Access to Information Orders

ORDER P-706

 

Appeal P_9300390

 

Management Board Secretariat

 

NATURE OF THE APPEAL:

 

This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act).  The appellant has requested copies of records from Management Board Secretariat (the Secretariat).  The requested records are the entire contents of the file relating to a complaint made by the appellant under the Workplace Discrimination and Harassment Prevention Program (WDHP).  The Secretariat granted access to a substantial part of the file.  The Secretariat relies on the following exemptions to deny access to the remainder of the file:

 

•           invasion of privacy - sections 21(1) and 49(b).

 

In addition to appealing the denial of access based on these exemptions, the appellant has also indicated that he believes additional responsive records exist.

 

A Notice of Inquiry was provided to the parties to the appeal including the Secretariat, the appellant and the respondent in the WDHP complaint (the respondent).  This notice was also sent to 16 persons (the witnesses) who gave, or declined to give, statements to the WDHP investigator.  Representations were received from the Secretariat, the appellant, the respondent and 10 of the witnesses.

 

There are 52 records at issue, consisting of the records and parts of records in the WDHP complaint file which have not been disclosed to the appellant.  Throughout this order, I will use the record numbers assigned by the Secretariat.  The records are described in detail in Appendix "A" to this order.  They fall into five groups, as follows:

 

Group 1:          Witness statements and other documents provided by the respondent and witnesses; investigator's notes regarding the complaint;

 

Group 2:          Other records involving witnesses; additional investigator's notes;

 

Group 3:          Job competition records including applications by persons other than the appellant;

 

Group 4:          Job competition records which include information about the appellant; and

 

Group 5:          Memorandum (Record 172) written by the respondent, not directly related to complaint.

 

The Secretariat has stated that in its view Record 172 (which is the only record in Group 5) is not responsive to the request and should not form part of this appeal.  I have examined Record 172 and I agree with the Secretariat's interpretation.  In my view, this record relates to the job performance of an individual other than the appellant and it does not relate to the WDHP complaint.  Therefore, although it may have been physically located in the file, in my view it is not responsive to the request and I will not consider it further in this appeal.

PRELIMINARY ISSUES:

 

DISCRETIONARY EXEMPTIONS RAISED BY WITNESSES

 

One of the witnesses submits that section 13(1) of the Act applies to some of the records.  Another witness raises the possible application of section 49(c) of the Act.  Both of these are discretionary exemptions which the Secretariat has not raised.

 

In Order P-257, former Assistant Commissioner Tom Mitchinson considered whether an affected person could raise a discretionary exemption not claimed by an institution, and stated as follows:

 

As a general rule, with respect to all exemptions other than sections 17(1) and 21(1), it is up to the head to determine which exemptions, if any, should apply to any requested record.  If the head feels that an exemption should not apply, it would only be in the most unusual of situations that the matter would even come to the attention of the Commissioner's office, since the record would have been released ...  In my view, however, the Information and Privacy Commissioner has an inherent obligation to ensure the integrity of Ontario's access and privacy scheme.  In discharging this responsibility, there may be rare occasions when the Commissioner decides it is necessary to consider the application of a particular section of the Act not raised by an institution during the course of the appeal.  This could occur in a situation where it becomes evident that disclosure of a record would affect the rights of an individual, or where the institution's actions would be clearly inconsistent with the application of a mandatory exemption provided by the Act.  In my view, however, it is only in this limited context that an affected person can raise the application of an exemption which has not been claimed by the head; the affected person has no right to rely on the exemption, and the Commissioner has no obligation to consider it.

 

I agree with former Assistant Commissioner Mitchinson's view.  In the circumstances of this appeal, I find that a consideration of the proper application of sections 21 and 49(b) to the records will address the interests of all parties, and that it is not necessary or appropriate for me to consider the witnesses' arguments with respect to sections 13(1) and 49(c) of the Act.

 

NOTIFICATION

 

In her representations, the respondent expresses concern that she was not notified by the Secretariat under section 28(1)(b) of the Act prior to the disclosure of some of her personal information.  That section states:

 

 

 

 

Before a head grants a request for access to a record,

 

that is personal information that the head has reason to believe might constitute an unjustified invasion of personal privacy for the purposes of clause 21(1)(f),

 

the head shall give written notice in accordance with subsection (2) to the person to whom the information relates.

