ORDER PO-4058

Appeal PA19-00086

Ministry of Children, Community and Social Services

July 30, 2020

Summary: The Ministry of Children, Community and Social Services (the ministry) received a request under the Freedom of Information and Protection of Privacy Act  (the Act ) for access to all ministry records relating to the requester. The ministry granted full access to 265 pages of responsive records, and granted partial access to one page with severances under the personal privacy exemption in section 49 (b) of the Act . The requester appealed the ministry’s access decision and also maintained that additional responsive record should exist. In this order, the adjudicator upholds the reasonableness of the ministry’s search and its decision to withhold portions of the record under section 49 (b).

Statutes Considered: Freedom of Information and Protection of Privacy Act , RSO 1990, c F31, sections 2(1)  (definition of “personal information”), 21(1), 24, and 49(b).

OVERVIEW:

[1]  The Ministry of Children, Community and Social Services (the ministry) received a multi-part request under the Freedom of Information and Protection of Privacy Act  (the Act ) for all information relating to the requester. Specifically, the requester sought:

[…] a copy of ALL [records] that Ministry of Children, Community & Social Services (mcss) has regarding me, in all forms you have it in, i.e. unaltered NOTES, videos, pictures, images, scans, texts, emails, letters, notes, documents, telephone conversations, voice recordings, etc.

Response must include, but not [be] limited to, all you have related to my landlord [named person], and me, in all forms (detailed above), you have it in i.e. […]

[2]  Appended to the request was a 60-point list setting out additional details regarding the type of information that the requester sought.

[3]  The requester subsequently sent a number of letters to the ministry setting out additional details that were to be included in the request.

[4]  The ministry issued a decision letter advising that it had interpreted the requester’s multi-part request and subsequent clarifications to be a request for “any and all ministry records which pertain to” the requester. The ministry located 266 pages of responsive records and granted full access to 265 of those pages. Severances were made to one page of the records, based on the mandatory personal privacy exemption at section 21  of the Act .

[5]  The requester appealed the ministry’s decision to this office. During the mediation stage of the appeal, the ministry clarified that the severances were made based on the discretionary personal privacy exemption in section 49 (b) of the Act . The mediator discussed the nature of this exemption with the appellant, who said that she was seeking access to the withheld information.

[6]  The appellant also informed the mediator that she believes that there are additional records responsive to her request. The ministry provided the mediator with the details of their search efforts and maintained that there are no additional records responsive to the appellant’s request. The mediator conveyed this information to the appellant, who continued to believe that additional records should exist.

[7]  A mediated resolution was not achieved and the appeal was transferred to the adjudication stage. I decided to conduct an inquiry under the Act , which I began by inviting and receiving written representations from the ministry responding to the issues set out in the Notice of Inquiry. The ministry’s representations were shared with the appellant, [1] along with the Notice of Inquiry. The appellant did not provide representations for my consideration.

[8]  For the reasons that follow, I uphold the ministry’s decision to deny access to portions of the one record remaining at issue, based on the discretionary personal privacy exemption in section 49(b). I also find that the ministry has conducted a reasonable search for records responsive to the appellant’s request, as required under the Act .

RECORD:

[9]  The record at issue is a single page containing a table outlining freedom of information requests that were received by the ministry from Ontario Disability Support Program (ODSP) recipients in the Toronto area.

ISSUES:

1. Does the record contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
2. Does the discretionary exemption at section 49(b) apply to the information at issue?
3. Did the ministry exercise its discretion under section 49(b)? If so, should this office uphold the exercise of discretion?
4. Did the ministry conduct a reasonable search for records?

DISCUSSION:

Issue A: Does the record contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?

[10]  The ministry has severed information from the record based on the personal privacy exemption at section 49 (b) of the Act . Before deciding whether the personal privacy exemption applies, it is necessary to determine whether the record contains “personal information” and, if so, to whom it relates.

[11]  “Personal information” is defined in section 2(1)  of the Act  as “recorded information about an identifiable individual” that fits within the list of examples provided in paragraphs (a) to (h). The list of examples under section 2(1) is not exhaustive; information that does not fall under paragraphs (a) to (h) may still qualify as personal information. [2]

[12]  Exceptions to the definition of personal information exist for information about individuals that have been deceased for more than 30 years, [3] and for information that would identify an individual in a business, professional, or official capacity. [4] However, even when information relates to an individual in a business, professional, or official capacity, it may still qualify as personal information if it reveals something of a personal nature about the individual. [5]

[13]  To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [6]

Representations

[14]  The ministry relies on paragraphs (c) and (h) of the definition of “personal information” in section 2(1)  of the Act . These paragraphs read:

“personal information” means recorded information about an identifiable individual, including,

(c) any identifying number, symbol or other particular assigned to 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.

