ORDER MO-4562

Appeal MA23-00091

City of Toronto

September 4, 2024

Summary: A dog owner sought access to records under the Act  related to complaints made to the city about her dog biting individuals in two separate incidents. The city provided access to some of the responsive emails, forms, and medical records, relying on the personal privacy exemptions in sections 14(1) and 38(b) to withhold some information.

In this order, the adjudicator upholds the city’s decision and dismisses the appeal.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56, sections 2(1)  (definition of personal information), 14(1), 14(2)(d), (e), and (h), 14(3)(b), and 38(b).

OVERVIEW:

[1] A dog owner sought access to records about complaints made to the City of Toronto (the city) about her dog biting individuals in two separate incidents. Specifically, she sought access under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) to:

All evidence on file including but not limited to, medical reports, photographs and statements made by complainants and or/witnesses relating to [two] Toronto Animal Services investigation[s].

[2] The city granted partial access to the responsive records with severances pursuant to sections 14(1) (mandatory personal privacy exemption) of the Act . In the decision, the city indicated that some information was removed from the records as it is not responsive to the request.

[3] The requester, now the appellant, appealed the city’s decision to the Information and Privacy Commissioner (the IPC) and a mediator was assigned to attempt a resolution of this appeal.

[4] During mediation, the mediator notified an affected person, but they did not provide their consent to disclose the information relating to them.

[5] The appellant informed the mediator that she is pursuing access to the name and information of the complainant and the statements they made to the city, contained on pages 20, 21, 23, 24, and 45 of the records. Further, she is also pursuing access to the records that have been fully withheld, from pages 48 to 71. She clarified that she is not pursuing access to the remainder of the withheld information nor to the elements that have been deemed non-responsive in the records.

[6] The city stated that it would not change its decision. Further, the city clarified that it is also relying on the discretionary personal privacy exemption in section 38 (b) of the Act  (as the records may contain the personal information of the appellant) to withhold the information in the responsive records to which partial access was granted.

[7] The parties were unable to resolve the issues of the appeal through the process of mediation. The appeal was moved to adjudication, where an adjudicator may conduct an inquiry.

[8] I sought representations from the city and the affected persons whose personal information may be contained in the records, initially. These affected persons were individuals who were the subject of the two dog bite incidents and/or their family members, or witnesses to the incidents in July and October 2022.[1] I only received representations from the city, which I shared with the appellant seeking her representations.[2] The appellant provided representations in response.

[9] In this order, I find that the information that has been withheld is exempt under either section 14(1) or section 38(b) and I uphold the city’s decision not to disclose it. I dismiss the appeal.

RECORDS:

[10] The records in this appeal concern two dog bite incidents. At issue are pages 20- 21, 23-25, and 45, which were withheld in part, and pages 48 to 71, which were withheld in full.

[11] The records include reports, photos of the injuries sustained, emails between affected persons and the city, medical records of an affected person, statements, and a video.[3] Specifically,

• Pages 20-21, 23-25, and 45 are emails and a form with information identifying the affected persons and certain information of the two incidents severed. All these pages concern the incident in October 2022, except for page 45, which concerns the incident in July 2022.
• Pages 48 to 55 are photos of dog bite injuries to the victims in for both the July and October 2022 incidents.
• Pages 56-59, 60-62 contain emails and statements, including witness accounts of both incidents.
• Pages 63 to 71 are medical records of the victim of the October 2022 incident.

ISSUES:

1. Do the records contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?
2. Does the mandatory personal privacy exemption at section 14(1) or the discretionary personal privacy exemption at section 38(b) apply to the information at issue?

DISCUSSION:

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

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

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

[14] 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.[4]

[15] 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.[5]

[16] 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.[6]

[17] 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.

[18] 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.”[7]

[19] 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.[8] Also, if the record contains the personal information of other individuals, one of the personal privacy exemptions might apply.[9]

Representations

[20] The city states that the records were generated during the Toronto Animal Services' investigation process, in response to complaints received by it.

[21] The city states that pages 20-21, 23-24, and 45 (disclosed in part) and pages 48 to 71 (withheld in full), contain personal information, including: the name, telephone number, email address, personal identifier number, photographs, description of injuries, medical treatment, statements, personal correspondence, and medical reports and bills of the affected persons.

