ORDER PO-4325

Appeal PA19-00537

York University

December 7, 2022

Summary: A former student sought access to meeting minutes under the Freedom of Information and Protection of Privacy Act  from a university. The university granted the appellant partial access to responsive records claiming that disclosure of the withheld information would constitute an unjustified invasion of personal privacy under section 21(1). The student appealed the university’s decision and asserted that additional records should exist.

In this order, the adjudicator upholds the university’s decision to withhold portions of the records under the personal privacy exemption under section 21(1). She also finds that the university conducted a reasonable search for responsive records. The appeal is dismissed.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, sections 2(1)  (definition of personal information), 21(1), 21(2)(f) and (i).

OVERVIEW:

[1] This order resolves an appeal by a former student (the appellant) seeking access to records from York University (the university). The appellant submitted a request to the university under the Freedom of Information and Protection of Privacy Act , for the following records:

1. President’s Advisory Committee on Human Rights (PACHR) meetings from Sept 1, 2016 to present.
2. Enable York (formerly Access York) “Notes of Meetings” meeting minutes from Sept 1, 2016 to present.
3. Clinical Psychology Area Meeting minutes, from September 1, 2016 to present.
4. Psychology Faculty Meeting minutes, from September 1, 2016 to present.

[2] The university issued a decision letter to the appellant granting her partial access to records. The university claimed that the withheld portions qualified for exemption under section 18(1) (economic and other interests) and 21(1) (personal privacy).

[3] The appellant appealed the university’s decision to the Information and Privacy Commissioner of Ontario (IPC) and a mediator was assigned to explore settlement with the parties.

[4] Mediation did not resolve the appeal but the appellant confirmed that she was not seeking access to the information withheld under section 18(1). The appellant also confirmed that she was not pursuing access to records responsive to parts 1 and 2 of her request.

[5] However, the appellant asserted that she believed that additional records should exist responsive to parts 3 and 4 of her request. In addition, the appellant continued to pursue access to the information the university withheld pursuant to the personal privacy exemption under section 21(1). The withheld information is contained in the Clinical Psychology Area Meeting minutes (clinical meeting meetings) the university disclosed in response to part 3 of the appellant’s request.

[6] No further mediation was possible and the file was transferred to the adjudication stage of the appeals process in which an adjudicator may conduct an inquiry. I commenced my inquiry by inviting the representations of the university and the appellant. The parties submitted representations in response, including reply and sur-reply representations. The parties consented to their representations being shared with one another in accordance with the IPC’s Code of Procedure and Practice Direction 7.

[7] In this order, I uphold the university’s decision to withhold the personal information at issue under the personal privacy exemption under section 21(1). I also find that the university conducted a reasonable search for responsive records.

RECORDS:

[8] The information remaining at issue in the clinical meeting minutes is described in the chart below: [1]

Records at Issue

Record 20	• 3rd bullet under the heading “Internship Applications” on page 1 • 1st bullet under the heading “GTA Practica” on page 1
Record 22	• 5th bullet under the heading “Breadth Requirements” on page 2 • 3rd and 4th bullets under the heading “Accreditation Update” on page 2
Record 24	• 3rd bullet under the heading “GTA Practicum Notification Day” on page 2
Record 25	• 1st, 2nd and 5th bullets under the heading “DCT Report” on page 1
Record 32	• 3rd, 10th and 11th bullets under the heading “DCT Update” on age 1
Record 33	• 3rd bullet under the heading “Teaching Allocations” on page 1

ISSUES:

1. What is the scope of the request for records? Which records are responsive to the request? Did the university conduct a reasonable search for responsive records?
2. Do the withheld records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
3. Does the mandatory personal privacy exemption at section 21(1) apply to the personal information at issue?

DISCUSSION:

A. What is the scope of the request for records? Which records are responsive to the request? Did the university conduct a reasonable search for responsive records?