 

In my view, section 28 contemplates that the Secretariat will assess records prior to disclosure to determine whether they contain personal information, but notification is only required if disclosure of that information might constitute an unjustified invasion of personal privacy.  If, after reviewing the record, the Secretariat concludes that disclosure would not constitute an unjustified invasion of personal privacy, notification under section 28 is not required.

 

In making this determination, possible factors to be considered by the Secretariat include the provisions of section 21 of the Act, as well as previous orders of the Commissioner's office dealing with similar records.  In the circumstances of this appeal, there is nothing to indicate anything improper in the way the Secretariat made this assessment.

 

DISCUSSION:

 

INVASION OF PRIVACY

 

Under section 2(1) of the Act, "personal information" is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and 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.

 

I have reviewed the records.  In my view, all of the records in Groups 1 and 4 contain the personal information of the appellant and one or more other individuals.  The records in Groups 2 and 3 contain only the personal information of individuals other than the appellant.

 

Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body.  Section 49 provides a number of exceptions to this general right of access.  Under section 49(b) of the Act, where a record contains the personal information of both the appellant and other individuals and the institution determines that the disclosure of the information would constitute an unjustified invasion of another individual's personal privacy, the institution has the discretion to deny the requester access to that information.

 

Where, however, the record only contains the personal information of other individuals, and the release of this information would constitute an unjustified invasion of the personal privacy of these individuals, section 21(1) of the Act prohibits disclosure of this information.

 

In both these situations, sections 21(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of personal information would constitute an unjustified invasion of personal privacy.  Where one of the presumptions found in section 21(3) applies to the personal information found in a record, the only way such a presumption against disclosure can be overcome is where the personal information falls under section 21(4) or where a finding is made that section 23 of the Act applies to the personal information.

 

If none of the presumptions contained in section 21(3) apply, the institution must consider the application of the factors listed in section 21(2), as well as all other considerations that are relevant in the circumstances of the case.

 

In its representations, the Secretariat cites the following provisions which, if applicable, weigh in favour of privacy protection:

 

•           the information is highly sensitive - section 21(2)(f)

•           the information was supplied in confidence - section 21(2)(h).

 

The respondent's representations cite the following provisions which, if applicable, weigh in favour of privacy protection:

 

•           the individuals to whom the information relates would be exposed unfairly to harm in the event of disclosure - section 21(2)(e)

•           the information is highly sensitive - section 21(2)(f)

•           the information was supplied in confidence - section 21(2)(h)

•           the information relates to employment history and therefore disclosure would be a presumed unjustified invasion of privacy - section 21(3)(d).

 

The representations received from the witnesses refer to the same provisions raised by the respondent.  In addition, they raise the possible application of the following provisions to the information in these records:

 

•           the information was compiled and is identifiable as part of an investigation into a possible violation of law, and therefore disclosure would be a presumed unjustified invasion of privacy - section 21(3)(b).

 

•           the information consists of personal recommendations or evaluations, character references or personnel evaluations, and therefore disclosure would be a presumed unjustified invasion of privacy - section 21(3)(g).

 

With respect to the expectation of confidentiality cited by the respondent and all of the witnesses, I have reviewed the investigator's opening statement, which was read to each witness.  That statement includes the following:

 

Throughout the complaint and investigation process all information must remain confidential, subject to the Freedom of Information and Protection of Privacy Act and the requirement to disclose information or give evidence as required by law, such as grievance arbitrations, Ontario Human Rights Commission proceedings and judicial proceedings.

 

This statement derives from the WDHP Directive, which includes the following additional statement on this subject:

 

The parties to a complaint and all witnesses must be advised about the application of the Freedom of Information and Protection of Privacy Act to any evidence gathered, and about potential disclosure of such evidence required according to law.

 

I accept the statement of the respondent and the witnesses who made representations, to the effect that they believed the information they provided to the investigator would be kept in strict confidence.  However, in my view this interpretation of the statement read to them is at odds with its true intent, which is to indicate that, although the process is confidential, disclosure may be required for a number of different reasons, one of them being the application of the access provisions of the Act to the information being collected.

 

I will now discuss the records at issue, by record group.

 

Record Group 1

 

I have found that the Group 1 records all contain the personal information of the appellant and one or more other individuals.  The Secretariat has indicated that it relies on section 49(b) of the Act to exempt these records from disclosure.

 

Having carefully reviewed the records and the representations, I have made the following findings regarding the Group 1 records:

 

(1)        These records were prepared in the context of the WDHP investigation, and were not compiled as part of an investigation of a possible violation of law.  Therefore the presumption in section 21(3)(b) does not apply.