[15]  The ministry explains that the record contains the first and last names of ODSP recipients and their ODSP member identification numbers. According to the ministry, this information identifies individuals as recipients of social assistance, and therefore identifies them in a personal, and not professional capacity.

[16]  The ministry also says that it has no information that would lead it to believe that any of the individuals to whom the information relates has been deceased for more than 30 years.

Analysis and findings

[17]  The record at issue consists of a table listing the freedom of information requests made to the ministry by ODSP recipients in the Toronto area. The table includes ODSP recipients’ first and last names, their assigned ODSP member identification numbers, and the local ODSP office responsible for their file.

[18]  Based on my review of the record and the ministry’s submissions, I find that the record contains the appellant’s first and last name, as well as her ODSP member number. In my view, this information relates to the appellant in a personal capacity and, therefore, constitutes the appellant’s personal information under paragraphs (c) and (h) of the definition in section 2(1).

[19]  I also find that the record contains other ODSP recipients’ full names and member numbers, which constitute those individuals’ personal information under paragraphs (c) and (h) of the definition in section 2(1).

[20]  I accept the ministry’s submission that none of the exceptions to the definition of “personal information” applies in the circumstances.

[21]  Having found that the record contains both the appellant and other identifiable individuals’ personal information, I will consider whether the personal privacy exemption in section 49(b) applies to the withheld portions of the record.

Issue B: Does the discretionary exemption at section 49(b) apply to the information at issue?

[22]  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 exemptions from this right.

[23]  Under section 49(b), where a record contains personal information of both the requester and another individual, and disclosure of the information would be an “unjustified invasion” of the other individual’s personal privacy, the institution may refuse to disclose that information to the requester. Since the section 49(b) exemption is discretionary, the institution may also decide to disclose the information to the requester. [7]

[24]  Sections 21(1) to (4) provide guidance in determining whether disclosure would be an unjustified invasion of personal privacy.

[25]  If the information fits within any of paragraphs (a) to (e) of section 21(1) or paragraphs (a) to (d) of section 21(4), disclosure is not an unjustified invasion of personal privacy and the information is not exempt under section 49(b). The submissions before me do not address paragraphs (a) to (e) of section 21(1) or paragraphs (a) to (d) of section 21(4); however, having reviewed the record, I am satisfied that they are not applicable in the circumstances of this appeal.

[26]  Sections 21(2) and (3) also help in determining whether disclosure would be an unjustified invasion of personal privacy under section 49(b). For records claimed to be exempt under section 49(b), this office will consider, and weigh, the factors and presumptions in sections 21(2) and (3) and balance the interests of the parties in determining whether disclosure of the personal information in the records would be an unjustified invasion of personal privacy. [8]

Representations

[27]  The ministry maintains that disclosing the withheld portions of the record would constitute an unjustified invasion of other individuals’ personal privacy based on the presumption in section 21(3)(c), which states:

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

(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels.

[28]  According to the ministry, an individual’s name, together with information revealing the fact that are in receipt of social assistance benefits, is sufficient to satisfy this presumption. The ministry also maintains that the withheld information is sensitive in nature, as disclosing it would identify individuals as recipients of social assistance. Accordingly, the ministry submits that disclosure would be a presumed unjustified invasion of personal privacy.

Analysis and findings

[29]  Based on my review of the ministry’s submissions and record at issue, I agree with the ministry that the withheld portions of the record are exempt from disclosure under section 49 (b) of the Act .

[30]  Specifically, I find that the withheld personal information relates to other individuals’ eligibility for social assistance benefits, namely those provided under ODSP, such that its disclosure would be a presumed unjustified invasion of personal privacy under section 21(3)(c). Accordingly, I find that the presumption in section 21(3)(c) applies and weighs in favour of not disclosing the personal information of other identifiable individuals to the appellant.

[31]  However, this finding alone does not end my analysis. As mentioned above, for records claimed to be exempt under section 49(b), this office will consider, and weigh, the factors and presumptions in sections 21(2) and (3) and balance the interests of the parties in determining whether disclosure of the personal information in the records would be an unjustified invasion of personal privacy. [9] The factors that may be relevant in this exercise are set out in paragraphs (a) to (i) of section 21(2), although this list is not exhaustive. Other relevant circumstances must be considered, even if they are not listed under section 21(2). [10] Generally speaking, the factors in paragraphs (a) to (d) weigh in favour of disclosure, while the factors in paragraphs (e) to (i) weigh in favour of privacy protection. [11]

[32]  Although the appellant did not provide representations, I have considered whether any of the section 21(2) factors favouring disclosure apply. Based on the information available to me, I find that there are no factors favouring disclosure of the withheld personal information. Given this conclusion, it is not necessary for me to make a finding on the privacy-protecting factors in section 21(2)(e) to (i) in order to determine that the information is exempt under section 49(b).

