ORDER PO-4518

Appeals PA22-00208 and PA22-00209

University of Toronto

May 16, 2024

Summary: The University of Toronto (the university) received two requests under the Act  for records related to the appellant’s interactions with the university and its staff.

The university denied access to the records in full, claiming the exclusion at section 65(6)3 (employment or labour relations) applies to an internal investigative report about an employee and emails about the report and the exemption at section 49(a) (discretion to refuse requester’s own information), read with section 20 (threat to safety or health), applies to the remaining records, which are emails and reports.

In this order, the adjudicator upholds the university’s decision that the investigative report and emails about the report are excluded from the scope of the Act  by reason of section 65(6)3. She also upholds the university’s decision that the remaining records are exempt by reason of section 49(a), read with section 20.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, sections 2(1)  (definition of personal information), 20, 49(a), and 65(6)3.

OVERVIEW:

[1] This order considers the requester’s right of access to records regarding his interactions with university staff. This order also considers whether there is a reasonable basis for concluding that the safety or health of an individual could be seriously threatened were other records about the requester’s interactions with the university and its staff are disclosed.

[2] The University of Toronto (UT or the university) received two requests under the Freedom of Information and Protection of Privacy Act  (FIPPA  or the Act ) from the same requester. The first request was for a particular report relating to the requester and university staff. Specifically, the requester sought access to:

… a copy of [Campus Safety] Report UT[#] from June 10, 2017, as it relates to [the requester’s] emotional and psychological abuse by staff at [the university’s] Hart House [fitness centre] and their cover-up by higher authorities there since that time.

[3] The university denied access to 8 pages of campus safety reports, in full, under section 49(b) (personal privacy) and section 49(a) (discretion to refuse requester’s own information), read with sections 14(1)(e) (endanger life or safety) and 20 (threat to safety or health) of the Act .

[4] In the second request, the requester sought access to other records about the investigation undertaken by the university about the requester’s interaction with the university’s Hart House staff. In this request, the requester provided some context for his request explaining that “without being clearly informed and without questioning me, [the] Hart House Fitness Centre [manager] conducted an investigation into me the outcome of which was deliberately never disclosed to me.” As a result, the requester sought access to:

… any documents at Hart House Fitness Centre or emails among staff pertaining to me because I think they were used to secretly conduct a conspiracy against me to spy on me, discriminate against me, and socially isolate me by telling staff and alumni not to speak with me.

[5] In response, the university located 359 pages of email records and denied access to all of them under section 49(b) and section 49(a) (discretion to refuse requester’s own information) read with sections 19 (solicitor-client privilege), 20, and 14(1)(e) of the Act .

[6] The requester (now the appellant) appealed both decisions to the Information and Privacy Commissioner (the IPC) and two appeal files were opened. A mediator was assigned to attempt a resolution of both appeals.

[7] During mediation, the university claimed, for the first time, that some of the records were excluded from the scope of the Act  by way of section 65(6)3 (employment or labour relations). It confirmed that for those records, it continues to reply upon sections section 49(b), and section 49(a), read with sections with 20 and 14(1)(e), in the alternative.

[8] The appellant informed the mediator that he was not interested in obtaining access to any emails sent by him to the university and the university’s replies to those emails. Accordingly, these emails are not at issue.

[9] As no further mediation of the appeals was possible, they moved to the adjudication stage where an adjudicator may conduct an inquiry. I decided to conduct one inquiry for both appeals. I sought representations from the university initially.

[10] The university provided extensive representations, which were withheld from the appellant as confidential, however, in consultation with the university, portions of them are being referred to in this order. The appellant provided representations in response to the Notice of Inquiry sent to him.

[11] In this order, I uphold the university’s decision that some of the records are excluded by reason of section 65(6)3. I also uphold its decision that the remaining records are exempt by reason of section 49(a), read with section 20.

RECORDS:

Appeal PA22-00208 (university file 22-0026)

[12] At issue in this appeal are 8 pages of general occurrence and supplementary campus safety[1] reports denied in full under section 49(b) and section 49(a), read with sections 20 and 14(1)(e).

