ORDER MO-4307

Appeal MA20-00556

Rideau Valley Conservation Authority

December 21, 2022

Summary: This order relates to a request made under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) to the Rideau Valley Conservation Authority (the RVCA) for correspondence from and to specified individuals about a development (the development) for a specified date range. While the RVCA disclosed some records in full, it withheld other records in full pursuant to the mandatory personal privacy exemption at section 14(1)  of the Act . In this order, the adjudicator upholds the RVCA’s decision to withhold the records under section 14(1) and she dismisses the appeal.

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(1)(f), 14(2)(a), and 14(3)(d).

OVERVIEW:

[1] By way of background, the Rideau Valley Conservation Authority (the RVCA) approved a permit application pursuant to the Conservation Authorities Act  [1] for permission to fill and grade certain parts of development lands (the development). Following this approval, the RVCA received correspondence from individuals (the affected parties), expressing their concern with it.

[2] The RVCA received a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) for:

All records of correspondence, including all letters, emails, memos and notes, from [specified individual], [specified individual], and/or [specified individual] (in their personal and/or professional capacities) sent to the [RVCA] concerning [the development]. Access to all responses sent by the [RVCA] are also requested.

[3] The date range of the request is from November 12, 2019 to August 20, 2020, after the development received approval from RVCA.

[4] Following notification to the specified individuals, the RVCA issued a decision granting partial access to the responsive records, with ten records disclosed in full where, according to the RVCA, two of the three specified individuals (the affected parties) communicated with the RVCA in their capacity as employees of a municipal institution (the disclosed records), and with 29 records withheld in full pursuant to section 14(1)  of the Act , where, according to the RVCA, the affected parties communicated with the RVCA as private citizens (the records).

[5] The appellant appealed the RVCA’s decision to the Office of the Information and Privacy Commissioner (the IPC).

[6] During mediation, the appellant advised the mediator that they wish to pursue access to all the withheld information in the records related to two of the three specified individuals (the first affected party and the second affected party; collectively, the affected parties). However, the RVCA advised the mediator that this narrowing would not change the number of records remaining at issue because there were no records concerning the third individual specified.

[7] No further mediation was possible and this appeal was transferred to the adjudication stage of the appeals process, where an adjudicator may conduct an inquiry.

[8] I commenced an inquiry by inviting representations from the RVCA and the affected parties initially and receiving representations from the RVCA and the first affected party, while the second affected party provided me with a copy of their comments to the RVCA at the notification stage, which questioned the motive behind the request. [2] I shared the RVCA’s representations and a summary of the first affected party’s representations with the appellant, and invited representations from the appellant. The appellant submitted representations, which I shared with the RVCA and the affected parties. I then invited and received reply representations from the RVCA and the affected parties, and sur-reply representations from the RVCA. The representations of the parties were shared in accordance with the confidentiality criteria in IPC Practice Direction 7 and section 7 of the IPC’s Code of Procedure.

[9] In this order, I find that the records contain the personal information of the affected parties and are exempt from disclosure pursuant to section 14(1)  of the Act .

RECORDS:

[10] There are 351 pages of records at issue consisting of emails and other correspondence that make up the 29 responsive records withheld in full (the records).

ISSUES:

1. Does the record contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?
2. Does the mandatory personal privacy exemption at section 14(1) apply to the records?

DISCUSSION:

Issue A: Does the record contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?

[11] The RVCA has withheld the records on the basis of the mandatory section 14(1) personal privacy exemption. This exemption can only apply to personal information and so I must first decide whether the records contain “personal information,” and if so, to whom the personal information relates.

[12] Section 2(1)  of the Act  defines “personal information” as “recorded information about an identifiable individual.” [3] “Recorded information” is information recorded in any format, such as paper records, electronic records, digital photographs, videos, or maps. 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. Generally, information about an individual in their professional, official or business capacity is not considered to be “about” the individual. [4] In some situations, even if information relates to an individual in a professional, official or business capacity, it may still be “personal information” if it reveals something of a personal nature about the individual. [5] 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. [6]

[13] Section 2(1)  of the Act  gives a list of examples of personal information:

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

(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(c) any identifying number, symbol or other particular assigned to the individual,

(d) the address, telephone number, fingerprints or blood type of the individual,

(e) the personal opinions or views of the individual except if they relate to another individual,

(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

(g) the views or opinions of another individual about the individual, and

(h) the individual’s name 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] The list of examples of personal information under section 2(1) is not a complete list. This means that other kinds of information could also be “personal information.” [7]

[15] Sections 2(2) , (2.1)  and (2.2)  of the Act  exclude some information from the definition of personal information. Sections 2(2.1) and (2.2) state:

(2.1) 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.

