Access to Information Orders
Decision Information
In Order PO-2109, I reviewed a decision issued by the Ontario Rental Housing Tribunal (the Tribunal) in response to a request under the Freedom of Information and Protection of Privacy Act (the Act) for the production of a weekly list consisting of “... all names, addresses, hearing dates and the location of the hearing of tenants whose landlords, in the future, file an application to evict with the Tribunal.”
During the course of that appeal, it was brought to my attention that the Tribunal had a practice of disclosing “custom reports” to commercial clients outside of the Act. The reports were frequently disclosed under terms outlined in Memoranda of Understanding between the Tribunal and the individual requesters but were also disclosed in response to individual requests for select information contained in various application files. These reports were provided to a number of requesters on a regular basis.
The reports that I reviewed during the course of that previous appeal appeared to contain the personal information of individuals (names, addresses, dates and locations of eviction proceedings) other than the requesters. After conducting an inquiry, I found that the information at issue qualified as “personal information” as that term is defined in section 2(1) of the Act, and that none of the exceptions to the mandatory section 21 exemption dealing with this type of information were present. Therefore, I required the Tribunal to withhold access. As a postscript to Order PO-2109, I stated that agreements of that nature “cannot take precedence over the Act in circumstances where the personal information at issue qualifies under the mandatory section 21 exemption claim.” I urged the Tribunal to review its policy of providing personal information of tenants and to take whatever steps were required to ensure that any such disclosure is made in accordance with the Act.
In response to Order PO-2109, the Tribunal rescinded its outstanding Memoranda of Understanding for “custom reports” and denied subsequent requests under the Act for information contained in Tribunal application files.
Decision Content
BACKGROUND:
In Order PO-2109, I reviewed a decision issued by the Ontario Rental Housing Tribunal (the Tribunal) in response to a request under the Freedom of Information and Protection of Privacy Act (the Act) for the production of a weekly list consisting of “… all names, addresses, hearing dates and the location of the hearing of tenants whose landlords, in the future, file an application to evict with the Tribunal.”
During the course of that appeal, it was brought to my attention that the Tribunal had a practice of disclosing “custom reports” to commercial clients outside of the Act. The reports were frequently disclosed under terms outlined in Memoranda of Understanding between the Tribunal and the individual requesters but were also disclosed in response to individual requests for select information contained in various application files. These reports were provided to a number of requesters on a regular basis.
The reports that I reviewed during the course of that previous appeal appeared to contain the personal information of individuals (names, addresses, dates and locations of eviction proceedings) other than the requesters. After conducting an inquiry, I found that the information at issue qualified as “personal information” as that term is defined in section 2(1) of the Act, and that none of the exceptions to the mandatory section 21 exemption dealing with this type of information were present. Therefore, I required the Tribunal to withhold access. As a postscript to Order PO-2109, I stated that agreements of that nature “cannot take precedence over the Act in circumstances where the personal information at issue qualifies under the mandatory section 21 exemption claim.” I urged the Tribunal to review its policy of providing personal information of tenants and to take whatever steps were required to ensure that any such disclosure is made in accordance with the Act.
In response to Order PO-2109, the Tribunal rescinded its outstanding Memoranda of Understanding for “custom reports” and denied subsequent requests under the Act for information contained in Tribunal application files.
NATURE OF THE APPEAL:
The Tribunal received a request under the Act for an updated report detailing information contained in Above Guideline Rent Increase applications (AGI applications) currently active at the Tribunal. Specifically, the request was for:
- application file numbers
- addresses of the rental units to which the applications apply
- the number of affected units for each application
- date of hearing for each application
- date of filing of each application
The Tribunal identified the responsive records and denied access to all of the information under section 21(1) of the Act (invasion of privacy). In its decision letter the Tribunal stated:
In light of the IPC decision [Order PO-2109], I believe the information you are requesting is personal under [the Act]. The information still includes the address of the building, which allows you to contact tenants at their homes, even without their names (for example, by addressing a letter to “occupant”). Given that this contact would be initiated based on your knowledge that they are a respondent to a Tribunal application, I believe contacting them in that manner would constitute an unjustified invasion of personal privacy pursuant to section 21 of [the Act].
