ORDER P-654

 

Appeal P-9300086

 

Ministry of Housing

 

ORDER

 

BACKGROUND:

 

The Ministry of Housing (the Ministry) received two requests under the Freedom of Information and Protection of Privacy Act (the Act) for access to:

 

 

(1)        Copies of any documents or records in the Ministry that make any reference to the Management Review of the Rent Review Hearings Board Advice to the Minister of Housing and Secretary of Cabinet dated March 1991 or [named individual's] response to the report dated May 13, 1991.

 

(2)        All notes contributing to the Management Review of the Rent Review Hearings Board Advice to the Minister of Housing and Secretary of Cabinet dated March 1991.

 

 

With respect to the first request, the Ministry stated that there were no responsive records.  As for the second request, the Ministry did not respond within the 30 days prescribed by the Act.

 

The requester appealed the non-existence of records and the Ministry's deemed refusal to provide access.

 

During mediation, the Ministry issued a decision letter and identified approximately 900 pages of documents as constituting the records responsive to both requests.  The Ministry granted full access to approximately 400 pages. The Ministry denied access to Pages 36-37, 38-39, 67-90 and 197-199 in their entirety pursuant to section 12(1)(b) of the Act and to Pages 156, 693 and 893 in full, based on section 21 of the Act.  The remainder of the records (approximately 450 pages) were released to the appellant with severances made pursuant to section 21.  Further mediation resulted in the appellant agreeing to withdraw his claim for access to Pages 151-155.

 

Notice that an inquiry was being conducted to review the Ministry's decision was sent to the appellant and the Ministry.  Representations were received from both parties.

 

THE RECORDS:

 

The following background information is useful in understanding the nature of the records at issue in this appeal.

 

In 1991, allegations of mismanagement were levelled against the Rent Review Hearings Board (the Board).  In addition, complaints were made about the inappropriate conduct of a Board member.  As a result, a management review of the Board was subsequently conducted by an individual at the Ministry of Government Services (MGS), assisted by individuals from MGS and the Ministry of Community and Social Services (COMSOC).

The pages at issue consist of the documents generated during that management review.  A description of the pages and the exemptions claimed by the Ministry to deny access to them in whole or in part are provided in Appendices A and B to this order.

 

With respect to the interview notes which constitute the majority of the pages, the Ministry released the content of the interviews, but withheld the names and other personal identifiers of the interviewees.  The Ministry also refused to disclose the names and identifiers of the individuals referred to in the interviews.

 

 

ISSUES:

 

A.        Whether the mandatory exemption provided by section 12(1) of the Act applies.

 

B.        Whether the information contained in the records qualifies as "personal information" as defined in section 2(1) of the Act.

 

C.        If the answer to Issue B is yes, whether the mandatory exemption provided by section 21 of the Act applies.

 

 

SUBMISSIONS/CONCLUSIONS:

 

 

ISSUE A:       Whether the mandatory exemption provided by section 12(1) of the Act applies.

 

The Ministry claims that Pages 36-37, 38-39, 67-90 and 197-199 are exempt from disclosure pursuant to section 12(1)(b) or the introductory wording of section 12(1) of the Act.  Pages 89 and 90 are duplicates of Pages 38 and 39.

 

Section 12(1)(b) states:

 

 

A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including,

 

a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees;

 

Section 12(1)(b) establishes two criteria which must be satisfied in order for a record to qualify for exemption:  the record must contain policy options or recommendations, and it must have been submitted or prepared for submission to the Executive Council or one of its committees (Orders 73 and P-529).

 

Pages 36-37 consist of a memo dated February 8, 1991 from the Secretary of the Cabinet to the Chair of Management Board of Cabinet.  Pages 67-90 are the Terms of Reference for the Management Review of the Board and include, as Pages 89 and 90, a memo from the Deputy Minister of Housing to the Secretary of Management Board.  Pages 197-199 are notes of a meeting held on February 1, 1991 with the Minister's Executive Assistant and other individuals. The Ministry states:

 

 

The records outline a course of action to be taken in dealing with an investigation and the findings from the investigation were submitted to Cabinet.