[22] The city also states that the records contain the name, address, and contact information of the appellant and that all information pertaining to the appellant has been disclosed to her.

[23] The appellant states that she has received two citations from the city for failure to exercise reasonable precautions to prevent a dog from engaging in a dangerous act and failure to register a dog. She states that the records may contain her personal information and that of the “individual who accused” her.

Findings

[24] Having reviewed the records, I find that all of them contain the personal information of individuals other than the appellant, the affected persons. I find that some of them also contain the personal information of the appellant.

[25] Page 20-21, 23-25 are from one form titled, “Activity Card with Owner Information and Picture(s),” and concern the October 2022 incident.

• Page 20 contains the appellant’s name, address and phone number, and identifies her as the dog owner. All this information on page 20 has been disclosed to the appellant, other than the name and contact information of the affected person that called the city about the appellant’s dog (the caller).
• Page 21, and 23-25 of this form contain the caller’s name, address, phone number and email address, as well as their emails to the city about the dog bite incident in October 2022. These emails include details of the injuries sustained by the victim of this incident. The city has withheld this information other than some general information about the incident.

[26] Page 45 is an email chain about the July 2022 incident. The personal information of the appellant, consisting of her name and address, has been disclosed to the appellant. At issue on this page is the medical and family status information of an affected person, as well as their contact information.

[27] The Activity Card at pages 20-21, and 23-25, and the email chain at page 45 contain the personal information of the appellant and the affected persons in accordance with the definition of personal information in section 2(1).

[28] Pages 48 to 71 have been withheld in full.

• Pages 48 to 55 are photos of dog bite injuries to the victims in both the July and October 2022 incidents.
• Pages 56-59, 60-62, contain emails and statements, including witness accounts of both incidents.
• Pages 63 to 71 are medical records of the victim of the October 2022 incident.

[29] These pages do not contain the personal information of the appellant. However, they all contain the personal information of identifiable individual other than the appellant, the affected persons, in accordance with paragraphs (a) to (h) of the definition of personal information in section 2(1).

[30] In conclusion, I find that all the records contain the personal information of the affected persons. In accordance with the definition of personal information in section 2(1), this personal information includes their names, addresses, phone numbers, ages, their views or opinions, and in the case of certain affected persons their medical histories and health card numbers in accordance with paragraphs (a) to (h) of the definition of personal information in section 2(1).

[31] The records at pages 20-21, 23-25, and 45 also contain the personal information of the appellant, including her name, address and phone number and individuals’ views about her in accordance with paragraphs (b), (d), (e), (g), and (h) of the definition of personal information in section 2(1). As these records contain the personal information of the appellant together with that of other individuals, I will consider whether the discretionary personal privacy exemption in section 38(b) applies to them.

[32] The remainder of the records, found at pages 48 to 71, contain only the personal information of the affected persons. As such, I will consider the application of the mandatory personal privacy exemption in section 14(1) to them.

Issue B: Does the mandatory personal privacy exemption at section 14(1) or the discretionary personal privacy exemption at section 38(b) apply to the information at issue?

[33] Section 36(1)  of the Act  gives individuals a general right of access to their own personal information held by an institution. Section 38 provides some exemptions from this right.

[34] Under the section 38(b) exemption, if a record contains the personal information of both the requester and another individual, the institution may refuse to disclose the other individual’s personal information to the requester if disclosing that information would be an “unjustified invasion” of the other individual’s personal privacy.[10]

[35] The section 38(b) exemption is discretionary. This means that the institution can decide to disclose another individual’s personal information to a requester even if doing so would result in an unjustified invasion of other individual’s personal privacy.

[36] In contrast, under section 14(1), where a record contains personal information of another individual but not the requester, the institution cannot disclose that information unless one of the exceptions in sections 14(1)(a) to (e) applies, or the section 14(1)(f) exception applies, because disclosure would not be an “unjustified invasion” of the other individual’s personal privacy.

[37] Sections 14(1) to (4) provide guidance in deciding whether the information is exempt under section 14(1) or 38(b), as the case may be.