[9] The university takes the position that the meeting minutes it disclosed, in part, to the appellant respond to part 3 and part 4. The appellant argues that the university narrowed the scope of her request to exclude records that would reasonably relate to parts 3 and 4 of her request. In addition, the appellant argues that university’s search for responsive records was not reasonable.

What is the scope of the request for records? Which records are responsive to the request?

[10] The appellant argues that records responsive to parts 3 and 4 of her request should include records, in addition to “meeting minutes”, created at meetings attended by faculty such as Graduate Faculty meetings, Clinical Area Retreats, Year-end meetings and other meetings attended by faculty. The university says that it considered the appellant’s request to “amend” the scope of the request during mediation. But took the position that “the proposed amendment went far beyond the scope of the original request and invited the appellant to submit a new access request.”

[11] The university takes the position that the meeting minutes it located reasonably respond to the appellant’s request in part 3 of her request for clinical area meeting minutes. The university says that clinical area meetings are typically held on the last Monday of every month from September to April and that minutes are taken by administrative support staff during these meetings and “then approved the following month.” [2] The university also says that these meetings are attended by student representatives and thus the “progress of individual students are not discussed.” The university submits that “area-wide issues, degree qualifications, teaching allocations, department/area hires, etc.” are discussed at the clinical area meetings.

[12] The appellant takes the position that her request for clinical area minutes encompass any records created at the year-end meetings.

[13] The background of this appeal is that the appellant received a “Clinical-Area Year- End Student Evaluation” in which it was communicated to her that a decision had been made to end her placement in the clinical program. The appellant provided a copy of the student evaluation she received and highlighted the portion which said that the decision was made after “extensive discussion” at the year-end meeting and in “subsequent meetings with the Director of the Psychology Graduate Program.” The appellant offers this evidence in support of her position that additional records than what had been located by the university should exist given the seriousness of the decision along with the fact that she was told that extensive discussions had taken place.

[14] The university says that “meeting minutes” are not created for annual student progress meetings, also called “Year-End Meetings.” The university says that these meetings are typically held in May or June and that “[a]dministrative support staff do not attend the meetings and minutes are not taken.” The university says that the discussions at these meetings “revolve around individual students’ progress” and that the discussions at these meetings “form the content of the year-end letter provided to each student.”

[15] The appellant also argues that the university narrowed the scope of her request for records which would respond to part 4 of the request. The appellant says that her request “could only logically refer to the records of meetings of Psychology teaching staff at the University.” In support of her position, the appellant spent a considerable amount of time explaining the use of certain terms, such as “faculty” and argues that her requests should not be limited to when the university typically holds certain meetings.

[16] The appellant also submits that the university could have done more during the request stage to seek clarification from her, including providing her an explanation of the different types of meetings that take place and states:

[t]he university did not make any effort to assist [me] in reformulating [my] request. Instead, it took an unduly narrow view of the request and unilaterally responded to this instead. It is clear from the request that [I am] seeking minutes from all instances in which the members of the Clinical Psychology Area met.

[17] Finally, the appellant argues that a liberal interpretation requires more than mere reliance on the literal words of the request and states:

The University has not adopted a liberal interpretation of this request. Finding that there is meaningful distinction between meetings that regularly take place and an annual meeting that is characterized as a “retreat” is antithetical to the spirit of the Act and the liberal interpretation of requests that is required; the university’s interpretation is the exact sort of “excessively literal interpretation” rejected in Order PO-3480.

Decision and analysis

[18] The appellant appears to take the position that a liberal interpretation of her request would render that any notes clinical faculty staff took at any meeting including retreat, department, graduate, faculty and year-end meetings.

[19] In support of her position, the appellant cites Order PO-3480. In that order, the IPC used the term “excessively literal interpretation” to describe an institution’s decision to remove certain locations from the scope of request for records relating to a lake.