 

 

I agree with the Ministry's characterization of the contents of these pages.  However, in my view, the information contained in these memoranda, terms of reference and notes does not constitute "policy options or recommendations" for the purposes of section 12(1)(b).  The documentation outlines the information which must be obtained in order to eventually develop options or recommendations.  Even if the findings from this investigation were used to create a record which was subsequently submitted to Cabinet, this is not sufficient to bring these pages within the scope of the section 12(1)(b) exemption (Order 73).  Accordingly, I find that section 12(1)(b) does not apply to these pages.

 

It has been determined in a number of previous orders that the use of the word "including" in the introductory wording of section 12(1) means that the disclosure of any record, which would reveal the substance of deliberations of an Executive Council or its committees (not just the types of records listed in the various subparagraphs of section 12(1)), qualifies for exemption under section 12(1) (Orders P-304, P-376 and P-529).

 

In addition, it is possible that a record which has never been placed before an Executive Council or its committees may qualify for exemption under the introductory wording of section 12(1). This result will occur where a Ministry establishes that disclosure of the record would reveal the substance of deliberations of an Executive Council or its committees, or that its release would permit the drawing of accurate inferences with respect to the substance of deliberations of an Executive Council or its committees (Orders P-361, P-376, P-424 and P-529).

 

The Ministry merely states that the pages fall under the definition of section 12(1) of the Act.  It has provided me with no evidence on which to make a finding that the introductory wording of section 12(1) is applicable in this case.

 

Since section 12(1) is a mandatory exemption, I have considered whether any of the other subparagraphs of section 12(1) might apply to these pages.  In my view, they do not.

 

Neither the Ministry's representations nor the additional information provided by the Ministry's Freedom of Information and Protection of Privacy Co-ordinator indicate whether the Terms of Reference, Pages 67-90, ever went before Cabinet or its committees.  Furthermore, I have been provided with no evidence to indicate the role of the Cabinet office in this matter.  Specifically, there is no evidence to indicate who made what decisions concerning this investigation, who decided that it should be undertaken and the details of how it should be conducted.  It appears from the records that the Secretary of the Cabinet was involved as a co-ordinator of the development of the Terms of Reference and the investigation rather than as a liaison with Cabinet or a Cabinet committee.  The Ministry's representations provide no evidence on any of these issues.

 

The "Review Schedule" of the Terms of Reference indicate that the final report is to be submitted to the Ministry of Housing.  There is no indication that the report would be submitted to Cabinet or one of its committees.  The investigation is now a matter of public record.

 

In these circumstances, having reviewed the records, and the Ministry's representations, I find that section 12(1) does not apply to Pages 36-37, 67-90 and 197-199.

 

In its representations, the Ministry submits that if section 12 does not exempt these pages from disclosure, certain portions should be withheld pursuant to section 21 of the Act.  I will consider the application of this section to these pages under Issues B and C.

 

 

ISSUE B:       Whether the information contained in the records qualifies as "personal information" as defined in section 2(1) of the Act.

 

 

Section 2(1) of the Act states, in part, that:

 

 

"personal information" means recorded information about an identifiable individual, including,

 

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

 

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

(h)        the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;

 

In his representations, the appellant submits that information provided by the Board staff should not be characterized as their personal information:

 

It is the responsibility of employees to bring concerns about the workplace to the appropriate authorities. Therefore, complaints about the workplace made by employees should be construed as being done in their professional capacity and not in their personal capacity. Their complaints should not be categorized as "personal information" as defined in subsection 2(1) of the Act and should not qualify for personal privacy protection.

 

In my opinion, it is not appropriate to cloak all information provided by an employee as falling outside his or her personal information.  Rather one must look at the context in which the information was provided.

 

In this case, the information related to the complaints was not provided as part of the individuals' job responsibilities or in their professional capacity.  Rather, the information was provided in the context of a review into management practices at the Board and constituted the personal opinions of the individuals about other individuals and Board practices.  Consequently, I conclude that the information provided by Board and Ministry staff in their interviews is their personal information.

 

There is some information, however, in the records that does relate to an individual's professional capacity or the execution of his or her employment duties.   This information is outside the scope of personal information (Orders P-257, P-270, P-326, P-369 and P-377).  It is contained in portions of Pages 442, 452, 475, 604, 616, 621, 629, 631, 637, 683 and 765.