Appeal PA22-00209 (university file 22-0027)

[13] At issue in this appeal are the emails denied in full under the exemptions set out in the following table:

Emails Denied in Full Under the Exemptions Set Out

Page Number	FIPPA exclusions/exemptions
1-106	49(a), 14(1)(e), 20; 49(b)
107-143	49(a), 14(1)(e), 20
144-147	49(a), 14(1)(e), 20; 49(b)
148-154	49(a), 14(1)(e), 20
155	49(a), 14(1)(e), 20; 49(b)
156	49(a), 14(1)(e), 20
157-163	49(a), 14(1)(e), 20; 49(b)
164-263	49(a), 14(1)(e), 20
264-281[2]	65(6)3, but if not excluded, then 49(a), 14(1)(e), 20; 49(b)
282-308	49(a), 14(1)(e), 20; 49(b)
309-312	49(a), 14(1)(e), 20, 19
313-316	49(a), 14(1)(e), 20
317-327	49(a), 14(1)(e), 20; 49(b)
328-359	49(a), 14(1)(e), 20

ISSUES:

1. Does the section 65(6)3 exclusion for records relating to labour relations or employment matters apply to pages 264 to 281 of the records?
2. Do the remaining records contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?[3]
3. Does the discretionary exemption at section 49(a), allowing an institution to refuse access to a requester’s own personal information, read with the section 20 (threat to safety or health) exemption, apply to the remaining records?

DISCUSSION:

Issue A: Does the section 65(6)3 exclusion for records relating to labour relations or employment matters apply to pages 264 to 281 of the records?

[14] Section 65(6)  of the Act  excludes certain records held by an institution that relate to labour relations or employment matters. If the exclusion applies, the record is not subject to the access scheme in the Act , although the institution may choose to disclose it outside of the Act ’s access scheme.[4]

[15] The purpose of this exclusion is to protect some confidential aspects of labour relations and employment-related matters.[5]

[16] Section 65(6) states, in part:

Subject to subsection (7), this Act  does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:

3. Meetings, consultations, discussions or communications about labour relations or employment related matters in which the institution has an interest….

[17] If section 65(6) applies to the records, and none of the exceptions found in section 65(7) applies, the records are excluded from the scope of the Act .

[18] If section 65(6) applied at the time the record was collected, prepared, maintained or used, it does not stop applying at a later date.[6]

[19] The type of records excluded from the Act  by section 65(6) are those relating to matters in which the institution is acting as an employer, and terms and conditions of employment or human resources questions are at issue.[7]

[20] Section 65(6) does not exclude all records concerning the actions or inactions of an employee of the institution simply because their conduct could give rise to a civil action in which the institution could be held vicariously liable for its employees’ actions.[8]

[21] For the collection, preparation, maintenance or use of a record to be “in relation to” one of the three subjects mentioned in this section, there must be “some connection” between them.[9]

[22] The "some connection" standard must, however, involve a connection relevant to the scheme and purpose of the Act , understood in their proper context. For example, given that accountability for public expenditures is a core focus of freedom of information legislation, accounting documents that detail an institution’s expenditures on legal and other services in collective bargaining negotiations do not have "some connection" to labour relations.[10]

[23] The term “employment of a person” refers to the relationship between an employer and an employee. The term “employment-related matters” refers to human resources or staff relations issues arising from the relationship between an employer and employees that do not arise out of a collective bargaining relationship.[11]

[24] For section 65(6)3 to apply, the institution must establish that:

1. the records were collected, prepared, maintained or used by an institution or on its behalf;
2. this collection, preparation, maintenance or use was in relation to meetings, consultations, discussions or communications; and
3. these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the institution has an interest.

Representations

[25] The university states that the pages of the records for which it has claimed the exclusion at section 65(6)3 consist of a report and email discussions about this report. It states that the records relate to a complaint made by the appellant against a university employee.

[26] The university submits that these records were collected, prepared, maintained and used by it in relation to the complaint made against a university employee by a non-university member.

[27] The appellant admits in his representations that he made a complaint about the university employee. He submits, as noted above, that section 65(6) does not exclude all records concerning the actions or inactions of an employee of the institution simply because their conduct could give rise to a civil action in which the institution could be held vicariously liable for its employees’ actions.

[28] The phrase “employment-related matters” has been found to apply in the context of:

• a job competition;[12]
• an employee’s dismissal;[13]
• a grievance under a collective agreement;[14] and
• disciplinary proceedings under the Police Services Act.[15]

[29] The phrase “labour relations or employment-related matters” has been found not to apply in the context of:

• an organizational or operational review;[16] or
• litigation in which the institution may be found vicariously liable for the actions of its employee.[17]

Findings

[30] The university claims that pages 264 to 281 of the records are excluded from the scope of the Act  under the exclusion at section 65(6)3. Based on my review, I agree with the university that those pages consist of a report, and emails discussing the report, that were prepared by the university while investigating employment-related matters concerning an employee arising from a complaint made by the appellant.

