ORDER P-1491

 

Appeal P_9700109

 

Ministry of Finance

 

NATURE OF THE APPEAL:

 

The appellant made a request to the Ministry of Finance (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act).  The request was for access to a specific Mortgage Broker’s file.  The Ministry located the records responsive to the request and denied access to them on the basis of the following exemptions:

 

•           law enforcement - section 14(2)(a)

•           third party information - section 17(1)

•           solicitor-client privilege - section 19

•           invasion of privacy - section 21

 

The appellant appealed the decision.

 

Due to the large number of records at issue in this appeal, a general index of documents was prepared and sent to the appellant.  The appellant advised that she is not pursuing access to Records 1, 52, 70, 74 and 128.  Consequently, these records have been eliminated from the scope of this appeal.

 

This office sent a Notice of Inquiry to the Ministry, the appellant and three individuals whose interests could be affected by the outcome of this appeal (the affected parties).  Representations were received from the Ministry, the appellant and two of the affected parties.

 

In its representations, the Ministry withdrew its reliance on section 17(1) of the Act, and indicated it no longer objected to the disclosure of Records 2, 19, 20, 22a, 26, 27, 29-31, 36, 40, 47, 48, 54, 55, 57a, 58-61, 64, 65, 87, 88a, 90, 91a and 92.

 

RECORDS:

 

The records are generally described in Appendix “A” to this order.

 

DISCUSSION:

 

THIRD PARTY INFORMATION

 

For a record to qualify for exemption under section 17(1)(a), (b) or (c) the Ministry and/or the affected party must satisfy each part of the following three-part test:

 

1.         the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and

 

2.         the information must have been supplied to the institution in confidence, either implicitly or explicitly; and

 

3.         the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in (a), (b) or (c) of section 17(1) will occur.

 

[Order 36]

 

As noted above, the Ministry has withdrawn its reliance on section 17(1).  One of the affected parties indicated he did not object to any business related information being disclosed to the appellant, another affected party did not submit representations, and the third does not refer to the requirements of section 17(1) in his representations.  Accordingly, I have not been provided with any evidence to indicate that this information was supplied to the Ministry in confidence, either explicitly or implicitly.  Nor have I been supplied with any evidence of a reasonable expectation that the harms described in sections 17(1)(a), (b) or (c) will occur should the information be disclosed.  As all three parts of the section 17(1) test must be satisfied, I find that section 17(1) has no application to the information which remains at issue in this appeal.

 

PERSONAL INFORMATION/DISCRETION TO REFUSE APPELLANT’S OWN INFORMATION

 

Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded information about an identifiable individual.

 

I find that Records 35, 57, 91 and 92-155 contain the personal information of the appellant and other identifiable individuals.  Records 19-21, 25-27, 29-31, 33, 34, 36, 39-42, 48, 54, 55, 58-61, 64, 65, 83, 87 and 90 do not contain personal information.

 

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(a) of the Act, the Ministry has the discretion to deny access to an individual’s own personal information in instances where the exemptions in sections 12, 13, 14, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information.  In the course of addressing the application of sections 14 and 19, I will review the records found to be exempt to determine whether they contain the personal information of the appellant.  If these records do contain the personal information of the appellant, section 49(a) will be considered.

 

SOLICITOR-CLIENT PRIVILEGE

 

This section consists of two branches, which provide the Ministry with the discretion to refuse to disclose:

1.         a record that is subject to the common law solicitor-client privilege; (Branch 1) and

 

2.         a record which was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation (Branch 2).

 

Two criteria must be satisfied in order for a record to qualify for exemption under Branch 2:

 

1.         the record must have been prepared by or for Crown counsel; and

 

2.         the record must have been prepared for use in giving legal advice, or in contemplation of litigation, or for use in litigation.

 

[Order 210]

 

I have reviewed Records 23, 24, 28, 53, 86 and the last two lines severed from Record 57, and I find that each was prepared by or for Crown counsel for use in giving legal advice, or in contemplation of or for use in litigation.  Accordingly, these records or parts of records qualify for exemption under Branch 2 of section 19 of the Act.  Records 23, 24, 28, 53 and 86 do not contain the personal information of the appellant, and they are exempt under section 19.  As Record 57 contains the personal information of the appellant, it is exempt under section 49(a) of the Act.

 

LAW ENFORCEMENT

 

In order for a record to qualify for exemption under section 14(2)(a) of the Act, the Ministry must satisfy each part of the following three part test:

 

1.         the record must be a report; and

 

2.         the report must have been prepared in the course of law enforcement, inspections or investigations; and

 

3.         the report must have been prepared by an agency which has the function of enforcing and regulating compliance with a law.

 

[Orders 200 and P-324]

 

The word “report” is not defined in the Act.  However, in order to qualify as a report, a record must consist of a formal statement or account of the results of the collation and consideration of information.  Generally speaking, results would not include mere observations or recordings of fact (Order 200).

 

Having reviewed the records for which this exemption has been claimed, I find that Records 21, 25, and 43-46 do not consist of a formal statement or account of the results of the collation and consideration of information.  Accordingly, these records do not qualify as “reports”, and section 14(2)(a) does not apply to them.  Records 35 and 92-155, however, do meet the requirements outlined above, and qualify as “reports”.