[33]  As the presumption in section 21(3)(c) applies and weighs against disclosing the withheld personal information, and no factors favouring disclosure have been established, I find that the exemption in section 49(b) applies. Therefore, I find that the withheld personal information is exempt from disclosure under section 49(b), subject to my review of the ministry’s exercise of discretion, below.

Issue C: Did the ministry exercise its discretion under section 49(b)? If so, should this office uphold the exercise of discretion?

[34]  The section 49(b) exemption is discretionary and permits an institution to disclose information, despite the fact that it could withhold it. An institution must exercise its discretion. On appeal, the Commissioner may determine whether the institution failed to do so.

[35]  In addition, the Commissioner may find that the institution erred in exercising its discretion where, for example, it does so in bad faith or for an improper purpose, it takes into account irrelevant considerations, or it fails to take into account relevant considerations.

[36]  In either case, this office may send the matter back to the institution for an exercise of discretion based on proper considerations. [12] Pursuant to section 54(2), however, this office may not substitute its own discretion for that of the institution.

Relevant considerations

[37]  Relevant considerations may include those listed below. However, not all those listed will necessarily be relevant, and additional unlisted considerations may be relevant: [13]

• the purposes of the Act , including the principles that
• information should be available to the public
• individuals should have a right of access to their own personal information
• exemptions from the right of access should be limited and specific
• the privacy of individuals should be protected
• the wording of the exemption and the interests it seeks to protect
• whether the requester is seeking his or her own personal information
• whether the requester has a sympathetic or compelling need to receive the information
• whether the requester is an individual or an organization
• the relationship between the requester and any affected persons
• whether disclosure will increase public confidence in the operation of the institution
• the nature of the information and the extent to which it is significant and/or sensitive to the institution, the requester or any affected person
• the age of the information
• the historic practice of the institution with respect to similar information.

[38]  The ministry submits that its application of the exemption in section 49(b) balances the Act ’s dual objectives under section 1. In particular, the ministry maintains that its exercise of discretion was “tempered, undertaken in good faith, and took into account relevant considerations.”

[39]  The ministry notes that the appellant requested access to her own personal information, and that she has been granted access to her personal information in the record at issue. According to the ministry, the only personal information that has been withheld is that which relates to individuals other than the appellant. The ministry submits that in disclosing the appellant’s personal information, but withholding that of other individuals, it sought to balance the appellant’s right of access with other ODSP recipients’ right to privacy. As such, the ministry submits that its exercise of discretion should be upheld on appeal.

[40]  In light of the ministry’s submissions and the nature of the personal information to which I have found section 49(b) applies, I am satisfied that the evidence supports a finding of a proper exercise of discretion by the ministry under section 49(b). Accordingly, I see no basis to interfere with the ministry’s exercise of discretion on appeal.

Issue D: Did the ministry conduct a reasonable search for records?

[41]  During discussions with the mediator, the appellant maintained that additional responsive records should exist beyond the 266 that were identified and located by the ministry.

[42]  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 24. [14] 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.

[43]  The Act  does not require the institution to prove with absolute certainty that further records do not exist. However, it must provide sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records. [15] To be responsive, a record must be "reasonably related" to the request. [16]

[44]  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. [17] A further search will be ordered if the institution does not provide sufficient evidence to demonstrate that it has made a reasonable effort to identify and locate all of the responsive records within its custody or control. [18]

[45]  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. [19] A requester’s lack of diligence in pursuing a request by not responding to requests from the institution for clarification may result in a finding that all steps taken by the institution to respond to the request were reasonable. [20]

Representations

[46]  The ministry submits that the search undertaken in response to the appellant’s request meets the requirements of section 24  of the Act . In support of this position, the ministry provided affidavit evidence from the following individuals:

• The ministry’s freedom of information policy analyst who is responsible for coordinating and processing access to information requests, including the one at issue in this appeal (the policy analyst);
• A freedom of information policy analyst with the ministry, who was formerly a communications and issues coordinator at the Assistant Deputy Minister’s Office of the Social Assistance Programs Division of the ministry (the former communications and issues coordinator);
• A manager, who is a former caseworker, in an ODSP office (the former ODSP caseworker);
• An ODSP manager with the Social Assistance Delivery Branch of the ministry (the ODSP manager); and
• A manager with the Client Services & Support Disability Adjudication Unit (DAU), Social Assistance Central Services Branch of the ministry (the DAU manager).