 

Section 21 of the Act was the only exemption claimed by the Ministry to deny access to this information.  As I have found that it does not constitute "personal information", section 21 cannot apply and this information should be disclosed to the appellant.

 

The Ministry has also denied, pursuant to section 21, access to certain information on Pages 43 and 44 which, in my opinion, does not qualify as personal information.  The severances on these pages contain general allegations about the Board as a whole.

 

On Page 692, only the name of the interviewee constitutes personal information.  Access to Page 893, which is a chronology of the management review of the Board, was denied in full to the appellant based on section 21.  Only certain parts of this record contain personal information.  Accordingly, Pages 43 and 44 in their entirety, and those portions of Pages 692 and 893 which do not contain personal information should be disclosed to the appellant.

 

Page 370 is an interview scoring sheet from a job competition.  The Ministry has not disclosed the names of the individuals who conducted the interviews.  Interviewers' names do not constitute the personal information of these individuals (Order 171).  This portion of Page 370 should be released as section 21 cannot apply in these circumstances.

 

Under Issue A, I found that section 12 did not apply to Pages 36-37, 38-39, 67-90 and 197-199.  It is my opinion that certain parts of Pages 36, 37, 89, 197, 198 and 199 contain the personal information of individuals other than the appellant.  I will consider this information under Issue C.

 

ISSUE C:       If the answer to Issue B is yes, whether the mandatory exemption provided by section 21 of the Act applies.

 

Under Issue B, I found that the majority of the records contain the personal information of individuals other than the appellant.

 

One of the individuals whose personal information is contained in Page 515 has consented to the release of notes taken during his interview.  The Ministry has disclosed all the information contained in this record, except for the interviewee's name.  Since the individual has provided his consent, I order the disclosure of his name which appears at the top of Page 515.

 

Page 693 is a final draft for the 1991 edition of "Canadian Who's Who" containing biographical and personal information about a Board member.

 

The Ministry submits that, as Page 693 was never signed by the subject of the profile, it cannot determine whether it is correct, whether the individual approved of the content or if his consent was sought to release the record.

 

The personal information in Page 693 was ultimately published in the final 1991 "Canadian Who's Who", available at many public libraries.  In these circumstances, I conclude that this page should be disclosed to the appellant in its entirety.

 

Pages 557-558, 576 and 578 are the investigators' notes of the interviews conducted with the appellant.  The Ministry has disclosed these pages to the appellant with information about other individuals removed.  As the information which has not been disclosed was originally provided by the appellant to the Ministry, Pages 557-558, 576 and 578 should be released to the appellant in their entirety .

 

As far as the balance of the personal information is concerned, section 21 of the Act is a mandatory exemption which prohibits the disclosure of personal information to any person other than to the individual to whom the information relates, except in the circumstances listed in sections 21(1)(a) through (f) of the Act.

 

In my view, the only exception to the mandatory exemption contained in section 21 of the Act which has potential application in the circumstances of this appeal is section 21(1)(f). This section reads:

 

 

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

 

if the disclosure does not constitute an unjustified invasion of personal privacy.

 

Because section 21(1)(f) is an exception to the mandatory exemption which prohibits the disclosure of personal information, in order for me to find that section 21(1)f) applies, I must find that disclosure of the personal information would not constitute an unjustified invasion of personal privacy.

 

Sections 21(2), (3) and (4) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of an individual's personal privacy. Section 21(2) contains an non-exhaustive list of factors to be considered in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy.

 

The appellant maintains that he requires the information "for anticipated legal action", thereby implicitly raising the application of section 21(2)(d) of the Act 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,

 

the personal information is relevant to a fair determination of rights affecting the person who made the request;

 

In order for section 21(2)(d) to be regarded as a relevant consideration, the appellant must establish that:

 

 

(1)        the right in question is a legal right which is drawn from the concepts of common law or statute law, as opposed to a non-legal right based solely on moral or ethical grounds;  and

 

 

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

 

(3)        the personal information which the appellant is seeking access to has some bearing on or is significant to the determination of the right in question;  and

 

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

 

[Order P-312]

 

 

The appellant has provided me with no evidence to indicate the nature of the contemplated legal proceeding and how, if at all, the personal information at issue has some bearing on or is significant to the determination of this right.  Accordingly, I find that section 21(2)(d) is not a relevant consideration favouring disclosure in the circumstances of this appeal.