[20] Section 24 of the Act imposes certain obligations on requesters and institutions when submitting and responding to requests for access to records. This section states, in part:

1. A person seeking access to a record shall,
1. make a request in writing to the institution that the person believes has custody or control of the record, and specify that the request is being made under this Act;
2. provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record;

. . .

2. If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

[21] I agree with the reasoning in Order PO-3480. In fact, the IPC has consistently held that institutions should interpret requests generously, in order to best serve the purpose and spirit of the Act. In addition, if a request is unclear, the institution should interpret it broadly rather than restrictively. [3]

[22] However, in this case, I do not agree with the appellant. In my view, the wording of the request is clear.

[23] Parts 3 and 4 of the request sought access to “meeting minutes” which constitute the official record of a meeting. The university in its representations indicate that an administrative staff member is designated to take minutes at specified meetings at which the minutes of the prior meeting are adopted. Once adopted the minutes become the official record of the meeting.

[24] Having regard to the above, I find that the appellant by using the term “meeting minutes” in her request sought a specific type of document and it was appropriate for the university to respond literally to the request in the circumstances of this appeal.

[25] In my view, any notes or notations taken by individual attendees of a meeting are not reasonably related to a request for “meeting minutes.” The appellant takes the position that any notes or notations taken by faculty members who attended various meetings in the time period set out in her request are responsive. I disagree and find that if these types of records were created by faculty members they are not reasonably related to her request for meeting minutes which would constitute the official record of the meeting.

[26] I agree with the university that the appellant should file a new request if she wants to pursue access to records that are not “meeting minutes.” The appellant argues that the university should have offered her help to reformulate her request. However, I am satisfied that the request sufficiently described the records which would respond to the request and the university was not required to clarify the scope of the appellant.

[27] I will go on to discuss the appellant’s argument that the university should have located additional records responsive to her request.

Did the university conduct a reasonable search for responsive records?

[28] The appellant takes the position that “additional records” exist in “both electronic and paper” form.

[29] If a requester claims that additional records exist beyond those found by the institution, the issue is whether the institution has conducted a reasonable search for records as required by section 24 of the Act. [4] If the IPC is satisfied that the search carried out was reasonable in the circumstances, it will uphold the institution’s decision. Otherwise, it may order the institution to conduct another search for records.

[30] Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, they still must provide a reasonable basis for concluding that such records exist. [5]

[31] A reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request makes a reasonable effort to locate records that are reasonably related to the request. [6] The IPC will order a further search if the institution does not provide enough evidence to show that it has made a reasonable effort to identify and locate all of the responsive records within its custody or control. [7]

[32] The Act does not require the institution to prove with certainty that further records do not exist. However, the institution must provide enough evidence to show that it has made a reasonable effort to identify and locate responsive records; [8] that is, records that are "reasonably related” to the request. [9]

Representations of the parties

[33] The university takes the position that it conducted a reasonable search for responsive records and says that:

• the search was coordinated by the Information, Privacy and Copyright Office and Executive Officer of the Vice-President Academic and Provost’s Office,
• search memorandums were sent to various program areas,
• the actual search for records were conducted by senior administrative staff, and
• the searches were supervised by the Chair of the Psychology Department.

[34] The university states that all records responsive to the request were disclosed, in full or in part, to the appellant.

[35] The appellant’s representations focus on her assertion that the university’s search failed to locate additional records that would respond to her request for clinical area meeting minutes. [10] The appellant says that she has a reasonable basis to believe that meeting minutes should exist for the clinical area meeting scheduled for April 24, 2017 and that portions of the clinical area meeting minutes for September 24, 2018 were missing from the copy disclosed to her.

[36] In support of her position that meeting minutes for the April 24, 2017 meeting should have been located, the appellant references records disclosed to her which indicate that a meeting was scheduled for that date. The appellant acknowledges in her representations that the university told her that the April 24, 2017 meeting did not take place. But the appellant argues that “[r]ecords of meeting cancellation notices or communications to that effect should exist. Merely declaring that a meeting did not occur because no record exists … does not constitute a proper search.”