[31] The phrase “in which the institution has an interest” means more than a “mere curiosity or concern,” and refers to matters involving the institution’s own workforce.[18]

[32] The records are excluded only if the meetings, consultations, discussions, or communications are about labour relations or “employment-related” matters in which the institution has an interest. Matters related to the actions of employees, for which an institution may be responsible are not employment-related matters for the purpose of section 65(6).[19]

[33] I find that:

• Part 1 of the test has been met as the university collected, prepared, maintained and used the report and emails discussing the report.
• Part 2 of the test has been met as the university collected, prepared, maintained and used the report, and emails discussing the report, in relation to meetings, consultations, discussions, or communications about the complaint.
• Part 3 of the test has been met as these meetings, consultations, discussions, or communications were about employment-related matters in which the university has an interest. The records are about the university’s management of its own workforce and were prepared, maintained and used in response to the appellant’s allegations of a university’s employee’s workplace misconduct. The university has an interest in this employment-related matter involving its employee, and that this interest was more than a mere curiosity or concern. Therefore, I find that the records are about an employment-related matter.[20]

[34] If the records fall within any of the exceptions in section 65(7), the records are not excluded from the application of the Act. None of the exceptions in section 65(7) have been claimed and I find that none of them apply.[21]

[35] Accordingly, I find that pages 264 to 281 of the records are excluded from the scope of the Act  by reason of section 65(6)3.

Issue B Do the remaining records contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?

[36] In order to decide which sections of the Act  may apply to a specific case, the IPC must first decide whether the record contains “personal information,” and if so, to whom the personal information relates.

[37] Section 2(1)  of the Act  defines “personal information” as “recorded information about an identifiable individual.”

[38] Information is “about” the individual when it refers to them in their personal capacity, which means that it reveals something of a personal nature about the individual. Generally, information about an individual in their professional, official or business capacity is not considered to be “about” the individual.[22]

[39] In some situations, even if information relates to an individual in a professional, official or business capacity, it may still be “personal information” if it reveals something of a personal nature about the individual.[23]

[40] Information is about an “identifiable individual” if it is reasonable to expect that an individual can be identified from the information either by itself or if combined with other information.[24]

[41] Section 2(1)  of the Act  gives a list of examples of personal information:

“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 if 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.

[42] The list of examples of personal information under section 2(1) is not a complete list. This means that other kinds of information could also be “personal information.”[25]

[43] Sections 2(3)  and (4)  of the Act  exclude some information from the definition of personal information. Sections 2(3) and (4) are described above.

[44] It is important to know whose personal information is in the record. If the record contains the requester’s own personal information, their access rights are greater than if it does not.[26] Also, if the record contains the personal information of other individuals, one of the personal privacy exemptions might apply.[27]

Representations

[45] The university states that the 8 pages at issue in Appeal PA22-00208, which are general occurrence and supplementary campus safety reports, contain the personal information of a university employee (the affected person).

[46] The university states that the emails at pages 1-106, 144-147, 155, 157-163, 282-308, and 317-327 in Appeal PA22-00209, contain the personal information of the affected person, the manager named in this request (the manager) and/or another university staff member.[28]

[47] The university submits that all the information of these individuals is information about them in their personal capacity, revealing something of a personal nature about them and is not information about them in their professional, official, or business capacities.

[48] In the alternative, the university submits that if I were to find that the information (or parts thereof) does relate to these individuals in their professional, official, or business capacity, it is still “personal information” because it reveals something of a personal nature about them.[29]

[49] The university submits that any views or opinions expressed about the appellant by these individuals are their personal opinions and did not form part of their professional opinions, save and except any communication directly to/from the appellant, which are no longer at issue in these appeals.

[50] The appellant states that the records contain his personal information. He states that he did not work at the university and that he was the subject of an investigation by a university employee. He states, as such, the records contain his personal information as defined in paragraph (g) of the definition of that term in section 2(1), as they contain another individual’s opinions about him.

[51] The appellant further states that he is not seeking university employees’ personal opinions, but information about their actions in a professional capacity.

Findings

[52] I find that the records contain the personal information of the appellant as they concern his conduct surrounding his attendance at the university for recreational purposes. This personal information includes the views or opinions of other individuals about the appellant, in accordance with paragraph (g).

[53] I also find that the records contain the personal information of the other identifiable individuals in the records, including the views or opinions of other individuals about them, in accordance with paragraph (g).

[54] However, I find that some of the information about the other individuals in the records is information about them in their business, professional or official capacity and does not reveal something of a personal nature about them. This information includes information that is explicitly not personal information under section 2(3), such as names, titles, contact information or designations that identify these individuals in a business, professional or official capacity.