The requester, now the appellant, appealed the Tribunal’s decision.
Mediation was not successful, and the appeal was transferred to the adjudication stage.
I initiated my inquiry by sending a Notice of Inquiry to the appellant setting out the issues and seeking representations. The appellant responded with representations. I then asked for and received documentation from the Tribunal on the processes and practices relating to the collection, use and disclosure of file related information.
RECORDS:
The record at issue in this appeal is a report compiled from information contained on the AGI applications. I have reviewed a sample of an AGI report previously provided by the Tribunal to the appellant in response to a similar request. The sample report contains all of the information at issue in this appeal. The Tribunal has also provided me with a sample AGI application file. While the AGI application forms contain the names of tenants that are parties to the applications, as well detailed information about the circumstances surrounding the applications themselves, the information sought by the appellant here is limited to the following:
• the file numbers of all active AGI files
• the filing dates
• the addresses to which the applications relate
• the number of units affected by the application
• the hearing dates
As the appellant makes clear in its representations, it does not want access to names, telephone numbers, amounts of rent paid or owed, or any other specific details about the application.
DISCUSSION:
PERSONAL INFORMATION
General principles
The section 21 personal privacy exemption applies only to information that qualifies as “personal information” as defined in section 2(1) of the Act. “Personal information” is defined, in part, as follows:
“personal information” means recorded information about an identifiable individual, including,
…
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, telephone number, fingerprints or blood type of the individual,
…
(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;
To qualify as personal information, the information must be about the individual in a personal capacity. As a general rule, information associated with an individual in their professional, official or business capacity will not be considered to be “about” the individual [Orders P-257, P-427, P-1412, P-1621, R-980015, MO-1550-F, PO-2225].
In addition, 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.)].
Appellant’s representations
The appellant submits that the information at issue in this appeal is distinguishable from the information covered by Order PO-2109:
Our request is quite distinguishable from Order PO-2109. We ask for no names. We ask for no telephone numbers. We do not ask for the rent being paid. We do not ask for information concerning the parties such as rent arrears. We do not seek details of the application or the basis of the application. We do not seek the right to view any files pursuant to this request.
The appellant further submits that the information is not personal information as defined by section 2(1) of the Act:
Only clause 2(1)(c) and 2(1)(d) could possibly be distorted in meaning to remotely be construed as personal. A residential address is requested, but without individual personal information. From the information requested, we could not know that Mary Jones lives at 123 Smith Street, Apartment 101. We would know that unidentified tenants living at 123 Smith are facing an above guideline rent increase. We are not requesting specific apartment numbers and no telephone numbers.
We also wish to address the Tribunal “concern”, that we could use the information to write to tenants of the building as “dear occupant”. Unless the tenant actually has the name “Occupant”, this concern is ridiculous. Further, the Tribunal is well aware of how we use the information. The information is used to benefit tenants (without cost to them). The landlord (the applicant to the Tribunal) already has the information.
In its representations, the appellant also provides further detail on why the information is being requested:
The information requested is not otherwise published. The fact that a landlord has applied for an above guideline increase must only be disclosed to an affected tenant 30 days in advance of a hearing as part of the notice of hearing. A landlord need only notify an individual tenant of any rent increase pursuant to the Tenant Protection Act. This is at a point 90 days prior to that tenant’s rent increase.
In other words, tenants are not made aware of an Above Guideline Rent Increase application at the time the application is made. Our intent is to have a way of being aware on a general basis that an application has been made to the Tribunal. Our mandate is to educate and inform tenants (generally) as to their rights and obligations pursuant to the Act. More specifically, we have a contract with the City of Toronto pursuant to the Toronto Tenant Defence Fund to assist tenants who wish to dispute above guideline rent increase applications.
For example, let us assume an application at 123 Smith Street affecting 150 units and with a hearing scheduled for forty-five days from now. The tenants would not be aware of any pending application except for forty-five days from now. The tenants would not be aware of any pending application except for those who had received a notice of rent increase above the guideline. In that case, those tenants would only be aware that an application would be necessary. Our request permits us as a Tenant Advocacy organization to be aware of applications (not personal information), and to target our services to those in need without cost to them.