The City conducted a further search and located additional records, including letters that were received from three former politicians in support of the nomination, an affidavit signed by the nominee, and a Criminal Record Check that the nominee was required to submit as part of the nomination process.  The City transferred the request for the Criminal Record Check to the Ottawa Police Services Board under section 18(3) of the Act, which allows an institution to transfer a request to another institution with a greater interest in a record.

The City then issued a revised decision letter to the appellant which provided him with full access to several records, but it continued to deny him access to other records, either in whole or in part, pursuant to sections 6(1)(b) and 14(1) of the Act. 

With respect to the part of the appellant’s request that asked for minutes of a meeting of the Commemorative Naming Committee on June 5, 2006, the City advised the mediator that no such minutes exist because the Committee did not meet on that date.

The appellant advised the mediator that he believes that additional records exist in relation to the renaming of the Orléans Recreation Complex.  Consequently, whether the City has conducted a reasonable search for responsive records, as required by section 17 of the Act, remains at issue in this appeal.

This appeal was not settled in mediation and was moved to the adjudication stage of the appeal process for an inquiry.  I started my inquiry by issuing a Notice of Inquiry to the City, which submitted representations in response.  I then sent a Notice of Inquiry to the appellant, along with a copy of the City’s representations. The appellant submitted brief representations in response.

The City has withheld portions of the records that relate to the nominee and five other individuals:  the individual who filed the nomination, another individual who assisted with the nomination, and the three former politicians who provided letters of support for the nomination.  I decided to designate these five individuals as affected parties in this appeal and sent a Notice of Inquiry to each of them. 

I received a response from two of the former politicians, who consented to the disclosure of their support letters in their entirety.  The letter sent to the third former politician was returned to this office because the address was incorrect.  I also received a response from the individual who assisted with the nomination, who objected to the disclosure of any information relating to him.  I did not receive a response from the individual who filed the nomination.

RECORDS

The records remaining at issue in this appeal are summarized in the following chart:

DISCUSSION:

PERSONAL INFORMATION

In order to determine which sections of the Act may apply, it is necessary to decide whether the records contain “personal information” and, if so, to whom it relates.  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 if 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].

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

Sections 2(2.1) and (2.2) of the Act exclude certain information from the definition of “personal information.”  These provisions state:

(2.1)  Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

(2.2)  For greater certainty, subsection (2.1) applies even if an individual carries out business, professional or official responsibilities from their dwelling and the contact information for the individual relates to that dwelling.

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 a 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 and PO-2225].

Even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual [Orders P-1409, R-980015, PO-2225 and MO-2344].

The City has withheld the name, address, telephone number, affiliation, email address and signature of the individual who filed the nomination.  This information appears on pages 1, 3 and 14 of the records at issue.  I am satisfied that all of this information falls within paragraphs (d) and (h) of the definition of “personal information” in section 2(1) of the Act.

The City has also withheld the name and family status of another individual who assisted with the nomination.  This information appears on pages 1 and 10 of the records at issue.  I am satisfied that this information falls within paragraphs (d) and (h) of the definition of “personal information” in section 2(1) of the Act.

The records at issue also contain the letters of support that were submitted by three former politicians (pages 15, 16, and 17).  Excerpts from these letters also appear in the executive summary (page 2) and the application form (pages 4, 5 and 10).  The City has disclosed parts of these support letters and the associated excerpts, to the appellant, but it has withheld the names of the three former politicians, two of their home addresses, and some of their views and opinions about the nominee. 

As noted above, two of these former politicians have consented to the full disclosure of their names and support letters.  One of these former politicians stated that, “Everything I write is available to the public” and provided a signed consent form to “ensure the release of all pertinent information.”  Another former politician telephoned this office and stated that he had “no qualms” about disclosing his support letter.

The names of these former politicians appear in the records based on a professional relationship that these individuals had with the nominee.  In my view, their names fall within section 2(2.1) of the Act and qualify as professional information, not personal information, relating to them.  Such information cannot, therefore, qualify for exemption under the personal privacy exemption in section 14(1) of the Act and must be disclosed to the appellant.

However, two of the support letters contain the home addresses of the former politicians (pages 16 and 17).  In my view, these addresses appear in a personal capacity and not in the business, professional or official capacity contemplated by sections 2(2.1) and (2.2) of the Act.  Neither of these politicians carried out their professional or official responsibilities from their dwelling.  Consequently, I find that this information falls within paragraph (d) of the definition of “personal information” in section 2(1) of the Act. 

