Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The requester's husband was killed in a highway traffic accident when a logfell from a truck and struck his car. The requester submitted a request to theMinistry of the Attorney General (the Ministry) under the Freedom ofInformation and Protection of Privacy Act (the Act ) foraccess to the Crown brief relating to the police investigation of the accident. The Ministry provided the appellant with access to some of the documents inthe Crown brief, including all but one of the witness statements taken by thepolice, severing only the witnesses' home addresses and telephone numbers. TheMinistry cited section 21(1) (invasion of privacy) to withhold the homeaddresses and telephone numbers and several other documents, including thestatement taken from the driver of the truck which the police suspected may havebeen carrying the log which struck the appellant's husband's car. The requester (now the appellant) appealed the Ministry's decision andconfirmed that she wished to obtain only the statement given to the police bythe driver of the truck, as well as the witnesses' home addresses and telephonenumbers. A Notice of Inquiry was provided by this office to the appellant, theMinistry and 17 individuals whose rights might be affected by the disclosure ofthe records (the affected persons). Representations were received from theMinistry, the appellant and two of the affected persons. In addition, nine ofthe affected persons consented to the release of their home addresses andtelephone numbers to the appellant. The information which remains at issue in this appeal consists of portionsof Records 39, 40, 155, 160, 182, 188, 192, 194, 215, 221, 233, 237, 245, 306and 310 and Records 66-77 in their entirety DISCUSSION: INVASION OF PRIVACY Under section 2(1) of the Act , "personal information" isdefined, in part, to mean recorded information about an identifiable individual. I have reviewed the information contained in the records and find that theycontain only the personal information of the affected persons. Section 21(1) of the Act prohibits the Ministry from disclosingpersonal information except in the circumstances listed in sections 21(1)(a)through (f). Of these, only section 21(1)(f) could apply in this appeal. Itpermits disclosure if it "does not constitute an unjustified invasion ofpersonal privacy". Disclosing the types of personal information listed in section 21(3) ispresumed to be an unjustified invasion of personal privacy. If one of thepresumptions applies, the institution can disclose the personal information onlyif it falls under section 21(4) or if section 23 applies to it. The Ministry submits that the disclosure of the information requested wouldconstitute a presumed unjustified invasion of the affected persons' personalprivacy, as the information was compiled as part of a law enforcementinvestigation into a violation of law [section 21(3)(b)], namely, whether thedriver had failed to properly secure his load or remain at the scene of theaccident, contrary to the provisions of the Highway Traffic Act or the Criminal Code , respectively. The appellant contends that since the names and statements of the witnesseshave already been disclosed to her in response to her request, the release oftheir addresses and telephone numbers would not be an invasion of their privacy. She adds that their addresses and telephone numbers are likely availablethrough other public sources. The appellant also asserts that she requires the driver's statement in orderto assess whether she should pursue civil proceedings against him [section21(2)(d) - fair determination of rights]. In addition, the appellant arguesthat the disclosure of this statement may promote health and safety [section21(2)(b)], since drivers should know that if their negligence causes injury ordeath, they cannot leave an accident scene and then later claim the privacyprotections of the Act . According to the appellant, it is in the publicinterest that further investigation by way of a court proceeding and a courtdetermination be made respecting the circumstances surrounding the accident. One of the affected persons objects to the release of his home address andtelephone number because his recollection of the accident is not clear due tothe passage of time. This individual concludes that he does not wish to beinvolved in this matter at this time. Counsel for the truck driver submits that his client wishes to offer thefamily his sincere condolences on their loss, but indicates that charges wereultimately not brought against his client and that his client's truck was foundto be in compliance with all safety standards. He asserts that the disclosureof the driver's statement could create serious negative publicity for his client[section 21(2)(i)] and have a detrimental impact on his client's business[section 21(2)(e)]. I have reviewed the information contained in the records, together with therepresentations of the Ministry, the appellant and the affected persons. I amsatisfied that