Mediation of the appeal was not successful.  At the conclusion of mediation, the Ministry provided this office with an additional four pages of records comprising the notebook entries of the investigating police officer.  These pages were designated as Records 37-40. 

I provided the Ministry with a Notice of Inquiry setting out the facts and issues in the appeal.  The Ministry provided me with a new decision letter that it had sent to the appellant on April 5, 2004.  In that decision, the Ministry disclosed certain additional records, and parts of records to the appellant, and withdrew its reliance on sections 14(1)(a), (b) and (f). 

I then provided the appellant with a Notice of Inquiry, along with the complete representations of the Ministry.  The appellant also provided submissions in response to the Notice and indicated that she is no longer seeking access to the “ten codes” withheld under sections 14(1)(l) and 49(a).  As a result, the section 14(1)(l) exemption is no longer at issue in this appeal.

RECORDS:

The records remaining at issue consist of the following:

DISCUSSION:

PERSONAL INFORMATION

General principles

The section 49 personal privacy exemption applies only to information that qualifies as “personal information”.  That term is defined in section 2(1) as follows:

“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 where 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 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;

The list of examples of personal information under section 2(1) is not exhaustive.  Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information [Order 11].

“Identifiable”

To qualify as personal information, it must be reasonable to expect that an individual may be identified from the information [Order PO-1880, upheld on judicial review in Ontario (Attorney General) v. Pascoe, [2002] O.J. No. 4300 (C.A.)].

Findings

I have reviewed the remaining records and parts of records and make the following findings:

•         Records 1-2, 8, 9, 11, 12, 20, 21, 28, 29, 34, 35 and 38 contain information which qualifies as the personal information of the appellant and other identifiable individuals.  This information relates to their age, sex and family status (section 2(1)(a)), medical history (section 2(1)(b)), identifying numbers assigned to them (section 2(1)(c)), their address and telephone numbers (section 2(1)(d)) and the individuals’ names along with other personal information about them (section 2(1)(h)); and

•         Records 7, 17, 18, 19, 22, 30, 31, 32 and 40 contain only the personal information of individuals other than the appellant, including information relating to their age and sex (section 2(1)(a)), medical history (section 2(1)(b)), identifying numbers (section 2(1)(c)), addresses and telephone numbers (section 2(1)(d)) and their names along with other personal information (section 2(1)(h)).

INVASION OF PRIVACY

Section 47(1) of the Act gives individuals a general right of access to their own personal information held by an institution.  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 requester 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, a requester seeks personal information of another individual, section 21(1) of the Act prohibits an institution from releasing this information unless the disclosure does not constitute an unjustified invasion of personal privacy under section 21(1)(f).

Because I have found that Records 1-2, 8, 9, 11, 12, 20, 21, 28, 29, 34, 35 and 38 contain information which qualifies as the personal information of the appellant and other identifiable individuals, I will determine whether they are exempt from disclosure under section 49(b).  However, since Records 7, 17, 18, 19, 22, 30, 31, 32 and 40 contain only the personal information of individuals other than the appellant, I will review whether they are exempt under section 21(1).

Section 49(b) of the Act introduces a balancing principle.  The institution must look at the information and weigh the requester’s right of access to his or her own personal information against another individual’s right to the protection of their privacy.  If the institution determines that release of the information would constitute an unjustified invasion of the other individual’s personal privacy, then section 49(b) gives the institution the discretion to deny access to the personal information of the requester.

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 the personal privacy of the individual to whom the information relates.  Section 21(2) provides some criteria for the institution 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.

The Divisional Court has stated that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in 21(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767]. 

A section 21(3) presumption can be overcome if the personal information at issue falls under section 21(4) of the Act or if 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 [Order PO-1764].

If none of the presumptions in section 21(3) applies, 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.

The Ministry relies on the “presumed unjustified invasion of personal privacy” in sections 21(3)(a) (information relating to an individual’s medical history) and (b) (information compiled as part of a law enforcement investigation) and the factor listed under section 21(2)(f) (highly sensitive information).  The appellant relies on section 21(2)(d).  These sections state:

(2)        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,

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

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

(a)        relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

(b)        was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21 and 21.1 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

For section 23 to apply, two requirements must be met.  First, there must be a compelling public interest in disclosure of the records.  Second, this interest must clearly outweigh the purpose of the exemption [Order P-1398, upheld on judicial review in Ontario (Ministry of Finance) v. Ontario (Information and Privacy Commissioner), [1999] O.J. No. 488 (C.A.)].

In considering whether there is a “public interest” in disclosure of a record, the first question to ask is whether there is a relationship between the record and the Act’s central purpose of shedding light on the operations of government [Order P-984].  Previous orders have stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing the citizenry about the activities of their government.

A public interest will be found not to exist where the interests being advanced are essentially private in nature [Orders P-12, P-347, P-1439].

The word “compelling” has been defined in previous orders as “arousing strong interest or attention” [Order P-984].

ORDER:

I uphold the Ministry’s decision.

Original signed by:                                                                                     June 9, 2004                    

Donald Hale