[47]  In each affidavit, the affiants provide information about their experience and qualifications before describing the particular records they were asked to look for, the file management systems that they searched, the methods they employed in searching those systems, and the results of their searches.

Policy analyst’s affidavit

[48]  The policy analyst responsible for coordinating the response to the appellant’s request attests to having knowledge of the ministry’s information management practices as they relate to the request, as well as the steps that were taken in searching for responsive records. He explains that upon receiving the appellant’s request and subsequent clarifications, he delegated the search to a number of individuals who would be best suited for searching various locations for records responsive to the request. In particular, he asked:

• an executive advisor to the Assistant Deputy Minister for Social Assistance Programs to search for any records arising from the appellant’s correspondence with the Assistant Deputy Minister’s office; [21]
• a former caseworker at an ODSP office to search for any handwritten or email notes relating to the appellant; [22]
• An ODSP freedom of information administrative assistant for the Toronto region to locate and provide a complete copy of the appellant’s ODSP file; [23] and
• a client services advisor of the ODSP DAU to search for any records relating to the determination of the appellant’s eligibility for ODSP. [24]

[49]  In addition to the searches that were delegated, the policy analyst attests to having personally searched the ministry’s Access and Privacy Office (APO) for records relating to the appellant’s previous access requests and appeals. In doing so, he searched the APO’s database (NORDAT) using the appellant’s first and last name, and located one previous request. Using the log number associated with that request, the policy analyst retrieved all records relating to the request from the APO’s shared drive. He also searched the shared drive for records relating two previous appeals that were made by the appellant. The policy analyst says that these records included correspondence sent to or from the appellant, emails between the APO and ODSP with respect to requests for copies of responsive records, and copies of the records that were disclosed to the appellant in response to previous requests or appeals.

Former communications and issues coordinator’s affidavit

[50]  The former communications and issues coordinator attests to having been responsible for coordinating and processing requests that came into the Assistant Deputy Minster’s Office (ADMO) of the Social Assistance Programs Division of the ministry. She explains that this included processing information requests that were requested of the ADMO by the APO, as well as responding to inquiries and calls from members of the public (or MPPs acting on their behalf).

[51]  She says that when members of the public contact the ministry regarding an ODSP client matter, the ADMO is tasked with responding. The ADMO assigns the matter to the appropriate regional office using SharePoint, which is a database that allows users to open and assign tasks, track records associated with tasks, record responses to tasks, and attach responses to emails in Microsoft Outlook in order to respond to inquiries. According to the former communications and issues coordinator, the ADMO does not maintain client-level information outside of SharePoint and Outlook.

[52]  The former communications and issues coordinator attests to searching all of her Outlook email folders for records responsive to the appellant’s request using the appellant’s first name, last name, and initials in various combinations. She says that the scope of her search dates back to October 2014, when she first joined the department, but excluded June 2017 to February 2018, when she was on secondment.

[53]  The former communications and issues coordinator also attests to searching the SharePoint database using the appellant’s first name, last name, and initials. She says that she was advised by the ministry’s freedom of information policy analyst that the appellant has been in receipt of ODSP since 2016, and that her application was received in late 2015. She says that because the ADMO has been using SharePoint since 2013, any records at the ADMO relating to the appellant would be contained in the database.

[54]  According to the former communications and issues coordinator, neither search located any responsive records.

Former ODSP caseworker’s affidavit

[55]  The former ODSP caseworker attests to having knowledge of the processes respecting the maintenance of records relating to the case management and administration of ODSP to clients. He explains that client information is maintained by the ministry in both paper and electronic client files, which are organized by client names and member identification numbers. The paper file contains documents received by the ministry in the administration of social assistance, including correspondence, while the electronic file [25] includes case notes generated by ministry staff, and other information relevant to the delivery of social assistance. In addition to the paper and electronic files, the former ODSP caseworker says client information may be located in caseworkers’ Microsoft Outlook emails, but that the ministry’s local ODSP offices do not maintain client information outside of those locations.

[56]  The former ODSP caseworker attests to searching for responsive email records using the appellant’s first and last name, member identification number, and email address. He says that although he searched his inbox, sent and deleted folders, as well as a secure email portal, he did not locate any responsive records.

ODSP manager's affidavit

[57]  The ODSP manager attests to being responsible for overseeing freedom of information requests for a particular regional ODSP office at the time of the request at issue in this appeal. As such, she says that she is aware of the business processes respecting the maintenance of records and responding to access requests for ODSP case files in that particular office.