[37] The appellant also says that the university’s search failed to locate the full meeting minutes for the September 24, 2018 clinical area meeting. The appellant says that the copy of the meeting minutes provided to her is missing the “discussion” and “vote information” that took place at this meeting about her.

[38] Finally, the appellant submits that the university failed to identify the steps it took to locate responsive records.

[39] In its response, the university says that during mediation it told the appellant that the progress of individual students was discussed in a separate meeting that took place on September 24, 2018. The university says that this meeting was held in camera and states in its representations that:

[g]iven the sensitivity of the information discussed this is the approach taken for any such meeting when student progress is discussed. Minutes are not recorded, and the results of discussions are made available only to each individual student.

[40] The appellant in her sur-reply representations questions the university’s evidence that two separate meetings took place on September 24, 2018. The appellant also argues that the university should be required to search for records to corroborate its claim that the April 24, 2017 meeting was cancelled. In support of this argument, the appellant says that any meeting scheduled and cancelled should have a “record trail”, such as emails and calendar bookings and that this information should be provided to her.

[41] Finally, the appellant made general submissions questioning the reasonableness of the university’s search. For example, the appellant says that the university’s claim that a reasonable search took place is based on “assertions” as opposed to “evidence.”

[42] The appellant also raised a number of issues relating to the conduct of the university in relation to the decisions it makes which affect students. As noted above, the appellant asserts that additional records than what had been located by the university should exist given the seriousness of the decisions being made about students. The appellant says that she “is asking for transparency and accountability from the [university] in its decision, actions, and processes.” The appellant also says that the university provided insufficient evidence regarding its retention policies.

Decision and analysis

[43] I have considered the evidence of the parties and for the reasons stated below find that the university conducted a reasonable search for records which would respond to the appellant’s request.

[44] As noted above, a reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request makes a reasonable effort to locate records that are reasonably related to the request. [11] I find that the university provided satisfactory details of its search efforts and find that its searches were coordinated by experienced individuals knowledgeable in the subject matter of the request. The Act does not require the institution to prove with certainty that further records do not exist. However, the university must provide enough evidence to show that it has made a reasonable effort to identify and locate responsive records; [12] that is, records that are "reasonably related” to the request. [13]

[45] The appellant asserts that records, such as notes, notations, “vote information” or notes of discussions created by faculty members should exist related to various meetings. However, I found that these types of records were not responsive to the request. Accordingly, any request for this type of information would constitute a new request.

[46] The appellant has provided insufficient evidence to establish that the university’s submission that a meeting did not occur on April 24, 2017 was untruthful. I accept the university’s statement that a meeting did not occur without documentary evidence to prove its veracity. In my view, the appellant’s request for documentary evidence of the meeting cancellation amounts to a request for records outside the scope of the original request.

[47] In addition, I am not persuaded by the appellant’s argument that specific information regarding the university’s retention policies is required in the circumstances of this appeal to determine whether a reasonable search took place. In my view, the absence of this evidence does not negate my finding that the university demonstrated a reasonable effort to locate the requested meeting minutes. In any event, I find that the university’s evidence regarding its policies related to meeting minutes provided a satisfactory explanation as to why information relating to a student’s evaluation or progress would not be found in meeting minutes.

[48] Finally, I find that the appellant’s concerns about the conduct of the university is outside the jurisdiction of the IPC.

[49] For the reasons set out above, I find that the university conducted a reasonable search for records for responsive records.

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

[50] In order to decide which sections of the Act may apply to a specific case, the IPC must first decide whether the record contains “personal information,” and if so, to whom the personal information relates.

[51] Section 2(1) of the Act defines “personal information” as “recorded information about an identifiable individual.”

[52] “Recorded information” is information recorded in any format, such as paper records, electronic records, digital photographs, videos, or maps. [14] Information is “about” the individual when it refers to them in their personal capacity, which means that it reveals something of a personal nature about the individual.