[38] If any of the five exceptions in sections 14(1)(a) to (e) apply, neither the section 14(1) exemption nor the section 38(b) exemption applies. None of these exceptions apply in the circumstances of this appeal.

[39] In deciding whether either of the section 38(b) exemption or the section 14(1)(f) exception to the section 14(1) exemption applies, sections 14(2), (3) and (4) help in determining whether disclosure would or would not be an unjustified invasion of personal privacy.

[40] If any of sections 14(3)(a) to (h) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy. Section 14(2) lists other factors that help in deciding whether disclosure would be an unjustified invasion of personal privacy, and section 14(4) lists situations where disclosure would not be an unjustified invasion of personal privacy. If any of the section 14(4) situations is present, the information is not exempt under section 14(1) or 38(b) and sections 14(2) and (3) need not be considered. None of the paragraphs in section 14(4) apply in this appeal.

[41] For records claimed to be exempt under section 14(1) (that is, records that do not contain the appellant’s personal information), the factors outlined in section 14(2) cannot be used to rebut (disprove) a presumed unjustified invasion of personal privacy under section 14(3).[11] In other words, if disclosure of the other individual’s personal information is presumed to be an unjustified invasion of personal privacy under section 14(3), section 14(2) cannot change this presumption.[12]

[42] If the personal information at issue does not fit within any presumptions in section 14(3), the decision-maker[13] considers the factors set out in section 14(2) to determine whether disclosure of the personal information would be an unjustified invasion of personal privacy. If no factors favouring disclosure in section 14(2) are present, the section 14(1) exemption applies because the section 14(1)(f) exception has not been proven.[14]

[43] For records claimed to be exempt under section 38(b) (that is, records that contain the appellant’s personal information), the decision-maker must consider and weigh the factors and presumptions in sections 14(2) and (3) and balance the interests of the parties in deciding whether the disclosure of the other individual’s personal information would be an unjustified invasion of personal privacy.[15]

Representations

[44] The city relies on the factor favouring privacy protection in section 14(2)(h) to withhold the information it has claimed is exempt under either section 14(1) of 38(b). Section 14(2)(h) reads:

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,

the personal information has been supplied by the individual to whom the information relates in confidence.

[45] The city states that the information collected by Toronto Animal Services pursuant to their investigation was provided in confidence by the affected person. It states:

… [I]t is the city's position that the disclosure of the telephone number, email address, home address, personal identifier, statements, photographs, medical conditions, and personal correspondence would be an “unjustified invasion” of the affected [person’s] personal privacy.

[46] The appellant states that in October 2022, she was visited by a Toronto Animal Services officer (the officer) who informed her that his office had received a complaint about an alleged event involving her dog. She submits that the officer refused to inform her of any details of the alleged event or who initiated the complaint. She states that as of the date of her representations, over a year after this visit, no injured party had come forward claiming to have been the victim of the alleged dog event.

[47] The appellant states that she received two citations against her for violation of the city’s Municipal Code (sections 349-11A and 349-15A), for failure to exercise reasonable precautions to prevent a dog from engaging in a dangerous act and failure to register dog. She submits that these citations resulted in pecuniary penalties totaling $855.

[48] To support her position that the withheld information should be disclosed to her, the appellant relies on the factors in section 14(2)(d) and (e), which read:

A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

…

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

…

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

[49] The appellant submits that the withheld information is relevant to a fair determination of her right to make a full answer and defense to allegations against her as the dog owner. She states that, without access to additional information relating to the nature of the allegation, the citations she received related to dog allegedly biting people would cause her pecuniary harm. She submits that she is unable to defend herself from accusations about her dog without understanding the nature of the allegations levied against her.

Analysis and findings

[50] As set out above, in deciding whether either of the section 38(b) exemption or the section 14(1)(f) exception to the section 14(1) exemption applies, sections 14(2), (3) and (4) help in determining whether disclosure would or would not be an unjustified invasion of personal privacy.

[51] When considering section 14(1), if any of sections 14(3)(a) to (h) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy.