[58]  The ODSP manager explains that the ministry maintains client information in paper and electronic formats. She says that the electronic file is generated and stored on the ministry’s Social Assistance Management System (SAMS), and includes case notes prepared by ministry staff, and other information relevant to the delivery of social assistance. The ODSP manager notes that client information may also be found in the Service Delivery Model Technology (SDMT), which was the system employed prior to SAMS being implemented in 2014. However, the ODSP manager says that no responsive records would be located in SDMT, because the transition to SAMS predates the appellant’s initial receipt of ODSP in 2016.

[59]  The ODSP manager attests that the search for responsive records was carried out by the administrative support clerk responsible for storing and maintaining the appellant’s ODSP client file. In conducting the search, the clerk located the appellant’s paper file at the ODSP regional office and printed off “all responsive case notes” from SAMS. According to the ODSP manager, these records were sent to the freedom of information administrative assistant for the Toronto region, who shared them with the ministry’s freedom of information policy analyst.

DAU manager’s affidavit

[60]  The DAU manager attests to being responsible for the overall administrative management of medical adjudication at the DAU, including requests of information relating to ODSP. Therefore, she says is aware of the record keeping processes at the DAU.

[61]  The DAU manager explains that when the ministry collects client information for the purpose of determining whether a person meets the definition of “person with a disability” under the Ontario Disability Support Program Act [26] (ODSPA), that information is maintained in the DAU client files in paper and electronic formats. The paper file contains applications to the DAU, consents to release medical information, and any medical reports provided to the DAU. The electronic file is maintained on the ministry’s Disability Adjudication Database (DAD), although information may also be found in the predecessor system, the DAU Tracking Tool. According to the DAU manager, these databases include DAU application history, related case notes, and decision outcomes that have been inputted and updated by DAU staff.

[62]  In addition to DAD and the DAU Tracking Tool, the DAU manager explains that information confirming ODSP referral information may also be found in SAMS, the Social Assistance Legacy Information Database (SALI), which contains archival data from the SDMT, and the Client Information Management System (CIMS), which is another predecessor database. These databases include client information pertaining to DAU referral history, application history, related case notes, and decision outcomes.

[63]  According to the DAU manager, the DAU does not maintain client-level information outside of the paper file, DAD, the DAU Tracking Tool, SAMS, or a predecessor of SAMS, and all of the above-mentioned databases are searchable by surname and unique member identification numbers.

[64]  The DAU manager attests that two client service advisors at the DAU conducted a search for responsive records by querying the DAD, SALI, CIMS, SAMS, and the DAU Tracking Tool databases using the appellant’s first name, middle name, and last name, member identification number, birth date, address, social insurance number, and health card number. The search located the appellant’s inactive DAU file, which was provided to the ministry’s freedom of information policy analyst.

Analysis and findings

[65]  The ministry’s representations and extensive affidavit evidence establish that the ministry’s search effort involved individuals with varied specializations and from various program areas within the administration of the ministry’s ODSP program. Having considered the experience and qualifications of those individuals, I am satisfied that the ministry’s search was coordinated and carried out by experienced employees who are knowledgeable in the subject matter of the request.

[66]  Moreover, the individuals involved in the ministry’s search attest to searching numerous electronic databases, email folders, and paper files using key terms that could reasonably be thought to generate responsive records. The Act  does not require the ministry to prove with absolute certainty that further records do not exist; it only requires that the search be reasonable. Based on the evidence, I accept that the ministry made a reasonable effort to identify and locate records that are reasonably related to the appellant’s request.

[67]  Finally, in objecting to the reasonableness of the ministry’s search, the appellant is required to provide a reasonable basis for concluding that other responsive records exist beyond those that have been identified and located by the ministry. [27] In this case, I find that the appellant has not done so. Because the appellant did not provide representations in response to the Notice of Inquiry, the only information before me from the appellant is that she believes the ministry’s search was insufficient and should have located additional responsive records. Without more information - about what other records might reasonably be thought to exist or where such records may be located, for example - I find that there is no reasonable basis for concluding that additional responsive records exist but have not yet been identified and located by the ministry.

[68]  Accordingly, for these reasons, I am satisfied and I find that the ministry has conducted a reasonable search in accordance with the requirements of the Act .

ORDER:

1. I uphold the ministry’s decision to withhold portions of the record based on the personal privacy exemption in section 49(b).
2. I uphold the ministry’s search as reasonable.

Original signed by		July 30, 2020
Jaime Cardy
Adjudicator