 

 

 

(2)        The portions of these records which reveal the dates upon which particular individuals (other than the appellant) held particular positions in the past, and the circumstances under which individuals left their positions, would qualify as their employment history and accordingly, disclosure of that information would be a presumed unjustified invasion of their privacy under section 21(3)(d).  The remainder of the information in these records does not qualify as employment history and section 21(3)(d) does not apply to it.

 

(3)        In a broad sense, it could be argued that some of the comments contained in these records are "evaluations" of the appellant or the respondent.  However, in my view, it is not possible to characterize these comments as "personal evaluations" or "personnel evaluations".  The records were created during an investigation to determine whether workplace harassment under the WDHP had taken place and, in my view, with two exceptions they have no "personal" or "personnel" component as required by section 21(3)(g) (Order M-82).

 

The exceptions are Records 84 and 85 which contain rankings relating to job competitions.  In my view these rankings would constitute "personnel evaluations".  However, in the circumstances of this appeal, if the personal identifiers of the candidates are removed under section 10(2) of the Act, this information loses its character as personal information and its disclosure can therefore not be an unjustified invasion of personal privacy.  Accordingly, I find that section 21(3)(g) does not apply to the information contained in these two records except the personal identifiers of the participants (other than the appellant) in the competitions.

 

(4)        Section 21(4) does not pertain to any of the information in these records to which sections 21(3)(d) and (g) apply.

 

(5)        Based on the evidence presented, I am not satisfied that disclosure of the information in these records would cause the individuals to whom the information relates to be exposed unfairly to harm, and accordingly, section 21(2)(e) is not a relevant factor.

 

(6)        Many past orders have indicated that some information in connection with WDHP investigations is highly sensitive within the meaning of section 21(2)(f).  However, it has also been found that is not possible for such an investigation to proceed if the complaint is not made known to the respondent and the direct response to the allegations made in the complaint is not made known to the complainant (Orders M-82 and P-685).  In addition, where, as in this case, the investigation has been completed, it is essential that the parties (including the appellant) be advised of how the complaint was resolved and why (Order P-694).

 

 

In my view, section 21(2)(f) is relevant in the circumstances of this appeal, but only with respect to the personal information of persons other than the appellant and respondent, and not to information which directly addresses the substance of the complaint and the findings.  With respect to the questions asked of witnesses and their responses, I find that it is not possible to distinguish information which directly addresses the substance of the complaint from information which would reveal highly sensitive personal information about the witnesses.  In the circumstances of this appeal, I find that section 21(2)(f) is relevant to the questions asked of witnesses and their recorded responses in their entirety.

 

(7)        I find that section 21(2)(h) is relevant in the circumstances of this appeal, but only with respect to the personal information of persons other than the appellant and respondent, and not to information which directly addresses the substance of the complaint and the findings.  For the same reasons as set out in Item (6), I find that section 21(2)(h) is relevant to the questions asked of witnesses and their recorded responses in their entirety.

 

(8)        In view of points (1) through (7), above, I find that as the disclosure of the following information would constitute an unjustified invasion of the personal privacy of individuals other than the appellant, this information is exempt under section 49(b) of the Act:  the portions of Records 84, 85, 86, 88, 131 and 135 that have been highlighted on the copy of these records which is being sent to the Secretariat's Freedom of Information and Privacy Co-ordinator (the Co-ordinator) with a copy of this order, the whole of Record 69 except a three-page memorandum dated May 2, 1990 and the attached extract of the Employment Standards Act, the whole of Record 71 except the attached "Position Specification & Class Allocation" forms, the whole of Records 55, 56, 62, 64b, 65, 66, 67, 68, 70, 72, 73, 74, 75, 77, 79, 80, 95 and 125, and the portions of Records 109, 128 and 146 which have been previously withheld by the Secretariat.

 

Record Group 2

 

I have previously found that the records in this group contain only the personal information of individuals other than the appellant.  The Secretariat has indicated that the material it has withheld from disclosure in this group is exempt under section 49(b) of the Act.  However, section 49(b) can only apply to records which contain the personal information of the requester (who is the appellant in this case) and another individual or individuals, and accordingly section 49 is not available for these records.

 

Section 21 is the mandatory exemption regarding invasion of privacy which may apply to records which contain only the personal information of individuals other than the appellant.  Accordingly, I will consider whether any of the information in this group of records is exempt under that section.