[52] Based on the parties’ representations, it is clear that all of the records were compiled as part of an investigation into a violation of law. Therefore, I find that the presumption in section 14(3)(b) applies. This section reads:

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

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

[53] This presumption requires only that there be an investigation into a possible violation of law.[16] So, even if criminal proceedings were never started against the individual, section 14(3)(b) may still apply.[17]

[54] The presumption can apply to different types of investigations, including those relating to by-law enforcement,[18] and enforcement of environmental laws,[19] occupational health and safety laws,[20] or violations of the Ontario  Human Rights Code .[21]

[55] In this case, the personal information in the records was compiled and is identifiable as part of an investigation into possible violations of law under sections 349- 11A and 349-15A of the city’s Municipal Code., as the appellant has indicated that she has received citations under these sections. These sections of the Municipal Code read:

349-11A - Have registered the dog with the Executive Director, paid a licence fee in the amount specified in Chapter 441, Fees and Charges, and acquired a licence tag, including the payment of a licence tag fee in the amount specified in Chapter 441, Fees and Charges, for the dog.

349-15A - Every owner of a dog shall exercise reasonable precautions to prevent the dog from engaging in a dangerous act.

[56] Therefore, the presumption against disclosure in section 14(3)(b) applies to all of the personal information at issue in this appeal. As section 14(3)(b) applies, disclosure of the information is presumed to be an unjustified invasion of personal privacy.

[57] For records that do not contain the requester’s personal information (the information on pages 48 to 71, as discussed above), the relevant exemption is section 14(1). Under section 14(1), the factors outlined in section 14(2) cannot be used to rebut (disprove) a presumed unjustified invasion of personal privacy under section 14(3).[22] As the presumption at section 14(3)(b) applies, disclosure of the personal information on pages 48 to 71 would constitute an unjustified invasion of the personal privacy of the affected parties and is exempt under section 14(1).

[58] For records that are exempt under section 14(1), the personal information cannot be disclosed unless one of the circumstances listed in section 14(4) is present, or unless the public interest override at section 16 applies. None of the circumstances listed in section 14(4) are present here, and the public interest override at section 16 has not been claimed, nor is there any reasonable basis to conclude that it applies. Therefore, I will uphold the city’s decision not to disclose the information on pages 48 to 71.

[59] For records that contain both the appellant’s and the affected parties’ personal information, which in this case are found at pages 20-21, 23-25, and 45, the relevant exemption is section 38(b). Under section 38(b), I must consider and weigh the factors and presumptions in sections 14(2) and (3) and balance the interests of the parties in deciding whether the disclosure of the other individual’s personal information would be an unjustified invasion of personal privacy.[23]

[60] While the presumption at section 14(3)(b) applies and weighs against disclosure, I must also consider the factors at section 14(2). Section 14(2) lists several factors that may be relevant to determining whether disclosure of personal information would be an unjustified invasion of personal privacy.[24] Some of the factors weigh in favour of disclosure, while others weigh against disclosure.

[61] The list of factors under section 14(2) is not a complete list. The institution must also consider any other circumstances that are relevant, even if these circumstances are not listed under section 14(2).[25]

[62] Each of the first four factors, found in sections 14(2)(a) to (d), if established, would tend to support disclosure of the personal information in question, while the remaining five factors found in sections 14(2) (e) to (i), if established, would tend to support non-disclosure of that information. Sections 14(2)(d) and (e) have been raised by the appellant. Section 14(2)(h) has been raised by the city.

[63] Section 14(2)(d) weighs in favour of the disclosure of personal information where that information is needed to allow them to participate in a court or tribunal process. The IPC uses a four-part test to decide whether this factor applies. For the factor to apply, all four parts of the test must be met:

1. Is the right in question a right existing in the law, as opposed to a non-legal right based solely on moral or ethical grounds?
2. Is the right related to a legal proceeding that is ongoing or might be brought, as opposed to one that has already been completed?
3. Is the personal information significant to the determination of the right in question?
4. Is the personal information required in order to prepare for the proceeding or to ensure an impartial hearing?[26]

[64] As noted above, the appellant has indicated that she has received citations under sections 349-11A and 349-15A of the city’s Municipal Code.