(2.2) For greater certainty, subsection (2.1) 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.

Representations of the parties

[16] The RVCA submits that the records contain personal information because the affected parties sent the emails from their personal email accounts, acting in their personal capacity as private citizens, and expressed their own personal opinions about the approval process. It relies on the meaning of “personal information” as defined in paragraph (e) of the section 2(1) definition of that term related to the personal opinions or views of individuals. The RVCA submits that it considered whether any of the statutory exclusions in 2(2), 2(2.1) or 2(2.2) applied and determined that none applied. The RVCA further submits that it determined that the records could not be severed given that the opinions expressed pervaded the entire records.

[17] The affected parties [8] submit that:

• The records contain personal information that originated from actions the affected parties took in their personal capacity, and they contain their personal opinions concerning the RVCA’s approval of the permit application for the development, submitted as private citizens.
• The records show that the affected parties’ involvement have had to be as private citizens ‐ not as employees of a municipal institution.
• The records are based on publicly available information, which originated from the public websites of the RVCA, a municipal institution and/or the Province of Ontario.
• Even with the redaction of name and address/email address, the specific nature of the comments/submissions would distinguish the submissions of the affected parties and even identify them specifically. The records contain specific personal information about them that could be used to identify them, including information about their education, employment and professional training.

[18] The appellant submits that the records do not qualify as “personal information” because, given that the disclosed records contain opinions developed and expressed by the affected parties in their professional capacity as employees of a municipal institution in relation to the development, the records contain further opinions developed by the affected parties in the course of their employment with of a municipal institution.

[19] In support of its position, the appellant refers to Order PO-2225, where the following two-step approach to interpreting the distinction between a personal context and a business, professional and/or governmental context when examining whether information meets the definition of “personal information” in section 2(1):

... the first question to ask in a case such as this is: "in what context do the names of the individuals appear"? Is it a context that is inherently personal, or is it one such as a business, professional or official government context that is removed from the personal sphere?...

The analysis does not end here. I must go on to ask: "is there something about the particular information at issue that, if disclosed, would reveal something of a personal nature about the individual"? Even if the information appears in a business context, would its disclosure reveal something that is inherently personal in nature?

[20] Using this approach, the appellant submits that the opinions contained in the records are: (1) developed and submitted in the context of the affected parties’ professional duties as employees of a municipal institution that are removed from the personal sphere; and (2) there is nothing about the particular information at issue that, if disclosed, would reveal something of a personal nature about the affected parties.

[21] The appellant also refers to Order P-1409, where the treatment of information associated with an individual’s employment was reviewed:

To summarize the approach taken by [the IPC] in past decisions on this subject, information which identifies an individual in his or her employment, professional or official capacity, or provides a business address or telephone number, is usually not regarded as personal information. This also applies to opinions developed or expressed by an individual in his or her employment, professional or official capacity, and information about other normal activities undertaken in that context. [emphasis added by the appellant]

[22] The appellant submits that the information referred to in the records could only have been gained through the affected parties’ positions as employees of a municipal institution, and as such, any opinions expressed in the records would be an opinion developed in the course of their professional duties as employees of a municipal institution. It also submits that the affected parties have already expressed opinions to staff at the RVCA via their email accounts with a municipal institution that make their views on the development known, and as such, any similar opinions in the records are not of a personal nature.

[23] In addition, the appellant interprets the representations of the RVCA and the affected parties to mean that because the affected parties’ opinions were sent from a personal email account, they are automatically deemed to be personal information. It submits that changing the origin of the email communication from a work email account to a personal email account does not change the nature of the communication. As a result, it submits that it is unlikely that the records would disclose anything personal in nature about the affected parties.

[24] The appellant also submits, given that the subject of the records is a matter of municipal business, and those in the discussion are employees of a municipal institution or the RVCA, the information is not “about” the affected parties.

[25] The appellant further submits that, in the normal context of municipal approval, applicants are entitled to understand the information and comments (including contrary information and comments) that public authorities are provided in respect of their applications – especially when the source of such information and comments is employees from another public authority.

[26] In response to the appellant’s representations on the significance of the affected parties sending personal emails to RVCA staff, the affected parties submit that these points are pure speculation and completely unfounded, and it is irrelevant that the affected parties may have worked with RVCA staff in the past. They submit that the records identify that they were submitting the comments to the RVCA as private citizens. In addition, the affected parties submit that being an employee of a municipal institution does not preclude them from making submissions to a public body as a private citizen based on publicly available information, nor should the affected parties lose their privacy rights because they made submissions to a public body as private citizens.

