosure in section 14(2) and find that none apply. There is no evidence to suggest that the disclosure of the names of individual claimants would subject the activities of the city to public scrutiny, as required by section 14(2)(a). The city has already disclosed the claim amounts, dates, and generic descriptions of the incidents. It is unclear how the names of the individual claimants would provide additional scrutiny to the city’s activities.

[55]  In addition, there is no evidence to suggest that the disclosure of these individuals’ names would promote public health and safety. [10] There is similarly no evidence to suggest that the disclosure of these names will promote informed choices in the purchase of goods and services, as required by section 14(2)(c). Finally, there is no evidence to suggest that the personal information at issue is relevant to a fair determination of the appellant’s rights.

[56]  Therefore, I find that none of the factors or circumstances favouring disclosure in section 14(2) is present in this case. Having concluded that none of the factors favouring disclosure in section 14(2) apply, I find that the exception in section 14(1)(f) is not established. Consequently, in view of the fact that section 14(1) is a mandatory exemption, I find that the personal information that remains at issue is exempt from disclosure under section 14(1)  of the Act .

Issue D: Did the city conduct a reasonable search for records? Is the city required to seek and obtain responsive records from the insurance company?

[57]  The appellant raised two issues during mediation: custody or control and reasonable search. Specifically, the appellant claimed that additional responsive records relating to the insurance company ought to exist, such as legal invoices and insurance payment records. The appellant took the position that if these records are not in the city’s possession, the city should obtain them from the insurance company. During the inquiry, the appellant declined to make submissions on either of these issues. I did not seek the city’s representations on these issues.

Reasonable Search

[58]  Where a requester claims that additional records exist beyond those identified by the institution, the issue to be decided is whether the institution has conducted a reasonable search for records as required by section 17  of the Act . [11] Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, the requester must still provide a reasonable basis for concluding that such records exist. [12]

[59]  I invited the appellant to make submissions in response to a Notice of Inquiry and specifically asked her to provide me with evidence to support her contention that additional responsive records ought to exist. She did not do so. Therefore, I find that the appellant has not identified any basis for concluding that additional responsive records should exist.

[60]  In any case, I reviewed the records the city located in response to the appellant’s request as well as its representations on fee (reproduced above in Issue A). The city described the searches conducted in response to the appellant’s request, including the departments searched and the types of files and storage areas searched. Based on that review, I find that the searches were conducted by employees experienced in the subject matter of the request and that these individuals expended reasonable efforts to locate responsive records. Accordingly, and in the absence of any representations supporting her position that the city’s search was not reasonable, I find that the city conducted a reasonable search for responsive records.

Custody and Control

[61]  During mediation, the appellant took the position that the city had an obligation to obtain records that would be responsive to her request from an insurance company. The city takes the position that the records with the insurance company are not in the city’s custody or under its control. During the inquiry, I invited the appellant to identify the types of additional responsive records she believes to exist and address whether the records with the insurance company are within the city’s custody or control. The appellant did not make any submissions.

[62]  Section 4(1) confirms that the Act  only applies to records that are in the custody or under the control of an institution. Based on my review of the circumstances, I find that I have not been provided with evidence to show that there are records within the city’s control that are in the insurance company’s custody. Furthermore, the insurance company is not an institution, which means that the Act  cannot apply to records in its custody or under its control.

[63]  The courts and the IPC have applied a broad and liberal approach to the custody or control question, [13] and this office has developed a non-exhaustive list of factors to consider in determining whether or not a record is in the custody or control of an institution. [14] The factors that this office has found to be relevant include,

• Whether the record was created by an officer or employee of the institution; [15]
• The use that the creator intended to make of the record; [16]
• Whether the institution has a statutory power of duty to carry out the activity that resulted in the creation of the record; [17]
• Whether the activity in question is a core, central or basic function of the institution; [18]
• Whether the content of the record relates to the institution’s mandate and functions; [19]
• Whether the institution has a right to possession of the record or to regulate its content, use and disposal; [20]
• The extent to which the institution has relied upon the record; [21] and
• The customary practice of the institution and similar institution in relation to possession or control of the records of this nature, in similar circumstances. [22]

[64]  While there may be records in the insurance company’s possession that may be responsive to the appellant’s request, there is no evidence before me to suggest that these records are under the city’s control. As noted above, the appellant did not identify the types of records she believes the insurance company possesses that would be under the control of the city. During mediation, the appellant claimed that the insurance company would have records such as legal invoices and insurance payment records that would be responsive to her request. However, without any specific details regarding the types of records the insurance company would have custody of that relate to the city, I cannot find that an insurance company’s own legal invoices or insurance payment records are under the control of the city. There is no evidence to suggest that the city would rely upon these records nor is there any evidence that these records, which were created and maintained by the insurance company, would relate to the city’s mandate and functions. Finally, there is no evidence to suggest that the city has a right to posses the insurance company’s own legal invoices and insurance payment records or to regulate their content, use and disposal. Upon review of the appellant’s request and claims made during mediation, I find that the city does not have custody or control over the insurance company’s records.

[65]  Therefore, based on the information provided by the appellant, I find that the city is not required to obtain further responsive records from the insurance company.

ORDER:

1. I uphold the city’s fee of $276.50 and order it to refund the appellant $58.50.
2. I uphold the city’s severances under section 14(1)  of the Act .
3. I dismiss the other issues raised by the appellant.

Original signed by		July 10, 2019
Justine Wai
Adjudicator