[55] As all the records contain the personal information of the appellant, I will consider his access rights under the discretionary exemption at section 49(a). As noted above, if the record contains the appellant’s own personal information, their access rights are greater than if it does not.[30]

Issue C: Does the discretionary exemption at section 49(a), allowing an institution to refuse access to a requester’s own personal information, read with the section 20 (threat to safety or health) exemption, apply to the remaining records?

[56] I am now going to consider whether the records, which contain the appellant’s personal information, are exempt by reason of section 49(a), read with section 20.

[57] Section 20 is meant to protect individuals from serious threats to their health or safety resulting from disclosure of a record. It states:

A head may refuse to disclose a record whose disclosure could reasonably be expected to seriously threaten the safety or health of an individual.

[58] Parties resisting disclosure of a record cannot simply assert that the harms under section 20 are obvious based on the record. They must provide detailed evidence about the risk of harm if the record is disclosed. While harm can sometimes be inferred from the records themselves and/or the surrounding circumstances, parties should not assume that the harms under section 20 are self-evident and can be proven simply by repeating the description of harms in the Act .[31]

[59] Parties resisting disclosure must show that the risk of harm is real and not just a possibility.[32] However, they do not have to prove that disclosure will in fact result in harm. How much and what kind of evidence is needed to establish the harm depends on the context of the request and the seriousness of the consequences of disclosing the information.[33]

[60] For section 20 to apply, there must be a reasonable basis for concluding that disclosure of the information at issue could be expected to seriously threaten someone’s safety or health. A person’s subjective fear, or their sincere belief that they could be harmed, is important, but is not enough on its own establish this exemption.[34]

[61] The term “individual” is not necessarily confined to a particular identified individual and may include any member of an identifiable group or organization.[35]

Representations

[62] The university states that not only the individuals that are known to the appellant, but also those that are unknown to the appellant, are at serious risk of harm if any record, or part thereof, is disclosed.

[63] The university states that, as detailed in its confidential representations, there exists a real and very significant possibility of harms. The university submits that the appellant has engaged in consistent behaviour towards university staff that gives rise to the harms set out in section 20.

[64] The university submits that correspondence from the appellant, either in the two appeals at issue, in other appeals before the IPC, or in records held by the institution show behaviour that warrants the application of section 20. It submits that this correspondence should be considered in support of the application of this exemption.

[65] The university relies, in part, on three access requests made by the appellant following the two requests at issue in these appeals. It submits that these requests demonstrate that he is a continued risk to university staff which supports a finding that section 20 applies.[36] The university explains that in these requests the requester seeks access to:

• [All] documents, … relating to me (whether or not I am specifically named within those documents) within the U of T system from 2013, when [the affected person] began stalking me at the Hart House Fitness Centre. …This request includes surveillance footage in which [the affected person] and I appear at roughly the same time at the Fitness Center … when she can be seen flirting, stalking, stopping and staring into my face, and trying to speak to me in the lead up to and especially after the June 2017 incident. These documents are requested because they will show the knowledge of [the affected person’s] and [the manager’s] violations of my rights when they were taking place or, at least, the cover-up engineered by Hart House leadership, … and their collusion with Campus Safety, whose Staff Sergeant [name] also gas lighted me and denied me due process. This conspiracy may also include discrimination by the FIPPA office ...
• [All] donor information relating to [the affected person’s] family, including [the affected person’s named relative], made to Hart House, the U of T Alumni Association, or any other body of the university, which might explain why she has been allowed to work there, despite her history of sexually predatory behaviour, and why I have been discriminated against, framed for conduct that never occurred to the extent [the manager and the affected person’s] claim, and denied due process to cover up her behaviour …
• … [Access] to the code of conduct governing Hart House and other University of Toronto employees regarding alumni and members of the community who are neither staff nor students. … Since I’ve already been discriminated against, spied upon, stalked, gas lighted, and had my rights violated in other ways by Hart House employees, I wish to know the standards that govern them and by which I may hold them accountable, including termination of employment, so that I may seek recourse for past actions and potential future violations, so that I may feel safe going there.

[66] The university recognizes that prior orders of the IPC have found that individuals who work in “public” offices will sometimes have to deal with “difficult” clients who are often angry and frustrated and that “…there must be clear and direct evidence that the behaviour in question is tied to the records at issue in a particular case such that a reasonable expectation of harm is established should the records be disclosed”.[37] It submits that in this case, there is clear and direct evidence of such behaviour.