[27] The affected parties further submit that the personal opinions expressed in the records are based on information that was available to the public and openly published on the websites of the RVCA and the Province of Ontario.

[28] In response, the appellant submits that neither the RVCA nor the affected parties have provided a satisfactory explanation as to how an RVCA employee would view an email received from one of the affected parties’ personal email accounts. It explains that, given the close working relationship shown in the records, it is reasonable to assume that when an RVCA employee received an email from the private email address of either of the affected parties, discussing opinions which they had previously raised in the context of their employment, that such correspondence would be a continuation of or related to earlier discussions. The appellant also responds that neither the RVCA nor the affected parties have pointed to any request that the communication be treated in a different manner or on a confidential basis.

Analysis and findings

[29] As explained below, based on my review of the records and the parties’ representations, I find that the records contain the affected parties’ personal information.

[30] The appellant submits that the disclosed records demonstrate that the affected parties’ opinions about the development in the records are expressly related to their professional duties as employees of a municipal institution. I disagree.

[31] I agree with the affected parties that an individual’s employment or profession should not preclude them from being able to express their opinions as a concerned private citizen. There is nothing in the records to suggest that the affected parties used information obtained from their employment to express their concerns about the RVCA’s approval of the permit application for the development; [9] in fact, my review of the records reveals that the affected parties refer to publicly available information. While not automatically deemed to be personal information because the records were sent using personal email accounts, this is an important factor when analyzing whether records contain “personal information”, as is the fact that the affected parties used their personal postal addresses and advised the RVCA that they were expressing their concerns as private citizens. Moreover, in the circumstances of this appeal, sending personal emails to employees of the RVCA that the affected parties may know professionally does not change the substance or nature of the records from personal to professional.

[32] I note that the request sought information from the affected parties “in their personal and professional capacities”, and yet the appellant now argues that the records do not contain “personal information”.

[33] I agree with the RVCA that the records contain the affected parties’ personal opinions or views related to the approval of the permit application for the development, in addition to the affected parties’ names, addresses, and educational and employment history, which fit within subsections (b), (d), (e) and (h) of the definition of “personal information”. I also find that the records contain information about the affected parties in a personal capacity. The records demonstrate the personal efforts undertaken by the affected parties to raise their concerns about the RVCA’s approval of the permit application for the development. While such concerns may have been informed by the affected parties’ education, professional training and/or employment, they have undertaken their own personal action in their personal capacity to address these concerns with the RVCA. Even if I had found that the records contain information about the affected parties in a professional capacity, I would have nonetheless found that the information reveals something of a personal nature about them, namely, their personal opinions and views of the RVCA’s approval process for the development and their personal actions undertaken.

[34] I also considered whether the affected parties’ names and addresses could be severed from the records. However, I have concluded that, based on the surrounding circumstances and my review of the records, the affected parties would nevertheless be identifiable from the remaining information in the records and I have therefore concluded that the entirety of the records is the personal information of the affected parties. This is especially the case given that the request was specifically for correspondence from the affected parties, where they were specifically named.

[35] Having found that the records contain the personal information of the affected parties, I must now consider whether the mandatory personal privacy exemption in section 14(1) applies to the affected parties’ personal information withheld by the RVCA to the records.

Issue B: Does the mandatory personal privacy exemption at section 14(1) apply to the records?

[36] One of the purposes of the Act  is to protect the privacy of individuals with respect to personal information about themselves held by institutions. Where a requester seeks personal information of other individuals, as is the case in this appeal, section 14(1) prohibits an institution from releasing this information, unless one of the exceptions in paragraphs (a) to (f) of section 14(1) applies.

[37] The RVCA submits that none of the exceptions listed at sections 14(1) (a) to (e) of the Act  apply. In particular, it explains that neither of the affected parties consented to the disclosure of the records to the appellant, nor are these records generally available to the public. I agree with the RVCA and find that none of the exceptions in section 14(1)(a) to (e) apply.

Section 14(1)(f) exception: Disclosure is not an unjustified invasion of personal privacy

[38] The section 14(1)(f) exception allows the institution to disclose another individual’s personal information to a requester only if this would not be an “unjustified invasion of personal privacy.”

[39] Sections 14(2), (3) and (4) help in deciding whether disclosure would or would not be an unjustified invasion of personal privacy. Sections 14(3)(a) to (h) should generally be considered first. [10] These sections outline several situations in which disclosing personal information is presumed to be an unjustified invasion of personal privacy.