the personal information was "compiled and is identifiableas part of an investigation to a possible violation of law", a policeinvestigation into a possible breach of the Highway Traffic Act and/orthe Criminal Code . I find that the requirements of section 21(3)(b) aremet and the presumption in section 21(3)(b) applies. As noted above, the only way such a presumption can be rebutted is ifsections 21(4) or 23 apply. Even if I were to find that section 21(2)(b) or (d)were relevant in the circumstances of this appeal, the Divisional Court'sdecision in the case of John Doe v. Ontario (Information and PrivacyCommissioner) (1993) 13 O.R. 767 held that the factors and considerations insection 21(2) cannot be used to rebut the presumptions in section 21(3). None ofthe information in the records falls within section 21(4). However, since theappellant has raised section 23, I will consider whether section 23 applies tothe records. PUBLIC INTEREST IN DISCLOSURE The appellant argues that there is a public interest in the disclosure ofthe record at issue in accordance with section 23 of the Act . Thissection provides: An exemption from disclosure of a record under sections 13, 15, 17, 18, 20and 21 does not apply where a compelling public interest inthe disclosure of the record clearly outweighs the purpose of the exemption. (Emphasis added) There are two requirements contained in section 21 which must be satisfiedin order to invoke the application of the so-called "public interestoverride": there must be a compelling public interest indisclosure and this compelling public interest must clearly outweighthe purpose of the exemptio
Decision Content
ORDER P-1319
Appeal P-9600331
Ministry of the Attorney General
NATURE OF THE APPEAL:
The requester’s husband was killed in a highway traffic accident when a log fell from a truck and struck his car. The requester submitted a request to the Ministry of the Attorney General (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act) for access to the Crown brief relating to the police investigation of the accident.
The Ministry provided the appellant with access to some of the documents in the Crown brief, including all but one of the witness statements taken by the police, severing only the witnesses’ home addresses and telephone numbers. The Ministry cited section 21(1) (invasion of privacy) to withhold the home addresses and telephone numbers and several other documents, including the statement taken from the driver of the truck which the police suspected may have been carrying the log which struck the appellant’s husband’s car.
The requester (now the appellant) appealed the Ministry’s decision and confirmed that she wished to obtain only the statement given to the police by the driver of the truck, as well as the witnesses’ home addresses and telephone numbers.
A Notice of Inquiry was provided by this office to the appellant, the Ministry and 17 individuals whose rights might be affected by the disclosure of the records (the affected persons). Representations were received from the Ministry, the appellant and two of the affected persons. In addition, nine of the affected persons consented to the release of their home addresses and telephone numbers to the appellant.
The information which remains at issue in this appeal consists of portions of Records 39, 40, 155, 160, 182, 188, 192, 194, 215, 221, 233, 237, 245, 306 and 310 and Records 66-77 in their entirety
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. I have reviewed the information contained in the records and find that they contain only the personal information of the affected persons.
Section 21(1) of the Act prohibits the Ministry from disclosing personal information except in the circumstances listed in sections 21(1)(a) through (f). Of these, only section 21(1)(f) could apply in this appeal. It permits disclosure if it “does not constitute an unjustified invasion of personal privacy”.
Disclosing the types of personal information listed in section 21(3) is presumed to be an unjustified invasion of personal privacy. If one of the presumptions applies, the institution can disclose the personal information only if it falls under section 21(4) or if section 23 applies to it.
The Ministry submits that the disclosure of the information requested would constitute a presumed unjustified invasion of the affected persons’ personal privacy, as the information was compiled as part of a law enforcement investigation into a violation of law [section 21(3)(b)], namely, whether the driver had failed to properly secure his load or remain at the scene of the accident, contrary to the provisions of the Highway Traffic Act or the Criminal Code, respectively.
The appellant contends that since the names and statements of the witnesses have already been disclosed to her in response to her request, the release of their addresses and telephone numbers would not be an invasion of their privacy. She adds that their addresses and telephone numbers are likely available through other public sources.