[53] Generally, information about an individual in their professional, official or business capacity is not considered to be “about” the individual. [15]

[54] Information is about an “identifiable individual” if it is reasonable to expect that an individual can be identified from the information either by itself or if combined with other information. [16]

[55] In its representations, the university says that the following withheld information constitutes the personal information of identifiable individuals:

• the status of student completion of degree requirements, dissertation proposals and courses completed along with information identifying “competition for practicum placements” (record 20);
• educational background, qualifications and/or history of practicum participants (records 22, 25, 32);
• education background of faculty members teaching within the program (record 22);
• “sensitive information related to students” at one of the practicum placements (record 24); and
• potential candidates for teaching positions identified by their name (record 33).

[56] The university goes on to state in its representations:

There is a reasonable expectation that the information contained within these records, if disclosed, either alone or when combined with information from sources otherwise available, could identify the students and faculty members from a small pool of potential individuals. The records at issue in this appeal, deal with information related to a class size of 7 or 8 students.

…

The information discussed is information related to education, personal opinions about the progress of students in the Clinical Psychology Program or potential candidates for teaching positions in the Program. Even with the names removed, the remaining information would be identifiable to other members of the class who know, for example, that certain individuals encountered difficulties in the Program.

[57] The appellant’s representations did not specifically address the university’s argument that the records contain information which could identify individuals despite their name not being contained in the records. Instead, the appellant made comments about the university’s decision to withhold the names of student representatives though she confirmed during mediation that she was not pursuing access to this information. [17]

[58] The parties do not assert that the records contain the personal information of the appellant.

[59] I note that in the portion of the appellant’s representations in which she makes submissions on reasonable search she provided copies of tables found on the university’s website which identify the number of applications, offers, enrollments and internships in the clinical psychology program over the past 7 years. I have reviewed the tables and confirm that a very small number of candidates are offered placements and that the numbers of males, the age ranges of students, and students who identify under a diverse category who applied for placements are reported along with other information in these tables.

[60] I also note that, other than the names of potential candidates for a teaching position withheld in record 33, the information withheld from the appellant in records 20, 22, 24, 25, 32 and 33 do not identify individuals by their name. However, I am satisfied that if the withheld information is disclosed to the appellant it is reasonable to expect that an individual can be identified from the information either by itself or if combined with other information given the small number of students in the clinical psychology program.

[61] Having regard to the representations of the parties and the records themselves, I find that the withheld information constitutes personal information as defined in paragraphs (b)(education, medical and/or employment history) and (e)(personal opinions of views of certain events involving another individual) of the section 2(1) definition of that term in the Act. [18] I am also satisfied that record 33 also contains personal information as defined in paragraph (h) [19] of the section 2(1) definition of that term as potential teaching candidates names appear with other personal information relating to them. I also am satisfied that the information pertaining to identifiable individuals does not appear in a professional, business or official capacity.

[62] I will go on to determine whether disclosure of the personal information at issue to the appellant would constitute an unjustified invasion of personal privacy under section 21(1).

C. Does the mandatory personal privacy exemption at section 21(1) apply to the personal information at issue?

[63] One of the purposes of the Act is to protect the privacy of individuals with respect to personal information about themselves held by institutions.

[64] Section 21(1) of the Act creates a general rule that an institution cannot disclose personal information about another individual to a requester. This general rule is subject to a number of exceptions.

[65] The section 21(1)(a) to (e) exceptions are relatively straightforward. If any of the five exceptions covered in sections 21(1)(a) to (e) exist, the institution must disclose the information. The university claims that none of the exceptions in sections 21(1)(a) to (e) apply in the circumstances of this appeal and I agree.

[66] The section 21(1)(f) exception is more complicated. It requires the institution to disclose another individual’s personal information to a requester only if this would not be an “unjustified invasion of personal privacy.” Other parts of section 21 must be looked at to decide whether disclosure of the other individual’s personal information would be an unjustified invasion of personal privacy.