The support letters submitted by the three former politicians also contain their views and opinions about the nominee.  The City has disclosed some of these views and opinions but not others.  It could be argued that this withheld information is professional information relating to the nominee, because these views and opinions are largely about the nominee’s professional achievements, not his personal life.  However, some of the withheld information refers to the personal characteristics that the nominee brought to his work, which, in my view, reveals something of a personal nature about him.  In short, I find that the withheld information about the nominee in the support letters falls within paragraph (g) of the definition of personal information in section 2(1) of the Act.

The City has disclosed portions of the records to the appellant containing a substantial amount of information relating to the nominee.  However, in addition to some of the three former politicians’ views and opinions about the nominee, the City has withheld the nominee’s former home address, telephone number and email address from the application form (page 3).  In addition, it has withheld his signature (page 14) and an affidavit that he signed confirming that he has not been convicted of any offences (page 43).  In my view, this information falls within paragraphs (b), (d) and (h) of the definition of “personal information” in section 2(1) of the Act.

PERSONAL PRIVACY

The City claims that the personal information relating to various individuals in the records at issue is exempt from disclosure under the personal privacy exemption in section 14(1) of the Act.  I have found that the following information, which has been withheld by the City, qualifies as “personal information”:

•         The name, address, telephone number, email address and signature of the individual who filed the nomination (pages 1, 3 and 14).

•         The name and family status of another individual who assisted with the nomination (pages 1 and 10).

•         The home addresses of two former politicians who submitted letters in support of the nomination (pages 16 and 17).

•         The three former politicians’ views and opinions of the nominee, which are found in their support letters (pages 2, 4, 5, 10, 15, 16 and 17).

•         The nominee’s former home address, telephone number, email address and signature (pages 3 and 14). 

•         The information in an affidavit signed by the nominee (page 43). 

I will now determine whether this personal information qualifies for exemption under section 14(1) of the Act.  Where a requester seeks personal information of another individual, section 14(1) prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) to (f) of section 14(1) applies.

If the information fits within any of paragraphs (a) to (f) of section 14(1), it is not exempt from disclosure under section 14.  In the circumstances, it appears that the only exception that could apply is paragraph (f).  This provision states:

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

(f) if the disclosure does not constitute an unjustified invasion of personal privacy.

The factors and presumptions in sections 14(2), (3) and (4) help in determining whether disclosure would or would not be an unjustified invasion of privacy under section 14(1)(f).

If any of paragraphs (a) to (c) of section 14(4) apply, disclosure is not an unjustified invasion of personal privacy and the information is not exempt under section 14.  In my view, none of these paragraphs in section 14(4) apply to the personal information at issue in this appeal.

If any of paragraphs (a) to (h) of section 14(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy under section 14. Once established, a presumed unjustified invasion of personal privacy under section 14(3) can only be overcome if section 14(4) or the “public interest override” at section 16 applies [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767]. 

In its decision letter to the appellant, the City cited the presumption in section 14(3)(d) (employment or educational history) of  the Act.  However, in its representations, the City states that it is no longer relying on this presumption.  In my view, none of the presumptions in paragraphs (a) to (h) of section 14(3) apply to the personal information at issue in this appeal.

If no section 14(3) presumption applies, section 14(2) lists various factors that may be relevant in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy [Order P-239].  Section 14(2) states:

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,

(a)         the disclosure is desirable for the purpose of subjecting the activities of the institution to public scrutiny;

(b)         access to the personal information may promote public health and safety;

(c)         access to the personal information will promote informed choice in the purchase of goods and services;

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

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

(f)        the personal information is highly sensitive;

(g)         the personal information is unlikely to be accurate or reliable;

(h)         the personal information has been supplied by the individual to whom the information relates in confidence; and

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

The factors in paragraphs (a), (b), (c) and (d) of section 14(2) generally weigh in favour of disclosure, while those in paragraphs (e), (f), (g), (h) and (i) weigh in favour of privacy protection (Order PO-2265).  The list of factors under section 14(2) is not exhaustive.  The institution must also consider any circumstances that are relevant, even if they are not listed under section 14(2) [Order P-99].