The appellant also asserts that she requires the driver’s statement in order to assess whether she should pursue civil proceedings against him [section 21(2)(d) - fair determination of rights]. In addition, the appellant argues that the disclosure of this statement may promote health and safety [section 21(2)(b)], since drivers should know that if their negligence causes injury or death, they cannot leave an accident scene and then later claim the privacy protections of the Act. According to the appellant, it is in the public interest that further investigation by way of a court proceeding and a court determination be made respecting the circumstances surrounding the accident.
One of the affected persons objects to the release of his home address and telephone number because his recollection of the accident is not clear due to the passage of time. This individual concludes that he does not wish to be involved in this matter at this time.
Counsel for the truck driver submits that his client wishes to offer the family his sincere condolences on their loss, but indicates that charges were ultimately not brought against his client and that his client’s truck was found to be in compliance with all safety standards. He asserts that the disclosure of the driver’s statement could create serious negative publicity for his client [section 21(2)(i)] and have a detrimental impact on his client’s business [section 21(2)(e)].
I have reviewed the information contained in the records, together with the representations of the Ministry, the appellant and the affected persons. I am satisfied that the personal information was “compiled and is identifiable as part of an investigation to a possible violation of law”, a police investigation into a possible breach of the Highway Traffic Act and/or the Criminal Code. I find that the requirements of section 21(3)(b) are met and the presumption in section 21(3)(b) applies.
As noted above, the only way such a presumption can be rebutted is if sections 21(4) or 23 apply. Even if I were to find that section 21(2)(b) or (d) were relevant in the circumstances of this appeal, the Divisional Court’s decision in the case of John Doe v. Ontario (Information and Privacy Commissioner) (1993) 13 O.R. 767 held that the factors and considerations in section
21(2) cannot be used to rebut the presumptions in section 21(3). None of the information in the records falls within section 21(4). However, since the appellant has raised section 23, I will consider whether section 23 applies to the records.
PUBLIC INTEREST IN DISCLOSURE
The appellant argues that there is a public interest in the disclosure of the record at issue in accordance with section 23 of the Act. This section provides:
An exemption from disclosure of a record under sections 13, 15, 17, 18, 20 and 21 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption. (Emphasis added)
There are two requirements contained in section 21 which must be satisfied in order to invoke the application of the so-called “public interest override”: there must be a compelling public interest in disclosure and this compelling public interest must clearly outweigh the purpose of the exemption.
The appellant contends that there is a compelling public interest in the disclosure of the requested information, in that, negligent drivers will be identified and not allowed to hide behind the privacy protections of the Act. In addition, the appellant suggests that disclosure of the information will encourage drivers not to leave the scene of an accident. Finally, the appellant argues that the public would want to ensure that she has the full opportunity to review and investigate the information respecting the accident and that the loss of a husband and father in these circumstances clearly outweigh the purpose of the exemption.
I am not persuaded that there is a compelling public interest in either the disclosure of the home addresses and telephone numbers of the witnesses or the statement of the suspect driver. The appellant is aware of the names of all the witnesses and has been provided with their business addresses and telephone numbers. In my view, this disclosure is sufficient to allow the appellant to contact these individuals should she so desire.
With respect to the driver’s statement, the interest advanced by the appellant is a private rather than a public one; in my view, she requires the statement in order to determine whether to pursue civil proceedings against the driver. I am also not swayed by the appellant’s argument that disclosure of this statement would serve the public interest by deterring individuals from leaving the scene of an accident. I note that there are already sanctions in place under the Criminal Code for failure to remain at the scene of an accident.
Accordingly, I find that section 23 does not apply since there is no compelling public interest in the disclosure of the information which clearly outweighs the purpose of the mandatory personal
privacy exemption.
ORDER:
I uphold the decision of the Ministry.
Original signed by: December 18, 1996
Donald Hale
Inquiry Officer