[40] If one of these presumptions applies, the personal information cannot be disclosed unless:

• there is a reason under section 14(4) that disclosure of the information would not be an “unjustified invasion of personal privacy,” or
• there is a “compelling public interest” under section 16 that means the information should nonetheless be disclosed (the “public interest override”). [11]

[41] If the personal information being requested does not fit within any presumptions under section 14(3), one must next consider the factors set out in section 14(2) to determine whether or not disclosure would be an unjustified invasion of personal privacy. However, if any of the situations in section 14(4) is present, then section 14(2) need not be considered.

Section 14(4): Do any of the situations listed in section 14(4) apply?

[42] If any of the paragraphs in section 14(4)  of the Act  apply, disclosure of personal information is not an unjustified invasion of personal privacy, even if one of the section 14(3) presumptions exists.

[43] None of the parties have submitted representations that any of the situations in section 14(4)  of the Act  are present. Based on my review of the records and the circumstances of this appeal, I find that none of the situations are present.

Section 14(3): Is disclosure presumed to be an unjustified invasion of personal privacy?

[44] The RVCA submits that it determined that the release of the records could constitute an unjustified intrusion upon the personal privacy of the affected parties, and erred on the side of protecting personal privacy over the release of the records to the appellant. The affected parties agree with this position, submitting that the mandatory personal privacy exemption should apply to exempt the records from disclosure.

[45] On the other hand, the appellant submits that the section 14(1)(f) exception to the exemption applies and that disclosure of the records would not be an unjustified invasion of personal privacy. It submits that none of the section 14(3)(a) to (h) provisions apply to the records, and no representations have been submitted for these provisions.

[46] However, in light of my finding above that the records specifically contain information about the affected parties’ educational and employment history, I consider whether the presumption at section 14(3)(d) applies to portions of the records.

14(3)(d): employment or educational history

[47] This presumption covers several types of information connected to employment or education history, including:

• start and end dates of employment,
• number of years of service,
• the last day worked,
• information contained in resumes and work histories. [12]

[48] However, a person’s name and professional title alone do not constitute “employment history” and are not covered by the presumption. [13]

Analysis and findings

[49] Based on my review of the records, I find that they contain personal information related to the employment and educational history of the affected parties. Accordingly, I find that this presumption applies to the portions of the records related to employment and educational history.

[50] As noted above, in reviewing the mandatory personal privacy exemption in section 14(1), once a section 14(3) presumption has been established, a presumed unjustified invasion of personal privacy under section 14(3) can only be overcome if section 14(4) or the “public interest override” at section 16 applies. I have found that the section 14(3)(d) presumption applies to some portions of the records, and that none of the situations in section 14(4) apply in the circumstances of this appeal. The parties also did not argue that the “public interest override” at section 16 applies to the information at issue, and I am satisfied that it does not. Therefore, I find that the mandatory personal privacy exemption at section 14(1) applies to the portions of the records related to the affected parties’ employment and education history and that these portions are exempt from disclosure. [14]

[51] Other than these portions of the records, I find that the presumptions in section 14(3) do not apply to the records. I will consider the factors outlined in section 14(2)  of the Act  for the remaining portions of the records [15] to determine whether disclosure of the records would be an unjustified invasion of personal privacy.

Section 14(2): Do any factors in section 14(2) help in deciding if disclosure would be an unjustified invasion of personal privacy?

[52] Section 14(2) lists several factors that may be relevant to determining whether disclosure of personal information would be an unjustified invasion of personal privacy. [16] Some of the factors weigh in favour of disclosure, while others weigh against disclosure. If no factors favouring disclosure are present, the section 14(1) exemption — the general rule that personal information should not be disclosed — applies because the exception in section 14(1)(f) has not been proven. [17]

[53] The list of factors under section 14(2) is not a complete list. The institution must also consider any other circumstances that are relevant, even if these circumstances are not listed under section 14(2). [18]

[54] Each of the first four factors, found in sections 14(2)(a) to (d), if established, would tend to support disclosure of the personal information in question, while the remaining five factors found in sections 14(2)(e) to (i), if established, would tend to support non- disclosure of that information.

Representations of the parties

[55] The RVCA submits that it considered the factors listed in section 14(2)  of the Act  but ultimately, it determined that there was no valid reason for the disclosure. It submits that it could not ascertain any valid reason (nor was any offered by the appellant) for disclosure of the records under section 14(2)  of the Act .