In their representations, none of the parties address whether any of the section 14(2) factors are relevant in determining whether disclosure of the personal information withheld by the City would constitute an unjustified invasion of the personal privacy of the individuals to whom this information relates. 

In my view, the only factor that clearly applies to some of the personal information at issue is section 14(2)(a).  This factor weighs in favour of disclosing personal information if doing so is desirable for the purpose of subjecting the activities of the institution to public scrutiny.  I find that this factor applies only to the three former politicians’ views and opinions of the nominee, which are found in their support letters (pages 2, 4, 5, 10, 15, 16 and 17).  These views and opinions clearly played a role in the City’s decision to rename the Orléans Recreation Complex as the Bob MacQuarrie Recreation Complex – Orléans.  Consequently, I find that disclosing this personal information is desirable for the purpose of subjecting the activities of the City to public scrutiny.

In my view, none of the section 14(2) factors that weigh in favour of privacy protection apply to this information.  In such circumstances, I find that the disclosure of the three former politicians’ views and opinions of the nominee would not constitute an unjustified invasion of his personal privacy, as stipulated in the exception in paragraph (f) of section 14(1).  Consequently, this information does not qualify for exemption under section 14(1) of the Act.

However, section 14(2)(a) does not apply to the remaining personal information of the nominee that appears elsewhere in the records (pages 3 and 14), nor does it apply to the home addresses of two of the former politicians, which is found on each of their support letters (pages 16 and 17).  Moreover, it does not apply to the personal information that the City has withheld relating to other individuals.  For example, it does not apply to the name, address, telephone number, email address and signature of the individual who filed the nomination (pages 1, 3 and 14).  In my view, disclosing this personal information is not desirable for the purpose of subjecting the activities of the City to public scrutiny.

Given that none of the section 14(2) factors apply to the remaining personal information that the City has withheld relating to these individuals, the exception in paragraph (f) of section 14(1) does not apply.  In such circumstances, I find that the following personal information qualifies for exemption under section 14(1):

•         The name, address, telephone number, email address and signature of the individual who filed the nomination (pages 1, 3 and 14)

•         The name and family status of another individual who assisted with the nomination (pages 1 and 10).

•         The home addresses of two former politicians who submitted letters in support of the nomination (pages 16 and 17).

•         The nominee’s former home address, telephone number, email address and signature (pages 3 and 14). 

•         The information in an affidavit signed by the nominee (page 43). 

CLOSED MEETING

Section 6(1)(b)

Section 6(1)(b) reads:

A head may refuse to disclose a record,

that reveals the substance of deliberations of a meeting of a council, board, commission or other body or a committee of one of them if a statute authorizes holding that meeting in the absence of the public.

For this exemption to apply, the institution must establish that

1.         a council, board, commission or other body, or a committee of one of them, held a meeting

2.         a statute authorizes the holding of the meeting in the absence of the public, and

3.         disclosure of the record would reveal the actual substance of the deliberations of the meeting

[Orders M-64, M-102, MO-1248]

Under part 3 of the test

•                     “deliberations” refer to discussions conducted with a view towards making a decision [Order M-184]

•                     “substance” generally means more than just the subject of the meeting [Orders M-703, MO-1344]

Section 6(1)(b) is not intended to protect records merely because they refer to matters discussed at a closed meeting.  For example, it has been found not to apply to the names of individuals attending meetings, and the dates, times and locations of meetings [Order MO-1344].

Section 6(2)(b) – exception

Section 6(2)(b) of the Act sets out an exception to section 6(1)(b).  It reads:

Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record if,

in the case of a record under clause (1)(b), the subject matter of the deliberations has been considered in a meeting open to the public;

Analysis and findings

In determining whether the minutes for the Committee meetings of March 23, 2005 and October 14, 2005 qualify for exemption under section 6(1)(b) of the Act, I will consider the three-part test set out above.

Part 1 – meeting of council, board, commission or other body, or a committee of one of them

To satisfy the first requirement of the three-part test for the section 6(1)(b) exemption, the City must establish that the Committee held a meeting or meetings.  I am satisfied that the Committee met in camera on March 23, 2005 and October 14, 2005.  Consequently, I find that the City has satisfied the first requirement of the three-part test for the section 6(1)(b) exemption.