 

Having carefully reviewed the records and the representations, I have made the following findings regarding the Group 2 records:

(1)        These records were prepared in the context of the WDHP investigation, and were not compiled as part of an investigation of a possible violation of law.  Therefore the presumption in section 21(3)(b) does not apply.

 

(2)        These records do not relate to anyone's employment history and the presumption in section 21(3)(d) does not apply.

 

(3)        These records do not contain personal recommendations or evaluations, character references or personnel evaluations, and the presumption in section 21(3)(g) does not apply.

 

(4)        Based on the evidence presented, I am not satisfied that disclosure of the information in these records would cause the individuals to whom the information relates to be exposed unfairly to harm, and accordingly, section 21(2)(e) is not a relevant factor.

 

(5)        As noted in the findings regarding Record Group 1, past orders have found that some information in connection with WDHP investigations is highly sensitive within the meaning of section 21(2)(f).  I find that section 21(2)(f) is relevant in the circumstances of this appeal but only with respect to the personal information of individuals other than the respondent and not to information which directly addresses the substance of the complaint and the findings.

 

(6)        I find that section 21(2)(h) is relevant in the circumstances of this appeal but only with respect to the personal information of persons other than the respondent and not to information which directly addresses the substance of the complaint and the findings.

 

(7)        In view of points (1) through (6), above, I find that, as the disclosure of the following information would constitute an unjustified invasion of the personal privacy of individuals other than the appellant, this information is exempt under section 21(1) of the Act:  the whole of Records 76, 78, 81 and 83 and the portions of Records 54, 57 and 90a which have been previously withheld by the Secretariat.

 

Record Group 3

 

I have found that the records in this group contain only the personal information of individuals other than the appellant.  The Secretariat has indicated that it relies on section 21(1) to exempt the records and portions of records in this group which have not been disclosed.  The information which has been withheld from disclosure in these records consists of the names, applications and resumés of various persons (other than the appellant) in several job competitions.

 

After reviewing the records and the representations made with respect to them, I have made the following findings:

(1)        With one exception, disclosure of any of the information in these records would be a presumed unjustified invasion of the personal privacy of individuals other than the appellant.  The information relates to employment history within the meaning of section 21(3)(d).  The exception is Record 177 which is a summary sheet regarding the results of a job competition.  I find that disclosure of the names and personal identifiers of the candidates would be an unjustified invasion of their personal privacy, but once the personal identifiers are removed under section 10(2), the remaining information loses its character as personal information and, accordingly, none of the presumptions or other factors favouring non-disclosure cited by the Secretariat, the respondent and the witnesses can apply to it.

 

(2)        Section 21(4) does not pertain to any of the information in these records to which section 21(3)(d) applies.

 

(3)        Accordingly, I find the portions of Record 177 that are highlighted on the copy of that record which will be sent to the Secretariat's Co-ordinator with a copy of this order, and all of the undisclosed parts of the other records in this group, to be exempt from disclosure under section 21(1) of the Act.

 

Record Group 4

 

The information in this record group relates to several job competitions.  The Secretariat has indicated that it relies on section 21(1) to exempt these records from disclosure.  As I have found that the records in this group contain the personal information of the appellant and one or more other individuals, the only way in which they could be exempt based on an unjustified invasion of personal privacy is under section 49(b).  Accordingly, I will consider whether they qualify for exemption under that section.

 

After reviewing the records and the representations made with respect to them, I have made the following findings:

 

(1)        While Record 154 as a whole contains the personal information of the appellant and others (which is why it must be considered under section 49(b) of the Act and not section 21), I find that the severed portion of it contains the personal information of the appellant only.  For that reason, the disclosure of the severed portion could not constitute an unjustified invasion of the privacy of any other individual, and the exemption in section 49(b) does not apply.

 

(2)        I find that the undisclosed information in Record 162 is highly sensitive and, therefore, section 21(2)(f) is a relevant factor.  In addition, I accept that this information was provided in confidence and section 21(2)(h) is a relevant factor.  In the absence of any factors favouring disclosure, I find that it is exempt under section 49(b).

 

(3)        The undisclosed parts of Records 164, 168 and 176 all contain summaries regarding the results of a job competition.  I find that disclosure of the names and personal identifiers of the candidates would be an unjustified invasion of their personal privacy, but once the names, personal identifiers and comments of the interviewers are removed, the remaining information loses its character as personal information and none of the presumptions or other factors favouring non-disclosure cited by the Secretariat, the respondent and the witnesses apply to it.  Accordingly, I find that the portions of these records which are highlighted on the copy of these records which are being sent to the Secretariat's Co_ordinator with a copy of this order, are exempt from disclosure under section 21(1) of the Act.