[56] The appellant submits that the factor in section 14(2)(a) applies.

14(2)(a): disclosure is desirable for public scrutiny and ensuring public confidence in an institution, as an additional consideration [19] )

[57] The section 14(2)(a) factor supports disclosure when disclosure would subject the activities of the government (as opposed to the views or actions of private individuals) to public scrutiny. [20] It promotes transparency of government actions. The issues addressed in the information that is being sought do not have to have been the subject of public debate in order for this section to apply, but the existence of public debate on the issues might support disclosure under section 14(2)(a). [21] Institutions should consider the broader interests of public accountability when considering whether disclosure is “desirable” or appropriate to allow for public scrutiny of its activities. [22]

[58] The appellant submits that disclosure of the records is desirable for public scrutiny pursuant to section 14(2)(a) of the Act and for ensuring public confidence in an institution, as an additional consideration, because:

1. The records are from employees of a municipal institution in relation to information and opinions gained and developed during the course of their employment duties (as set out in the disclosed records). Neither the RVCA nor the affected parties have provided detailed submissions that the opinions contained in the records were not formed in relation to the affected parties’ position as employees of a municipal institution. As such, the context of the subject-matter favours disclosure.
2. For the affected parties to be able to access government records and develop opinions as employees of a municipal institution and then express opinions on the very same subject matter to the RVCA but be shielded from public disclosure because of use of the personal email accounts frustrates the legislative scheme of the Act , sets a dangerous precedent that is not in the spirit of the public access regime.
3. Given the position of authority and trust occupied by employees of a municipal institution, it undermines confidence in the statutory permit process to allows these employees to privately advocate their positions to their conservation authority counterparts simply by changing their email address. This sets a dangerous precedent that is not in the spirit of the Conservation Authorities Act .
4. No submissions have been made by the RVCA or the affected parties as to the context or reason for the use of the affected parties’ personal email accounts. As the emails were sent from the affected parties’ personal email accounts, a municipal institution does not have access to the records.

[59] In response, the RVCA submits that the development received approval from the RVCA before the date range related to the request, and therefore, it considered that the records had no impact whatsoever upon the approval process. The affected parties also respond that the records at issue are not to scrutinize or seek accountability for a public agency’s decision-making; rather, the request has targeted records submitted by specific members of the public (in a personal capacity) that scrutinize the RVCA’s decisions. They also point to the timing of the request being made after the approval of the permit application for records sent to the RVCA after the approval.

[60] In response, the appellant submits that this argument has no merit because, as the disclosed records demonstrate, the affected parties discussed municipal business relating to the development with staff members of the RVCA, which could continue to impact the development. It refutes the suggestion that it is somehow misusing the provisions of the Act .

Analysis and findings

[61] Having reviewed the parties’ representations, I find that disclosure of the records would not subject the activities of an institution to public scrutiny, nor would it ensure public confidence in an institution, in the circumstances of this appeal. As I found above, the records contain the personal information of the affected parties in a personal capacity, and as a result, the context of the subject-matter of the records does not favour disclosure. It is difficult for me to understand the appellant’s argument that disclosure of the affected parties’ opinions and views in a personal capacity would subject the activities of an institution to public scrutiny, or ensure public confidence in an institution. Disclosure of the records in the circumstances of this appeal would subject the views and actions of private individuals to scrutiny, as opposed to those of the government, which is the intention of these factors. This is especially the case given that the permit application for the development was approved by the RVCA prior to the records being sent to the RVCA (and therefore, had no impact on the development), as well as the fact that the work outlined in the permit has already been completed.

[62] Accordingly, I give these factors no weight.

Summary of findings related to the section 14(1)(f) exception

[63] In my view, the appellant’s representations do not establish that a factor favouring disclosure applies in the circumstances of this appeal. As noted above, I give no weight to the factor in section 14(2)(a) (disclosure is desirable for public scrutiny), as well as the unlisted factor of ensuring public confidence in an institution.

[64] 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 RVCA and the affected parties. As noted above, the general rule that personal information should not be disclosed applies because the exception in section 14(1)(f) has not been proven.

[65] As the appellant has not established any of the factors favouring the disclosure of the records, and given my finding above that the presumption in section 14(3)(d) applies to some portions of the records related to the affected parties’ employment and education history, I find that disclosure of the records would be an unjustified invasion of personal privacy and they are exempt from disclosure under section 14(1).

ORDER:

I uphold the RVCA’s decision to withhold the records from the appellant and dismiss the appeal.

Original Signed by:		December 21, 2022
Valerie Silva
Adjudicator