Part 2 – statute authorizes the holding of the meeting in the absence of the public

To satisfy the second requirement of the three-part test for the section 6(1)(b) exemption, the City must establish that a statute authorized the holding of the two Committee meetings in the absence of the public.

The City states that at both meetings, the Committee passed a motion to move in camera under section 239(2)(b) of the Municipal Act and section 13(1)(b) of the City’s procedure by-law
(By-Law No. 2006-462).  It submits that each motion specifically stated that the purpose of the closed meeting was to consider the confidential minutes of each prior meeting and an agenda wherein “personal matters about an identifiable individual … will be discussed.”

The City further states that the commemorative naming application concerning Mr. MacQuarrie was one of the items on the agenda for both meetings.  It submits that the Committee was clearly dealing with “personal matters about an identifiable individual,” as contemplated by both section 239(2)(b) of the Municipal Act and section 13(1)(b) of the City’s procedure by-law.

I have carefully considered the City’s representations and reviewed the specific minutes of the two closed meetings.  For the reasons that follow, I find that the parts of the two closed meetings relating to the proposal to rename the Orléans Recreation Complex after Mr. MacQuarrie were not authorized by section 239(2)(b) of the Municipal Act.

Section 239(1) of the Municipal Act requires that all meetings be open to the public.  Section 239(2) allows a meeting or a part of a meeting to be closed to the public in certain circumstances.  Section 239(2)(b) states:

A meeting or part of a meeting may be closed to the public if the subject matter being considered is,

(b)        personal matters about an identifiable individual, including municipal or local board employees;

Section 12(1) of the City’s procedure by-law requires that meetings of Council be open to the public, subject to certain exceptions in sections 12(2) and 13 of the by-law.  Section 13(1)(b) contains similar wording to section 239(2)(b) of the Municipal Act.  This provision states:

Council may, by resolution, close a meeting or part of a meeting to members of the public if the subject matter to be considered is,

(b)        personal matters about an identifiable individual, including staff;

To satisfy the second requirement of the three-part test for the section 6(1)(b) exemption, the City must establish that a “statute” authorized the holding of the two Committee meetings in the absence of the public.  The Municipal Act is a “statute” but the City’s procedure by-law is not.  Consequently, the issue that must be determined is whether section 239(2)(b) of the Municipal Act authorized the holding of the two Committee meetings in the absence of the public.

As noted above, section 239(2)(b) refers to “personal matters about an identifiable individual.”  The term, “personal matters” is not defined in the Municipal Act, but this office has found that it is analogous to the term, “personal information” in the Municipal Freedom of Information and Protection of Privacy Act [Order MO-2368].  In my view, the purpose of section 239(2)(b) is to provide a municipal council, board or committee with the discretion to close a meeting or part of a meeting to the public to protect the privacy of an identifiable individual, but only if “personal matters” relating to that individual is the subject matter actually being considered.

I have carefully reviewed the minutes of the Committee meetings of March 23, 2005 (item 4, pages 50-51) and October 14, 2005 (item 4, page 46) that deal with the proposal to rename the Orléans Recreation Complex after Mr. MacQuarrie.  Although the Committee closed these parts of the two meetings to the public under section 239(2)(b) of the Municipal Act, no discussion of any “personal matters” relating to the nominee or any other identifiable individual took place.  Instead, the Committee discussed other matters relating to the renaming proposal.

In such circumstances, I find that section 239(2)(b) of the Municipal Act did not authorize the closing of those parts of the two Committee meetings.  Accordingly, I find that the second requirement of the section 6(1)(b) test has not been met.  Given that I have found that the City has failed to satisfy the second requirement of the three-part test, those parts of the minutes for the two Committee meetings do not qualify for exemption under section 6(1)(b) of the Act and must be disclosed to the appellant.

I note that the headings at the top of each set of minutes (pages 46 and 50) contain the name of the individual who filed the nomination.  There is no discussion of any “personal matters” relating to this individual in the minutes themselves.  However, in the previous section of this order, I found that this individual’s name qualifies for exemption under the personal privacy exemption in section 14(1) of the Act.  Consequently, I will order the City to sever this individual’s name from the headings at the top of each set of minutes.

SEARCH FOR RESPONSIVE RECORDS

The appellant claims that additional records exist with respect to the renaming of the Orléans Recreation Complex after Mr. MacQuarrie.  Consequently, it must be determined whether the City has conducted a reasonable search for responsive records, as required by section 17 of the Act.