[67] The university also recognizes that the lapse of time between the alleged behaviour that the institution’s claim of a reasonable expectation of harm and the timing of the appeal is also a factor considered by the IPC.[38] It submits that this is not relevant in this case as the appellant has continued to engage in threatening behaviour, which spans from 2017 up to and including 2023.

[68] The appellant states the claim of fear by the university’s employees are unfounded and that the discretionary exemption in sections 49(a), read with 20, is being inappropriately used by the university in a blanket manner.

[69] The appellant also states that the university is biased in favour of its staff. He states that he wants me to investigate, talk to all parties, and detect perjury. He further states that the university created an incentive for people to lie about him.

Findings

[70] As indicated above, I received extensive confidential representations from the university relating to the application of section 49(a), read with section 20. These representations describe the university’s relationship with the appellant, specific interactions between the appellant and university staff members, the university’s response to the appellant’s interactions with its staff members, and why the university’s position is that disclosure could reasonably be expected to seriously threaten the safety of individuals at the university as contemplated by section 20.

[71] In my view, the university has provided very detailed evidence of persistent and ongoing behaviour by the appellant towards university staff members over the course of several years, specifically, from 2017 until the date that it submitted its representations in 2023.

[72] When viewed as a whole, I accept that the appellant’s communications with the university and its staff since 2017 demonstrate the intensity of his feelings regarding what he describes as persecution and abuse at the hands of the various university staff members who have dealt with him in his quest for justice.

[73] As set out in Order PO-1940, simply exhibiting inappropriate behaviour in dealings with staff in the public offices is not sufficient to engage a section 20 claim. Rather, as is the case here, there must be clear and direct evidence that the behaviour in question is tied to the records at issue in a particular case such that a reasonable expectation of harm is established.[39]

[74] In this case, the records document the university’s frank internal discussions of the appellant’s communications with the university and its staff members and discussions about its response to the appellant’s interactions with its staff members.

[75] The appellant describes the university and the staff that he has had interactions with as lying to him, abusing him, persecuting him, acting criminally towards him, stalking him, spying on him, and defaming him. The appellant has had personal communications and interactions with various university staff members in pursuit of what he perceives as their unfair and illegal treatment of him.

[76] It is evident from the appellant’s representations that he is very unhappy with the way he was treated by staff at the university. It is also evident from the records and confidential representations submitted by the university that university staff are concerned for their safety because of the appellant’s past behaviour and interactions with them and the nature of the content of his correspondence.[40]

[77] Based on my review of the records and the parties’ representations, as well as the evidence describing the appellant’s continued interaction with the university over a period of six years in pursuing “justice” for himself, I find that disclosure of the records at issue could reasonably be expected to seriously threaten the safety of the university and its staff. I find that the evidence provided by the university is sufficiently detailed to support a finding that section 20 applies, and that the entirety of the records remaining at issue ought to be withheld from disclosure due to the serious risks to safety of university staff were they to be disclosed.

[78] Therefore, I conclude that the university has established that disclosure of the information at issue could reasonably be expected to seriously threaten the safety of an individual, specifically, the identifiable individuals whose personal information is found in the records. As a result, I find that the records at issue are exempt under section 49(a), read with 20.

[79] In upholding the ministry’s application of the discretionary exemption at section 49(a), I have considered the parties’ representations on the university’s exercise of discretion, in particular the university’s representations. I find that the university properly considered:

• the purposes of the Act ,
• that the appellant is requesting records that contain his personal information,
• the appellant’s relationship with the other individuals listed in the records, and
• the appellant’s need for access to the records.

[80] I find that the university exercised its discretion properly. I find that it did not exercise its discretion in bad faith or for an improper purpose, it did not consider irrelevant considerations and did not fail to consider relevant ones. Therefore, I find that the records are exempt by reason of sections 49(a) with 20, except for the pages 264 to 281 which I found are subject to the exclusion at section 65(6)3.

[81] In conclusion, I have upheld the university’s decision that the report and the emails relating to that report found at pages 264 to 281 are excluded from the scope of the Act  by reason of section 65(6)3 and that the remaining pages of records, which are general occurrence and supplementary campus safety reports in PA22-00208 and emails in PA22-00209, are exempt from disclosure by reason of section 49(a), read with section 20.

[82] As I have found that all the records at issue are either excluded from the scope of the Act  or exempt from disclosure, there is no need for me to consider the other exemptions claimed for these records, specifically section 49(a), read with sections 19 or 14(1)(e), or section 49(b).

ORDER:

I uphold the university’s decisions and dismiss the appeals.

Original signed by:		May 16, 2024
Diane Smith
Adjudicator