 

Having found that the information at issue qualifies as personal information, and in the absence of any evidence or argument weighing in favour of finding that disclosure of personal information would not constitute an unjustified invasion of personal privacy, I find that the exception in section 21(1)(f) does not apply.  Therefore, the exemption in section 21 of the Act applies to the personal information of individuals other than the appellant.

 

Several of the pages contain the comments made by certain individuals about the appellant during the course of their interviews.  The pages documenting these interviews have been disclosed to the appellant with the exception of the personal identifiers of the interviewees, as well as the name of the appellant.  I have held the personal identifiers of the interviewees to be exempt pursuant to section 21 of the Act.  The balance of the information in these records is the personal information of the appellant which has not been disclosed.

 

In these circumstances, the name of the appellant as it appears on Pages 432, 654, 724, 725, 726, 735, 777, 780, 781, 795, 797, 814, 816, 817, 818, 839, 840, 841, 846, 851, 852, 858, 859 and 861 should be disclosed to him.

 

In this order, I have found that some information appearing in certain pages should be disclosed to the appellant, while other personal information is exempt pursuant to section 21 of the Act.  I have provided a copy of these pages to the Ministry's Freedom of Information and Protection of Privacy Co-ordinator with this order.  I have highlighted, in yellow, those portions which should be disclosed to the appellant.

 

 

ORDER:

 

 

1.         I order the Ministry to disclose to the appellant Pages 43, 44, 442, 452, 515, 557_558, 576, 578, 683, 693 and 765 in their entirety.

 

2.         I order the Ministry to disclose to the appellant the highlighted portions of Pages 36, 37, 38, 39, 41, 42, 45, 52-53, 54, 56, 57, 58-59, 65, 67-90, 197-199, 370, 432, 475, 604, 616, 621, 629, 631, 637, 654, 692, 724, 725, 726, 735,  777, 780, 781, 795, 797, 814, 816, 817, 818, 839, 840, 841-842, 846, 851, 852, 858, 859, 861 and 893.  I have provided copies of these pages to the Ministry's Freedom of Information and Protection of Privacy Co_ordinator with this order.

 

3.         I order that the pages identified in Provisions 1 and 2 be disclosed to the appellant within fifteen (15) days of the date of this order.

 

4.         I uphold the Ministry's decision not to disclose the remaining records.

 

5.         In order to verify compliance with this order, I order the Ministry to provide me with a copy of the pages which are disclosed to the appellant pursuant to Provisions 1 and 2, only upon request.

 

6.         In the event that the Ministry has any questions respecting the portions of the pages which should be disclosed, I may be approached for further direction.

 

 

 

 

 

 

 

 

Original signed by:                                                                    April 14, 1994               

Anita Fineberg

Inquiry Officer

APPENDIX A

 

RECORDS ORIGINALLY DENIED IN FULL

 

 

PAGE NUMBER	DESCRIPTION	EXEMPTION	ORDER
36-37	Memo dated February 8, 1991, from Secretary of Cabinet to Chair, Management Board of Cabinet	12(1)(b)	Disclose in part
38-39	Memo dated January 31, 1991, from Deputy Minister of Housing to Secretary of the Management Board, Management Board of Cabinet	12(1)(b)	Disclose in part
67-90	Terms of Reference:  Management Board of Rent Review Hearing Board (pages 89 and 90 are duplicates of pages 38 and 39)	12(1)(b)	Disclose in part
156	Comments respecting an advisor to the Rent Review Hearings Board	21	Decision upheld
197-199	Notes of meeting held February 1, 1991 at Ministry of Housing	12(1)(b)	Disclose in part
693	Final draft for 1991 edition of "Canadian Who's Who" respecting a Rent Review Hearings Board member	21	Disclose in full
893	Chronology of Management and Operational Review of the Rent Review Hearings Board	21	Disclose in part

 

APPENDIX B

 

RECORDS ORIGINALLY DENIED IN PART PURSUANT TO SECTION 21