 

REASONABLENESS OF SEARCH

 

The appellant believes that additional responsive records exist.  In the Notice of Inquiry, the Secretariat was asked specifically to comment on the existence of several types of records identified by the appellant.  These are:

 

•           records relating to additional investigators

•           additional investigation reports produced by the other investigators

•           agenda, minutes and the decision of the case conference held in the matter

•           a list of persons outside the Workplace Discrimination and Harassment Unit who had access to the file.

 

In its representations, the Secretariat responded to each of these points.  The representations indicate that there were no additional investigators and no additional reports were produced.  There are no records in the form of an agenda, minutes or any recorded decision of a case conference.

 

With regard to other persons who had access to the file, the Secretariat indicates that the investigator discussed the file with his immediate supervisor, in accordance with standard office procedure.  The file was also discussed with the respondent to the complaint during the process in order to permit her to respond to the complaint.  Other consultations occurred after the date of the request and are therefore not part of the request.  However, the Secretariat's representations state that after receiving the request, the file was reviewed with Freedom of Information and Privacy staff at the Ministry of Agriculture and Food (now the Ministry of Agriculture, Food and Rural Affairs) because the investigation involved that Ministry.

 

In addition, the Secretariat provided an affidavit sworn by the investigator in this complaint.  This affidavit confirms that there were no additional investigators and no additional reports were produced.  It also confirms that there are no records in the form of an agenda, minutes or any recorded decision of a case conference.  The affidavit also states that all records concerning the investigation were locked up in the investigator's office, and that all of them have been produced to the Freedom of Information and Privacy Branch in response to the request.

Where a requester provides sufficient details about the records which he or she is seeking and the Secretariat indicates that additional records do not exist, it is my responsibility to ensure that the Secretariat has made a reasonable search to identify responsive records.  While the Act does not require that the Secretariat prove to the degree of absolute certainty that such records do not exist, the search which the Secretariat undertakes must be conducted by knowledgeable staff in locations where the records in question might reasonably be located.

 

Having carefully reviewed the representations of the Secretariat and the appellant on this subject, I am satisfied that the search conducted by the Secretariat for responsive records was reasonable in the circumstances of this appeal.

 

ORDER:

 

1.         I uphold the Secretariat's decision to deny access to the whole of Records 55, 56, 62, 64b, 65, 66, 67, 68, 70, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 83, 95, 125, 153, 158 and 174.

 

2.         I uphold the Secretariat's decision to deny access to the severed portions of Records 54, 57, 90a, 109, 128, 146, 155, 156, 157, 159, 160 and 162.

 

3.         I uphold the Secretariat's decision to deny access to the portions of Records 84, 85, 86, 88, 131, 135, 164, 168, 176 and 177 that are highlighted on the copy of these records which is being sent to the Secretariat's Freedom of Information and Privacy Co_ordinator with a copy of this order. 

 

4.         I uphold the Secretariat's decision to deny access to the whole of Record 69 except for the three-page memorandum dated May 2, 1990 and the attached extract of the Employment Standards Act, and the whole of Record 71 except the attached "Position Specification & Class Allocation" forms.

 

5.         I order the Secretariat to disclose to the appellant the portions of Records 84, 85, 86, 88, 131, 135, 164, 168, 176 and 177 that are not highlighted on the copy of the records which is being sent to the Secretariat's Freedom of Information and Privacy Co_ordinator with a copy of this order.

 

6.         I order the Secretariat to disclose to the appellant the portion of Record 69 consisting of a three-page memorandum dated May 2, 1990 and the attached extract from the Employment Standards Act, and to disclose the "Position Specification & Class Allocation" forms which are part of Record 71 to the appellant.

 

7.         I order the Secretariat to disclose Record 82 and the severed portion of Record 154 to the appellant.

 

8.         I order the Secretariat to disclose the records and parts of records ordered to be disclosed in Provisions 5, 6 and 7 within thirty-five (35) days after the date of this order but not before the thirtieth (30th) day after the date of this order.

 

9.         In order to verify compliance with Provisions 5, 6, 7 and 8 of this order, I reserve the right to require the Secretariat to provide me with a copy of the records that are disclosed to the appellant pursuant to those provisions.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Original signed by:                                                                    June 21, 1994               

John Higgins

Inquiry Officer

 

 

APPENDIX "A"

INDEX OF RECORDS AT ISSUE