Where a requester claims that additional records exist beyond those identified by the institution, the issue to be decided is whether the institution has conducted a reasonable search for records as required by section 17 [Orders P-85, P-221 and PO-1954-I].  If I am satisfied that the search carried out was reasonable in the circumstances, I will uphold the institution’s decision.  If I am not satisfied, I may order further searches.

The Act does not require the institution to prove with absolute certainty that further records do not exist.  However, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records [Orders P-624 and PO-2559].  To be responsive, a record must be “reasonably related” to the request [Order PO-2554].

A reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request expends a reasonable effort to locate records which are reasonably related to the request [Orders M-909, PO-2469, PO-2592].

Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, the requester still must provide a reasonable basis for concluding that such records exist [Order MO-2246].

In his representations, the appellant submits the following:

[Translation]  I do not yet have any evidence concerning the identities of the seven or eight people who supported the proposal form, nor each person’s reasons for his or her support.

I do not have any evidence either as to why or by whom the proposal application was withdrawn and filed on June 5, 2006.

The City submits that it conducted a reasonable search for responsive records, as required by section 17 of the Act.  It provided a sworn affidavit from a policy and project coordinator for the City Clerk that sets out the search efforts that were undertaken to locate records responsive to the appellant’s request.  In paragraph 3 of her affidavit, this individual states that no minutes exist with respect to a meeting of Commemorative Naming Committee on June 5, 2006, because the Committee did not meet on that date.

I have carefully considered the parties’ representations.  In my view, the appellant has not provided sufficient evidence to support his claim that the City received and considered support letters from seven or eight individuals.  Based on my review of the records at issue, particularly the application form, it appears that only three former politicians submitted letters to support the proposal to rename the Orléans Recreation Complex after Mr. MacQuarrie.  There is no indication that any other individuals submitted support letters that were considered by the Committee.

With respect to the part of the appellant’s request that asks for the minutes of a meeting of Commemorative Naming Committee on June 5, 2006, the City has clearly stated that no such minutes exist because the Committee did not meet on that date.  I accept the City’s explanation and am satisfied that no such minutes exist.  In addition, the appellant has not provided me with adequate evidence to explain why additional records should exist relating to his claim that the renaming proposal was withdrawn on June 5, 2006.

In my view, the City has demonstrated that an experienced employee expended reasonable efforts to locate records which are reasonably related to the appellant’s request.  The appellant has not provided me with sufficient evidence to support a finding that additional responsive records exist.  In short, I find that the City has conducted a reasonable search for responsive records, as required by section 17 of the Act.

ORDER:

1.         I order the City to disclose the names of the three former politicians and their views and opinions about the nominee, which are found in the executive summary (page 2), the application form (pages 4, 5 and 10) and their support letters (pages 15, 16 and 17).

2.         I uphold the City’s decision to withhold the following personal information from the records at issue:

•                     The name, address, telephone number, email address and signature of the individual who filed the nomination (pages 1, 3 and 14).

•                     The name and family status of another individual who assisted with the nomination (pages 1 and 10).

•                     The home addresses of two former politicians who submitted letters in support of the nomination (pages 16 and 17).

•                     The nominee’s former home address, telephone number, email address and signature (pages 3 and 14). 

•                     The information in an affidavit signed by the nominee (page 43). 

3.         I order the City to disclose the minutes of the Commemorative Naming Committee’s in camera meetings of March 23, 2005 (item 4, pages 50-51) and October 14, 2005 (item 4, page 46) that deal with the proposal to rename the Orléans Recreation Complex after
Mr. MacQuarrie.  However, I also order the City to sever the name of the individual who filed the nomination from the headings of each set of minutes.

4.         I have provided the City with a copy of pages 1 to 17, 46, 50 and 51 of the records at issue.  I have highlighted in green those portions of the records that must not be disclosed to the appellant because they are either exempt from disclosure under section 14(1) of the Act or are not responsive to his request.  To be clear, the City must disclose the non-highlighted portions of these records to the appellant.

5.         I order the City to disclose these records to the appellant by December 4, 2009 but not before November 27, 2009.

6.         I uphold the City’s search for responsive records.

7.         I remain seized of any compliance issues that may arise with respect to this order.

Original signed by:____________                                                           October 30, 2009              

Colin Bhattacharjee

Adjudicator