[67] Under section 21(1)(f), if disclosure of the personal information would not be an unjustified invasion of personal privacy, the personal information is not exempt from disclosure. Sections 21(2), (3) and (4) help in deciding whether disclosure would or would not be an unjustified invasion of personal privacy. Sections 21(3)(a) to (h) should generally be considered first. [20] These sections outline several situations in which disclosing personal information is presumed to be an unjustified invasion of personal privacy.

[68] If the personal information being requested does not fit within any presumptions under section 21(3), one must next consider the factors set out in section 21(2) to determine whether or not disclosure would be an unjustified invasion of personal privacy. However, if any of the situations in section 21(4) is present, then section 21(2) need not be considered.

[69] Section 21(2) lists several factors that may be relevant to determining whether disclosure of personal information would be an unjustified invasion of personal privacy. [21] Some of the factors weigh in favour of disclosure, while others weigh against disclosure. If no factors favouring disclosure are present, the section 21(1) exemption — the general rule that personal information should not be disclosed — applies because the exception in section 21(1)(f) has not been proven. [22]

[70] The university claims that the factors at sections 21(2)(e) [23] ,(f), (h), and (i) which states:

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,

(e) the individual to whom the information relates will be exposed unfairly to pecuniary or other harm;

(f) the personal information is highly sensitive;

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

(i) the disclosure may unfairly damage the reputation of any person referred to in the record.

[71] The appellant takes the position that the withheld information should be disclosed to her. In support of this position, the appellant states:

Much of the University’s representation … in which it attempts to justify its application of the section 21(1) exemption, is mere recitation of the Act and jurisprudence thereunder. The University has not provided evidence to support exempting the information under the Act and has not established a reasonable expectation that the released information can be linked with an identifiable individual. Again, it argues by assertion rather than by adducing actual evidence to explain why the exemption should apply.

Decision and analysis

[72] The appellant takes the position that the university should disclose the withheld information to her. However, she does not argue that the personal information of other individuals is relevant to a fair determination of her rights [24] or some other purpose. Instead, she appears to take the position that the information should be disclosed to her because the information, in most cases, does not contain the name of the affected individual.

[73] In my view, the appellant’s submissions do not establish that a factor favouring disclosure applies in the circumstances of this appeal. As the appellant has not established that a factor favouring disclosure applies, I do not need to consider the factors favouring non-disclosure raised by the university. As noted above, the general rule that personal information should not be disclosed applies because the exception in section 21(1)(f) has not been proven.

[74] In any event, I am satisfied that the records themselves establish the application of the factors weighing in favour of privacy protection at sections 21(2)(f) and (i) apply in the circumstance of this appeal. In its representations, the university says that while individual student issues are not discussed at clinical area meetings, “area-wide issues” are discussed. In discussing these issues, information regarding the numbers of students out of a total of 7 or 8 who have completed different aspects of the curriculum, such as courses and practicums is reported in the minutes. In addition, the minutes contain information about the accreditation of post-graduate students. In my view, the personal information at issue is highly sensitive as it relates to information regarding the performance of individuals or challenges they faced while in the program. [25] I already determined that this information could identify individuals this information affects, if disclosed to the appellant. I am satisfied that there is reasonable expectation of significant personal distress on the part of the affected individuals if the information is disclosed. In addition, I am satisfied that disclosure of the personal information might create damage or harm to an individual’s reputation that would be considered “unfair” to the individual. [26]

[75] As the appellant has not established any of the factors favouring of the disclosure of the personal information, I find that disclosure of the personal information would be an unjustified invasion of personal privacy and it is exempt under section 21(1). Accordingly, I uphold the university’s decision to withhold the personal information at issue from the appellant.

ORDER:

The appeal is dismissed.

Original signed by:		December 7, 2022
Jennifer James
Adjudicator