 

The Mortgage Brokers Act (the “MBA”) establishes the Ministry, through the Minister, the Director and the Registrar, as the agency responsible for the regulation of mortgage brokers in Ontario.  This statute provides for the conducting of examinations, audits and inspections of registered corporations (sections 20 to 24).  In addition, it contains provisions dealing with enforcement and civil remedies (sections 26, 28 and 30) as well as offences (section 31).  I accept that the records were prepared by an agency which has the function of enforcing and regulating compliance with a law.

 

Record 35 is an investigation report submitted by an investigator to the Acting Director of the Investigations Branch.  The genesis of this investigation was a complaint received by the Ministry.

 

The Ministry submits that Records 92-155 constitute an inspection report on the mortgage brokerage.  Under section 21 of the MBA, the Registrar is authorized to enter the business premises of a registrant to ensure that the provisions of the MBA are being complied with.  The Ministry indicates that the Registrar does so during routine inspections as well as by conducting special inspections arising from complaints or other like information.  One of the differences in these two types of inspection relate to the notice provided to the registrants.  There is no prior notice on special non-routine inspections.  The Ministry submits that no prior notice was given for this particular inspection, and that it was conducted in direct response to information provided by an active officer of the mortgage broker that it was breaching the conditions of its registration.

 

Having reviewed both reports, I am satisfied that they were prepared in the course of inspections or investigations by the Ministry, an agency with the function of enforcing and regulating compliance with a law, namely the MBA.  Accordingly, I find they both qualify for exemption under section 14(2)(a) of the Act.  As these records contain the personal information of the appellant, they are exempt under section 49(a) of the Act.

 

INVASION OF PRIVACY

 

Records 3-18, 32, 37, 38, 43-47, 49-51, 56, 62, 63, 66-69, 71-73, 75-77, 79-82, 84, 85, 88 and 89 contain the personal information of individuals other than the appellant.  Record 91 contains the personal information of the appellant and other identifiable individuals.  The personal information relates to individuals’ date of birth, residential address, criminal record check, and personal financial records and does not include information about employees of the Ministry.

 

One of the affected parties has consented to the disclosure to the appellant of his personal information found in Records 3, 79 and 84.  As no other exemptions have been claimed for these records, they should be disclosed to the appellant.

 

Under section 49(b) of the Act, where a record contains the personal information of both the appellant and other individuals and the Ministry determines that the disclosure of the information would constitute an unjustified invasion of another individual’s personal privacy, the Ministry has the discretion to deny the appellant 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 the Ministry from releasing this information.

 

In both these situations, sections 21(2) and (3) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of the personal privacy of the individual to whom the information relates.  Section 21(2) provides some criteria for the Ministry to consider in making this determination.  Section 21(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy.  Section 21(4) refers to certain types of information whose disclosure does not constitute an unjustified invasion of personal privacy.  Once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in section 21(2).

 

The only way in which a section 21(3) presumption can be overcome is if the personal information at issue falls under section 21(4) of the Act or where a finding is made under section 23 of the Act that a compelling public interest exists in the disclosure of the record in which the personal information is contained, which clearly outweighs the purpose of the section 21 exemption.

 

The Ministry and one of the affected parties claim that clauses 21(3)(d) and (f) apply in the circumstances of this appeal.  These sections read:

 

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,

 

(d)       relates to employment or educational history;

 

(f)        describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness.

 

The affected party also argues that sections 21(2)(e), (f) and (i) are relevant in the circumstances of this appeal.  These sections read:

 

A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

 

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

 

(f)        the personal information is highly sensitive;

 

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

 

Aside from arguing that the records do not contain the personal information of the other identifiable individuals, the appellant has not raised any factors which weigh in favour of disclosure of the personal information of individuals other than herself.  I find the Ministry’s and the affected person’s representations persuasive and, in my view, the section 21(1)(f) exception to the mandatory exemption has not been established.  Accordingly, Records 3-18, 32, 37, 38, 43-47, 49-51, 56, 62, 63, 66-69, 71-73, 75-77, 80-82, 85, 88 and 89 are exempt under section 21.

 

The information which has been severed from Record 91, which also contains the personal information of the appellant, refers to clients of the mortgage brokerage and relates to the financial activities of these individuals.  Section 21(3)(f) of the Act provides that the disclosure of such personal information is presumed to constitute an unjustifiable invasion of personal privacy.  None of the exceptions under section 21(4) apply and the appellant has not raised the possible application of section 23 of the Act.  Accordingly, I find that the severed portion of Record 91 is exempt under section 49(b) of the Act.

 

ORDER:

 

1.         I order the Ministry to disclose Records 2, 3, 19-21, 25-27, 29-31, 33, 34, 36, 39-42, 48, 54, 55, 58-61, 64, 65, 79, 83, 84, 87 and 90 to the appellant by sending her a copy by December 29, 1997 but not earlier than December 24, 1997.

 

2.         I uphold the Ministry’s decision not to disclose the remaining records.

 

3          In order to verify compliance with this order, I reserve the right to require the Ministry to provide me with a copy of the records which are disclosed to the appellant pursuant to Provision 1.

 

 

 

 

 

 

 

Original signed by:                                                                         November 24, 1997                   

Holly Big Canoe

Inquiry Officer

APPENDIX “A”

 

INDEX OF RECORDS