[65] I have considered the two citations the appellant received that resulted in pecuniary penalties totaling $855. The appellant has not provided evidence that there are any pending or ongoing proceedings or hearings related to these two citations. As the appellant has not provided evidence to show that she requires the personal information at issue in order to prepare for a proceeding or to ensure an impartial hearing, therefore, parts 2 and 4 of the test have not been met.

[66] I also find that I do not have sufficient evidence to find that the personal information at issue is significant to the determination of the rights in question, which relate to the charges under the Municipal Code as to whether the appellant exercised reasonable precautions to prevent her dog from engaging in a dangerous act or whether she has an unregistered second dog. The personal information primarily consists of evidence as to the injuries sustained in the two dog bite incidents. Therefore, part 3 of the test has not been met.

[67] As all of the four parts of the test under section 14(2)(d) have not been met, I find that this factor does not apply to weigh in favour of disclosure of the personal information at issue, as I do not find that it is relevant to a fair determination of the appellant’s rights.

[68] Section 14(2)(e) has also been raised by the appellant. She submits that disclosure will expose her to unfair pecuniary or other harm.

[69] This factor weighs against disclosure when the evidence shows that financial damage or other harm from disclosure is either present or foreseeable, and that this damage or harm would be “unfair” to the individual whose personal information is in the record.

[70] I do not have sufficient evidence to determine that the appellant would be exposed to pecuniary or other harm if she did not receive disclosure of the information at issue in the records and that harm would be unfair

[71] The appellant has indicated that she needs the information at issue to understand the nature of the allegations levied against her so she can defend herself from accusations about her dog. However, the appellant has received citations that reference the relevant city Municipal Code section infractions. She has also received partial access to the records that contain details as to why she received those citations and other information about both incidents, including a link to the video of the October 2022 dog bite incident.

[72] In addition, the appellant has specifically stated that no injured party has come forward claiming to have been the victim of the alleged event in October 2022. Therefore, she has not provided evidence that any individual is seeking damages from her because of the dog bite incidents.

[73] Accordingly, I find that the factor favouring disclosure in section 14(2)(e) does not apply, as I have insufficient evidence to find that the appellant will be exposed unfairly to pecuniary or other harm without disclosure of the information at issue in the records.

[74] The city relies on section 14(2)(h), claiming that the personal information at issue was supplied in confidence. This section applies if both the individual supplying the information and the recipient had an expectation that the information would be treated confidentially, and that expectation is reasonable in the circumstances. This requires an objective assessment of whether the expectation of confidentiality is “reasonable.”[27]

[75] I agree with the city that the information at issue in the records was supplied in confidence. These records include medical records, and emails about these medical records and the injuries sustained in the dog bite incidents. Based on contents of the records, I find that the personal information in them has been supplied by the individual to whom the information relates in confidence and the factor against disclosure in section 14(2)(h) applies.

[76] For the information found at pages 20-21, 23-25, and 45, I must consider and weigh the factors and presumptions in sections 14(2) and (3) and balance the interests of the parties in deciding whether the disclosure of the other individual’s personal information would be an unjustified invasion of personal privacy.

[77] Regarding pages 20-21, 23-25, and 45, I have found that the none of the factors relied upon by the appellant that weigh in favour of disclosure apply. However, I have found that the factor that favours privacy protection in section 14(2)(h) applies. In addition, I have found that the presumption against disclosure in section 14(3)(b) applies.

[78] After weighing the factors and presumptions in sections 14(2) and (3), all of which weigh against disclosure, and balancing the interests of the parties, I find that disclosure of the personal information at issue would constitute an unjustified invasion of the personal privacy of the affected persons and section 38(b) therefore applies to exempt the information at issue in pages 20-21, 23-25, and 45.

[79] In making this finding, I have considered the city’s exercise of discretion. It is clear from its representations that the city considered the contents of the records at issue, the wording of the personal privacy exemption and the interests it seeks to protect. It is also clear that it balanced those considerations against the fact that the appellant is seeking her own personal information. Additionally, from my review of the records, it disclosed a substantial amount of information to the appellant, including her own personal information, where the privacy interests of other identifiable individuals were not affected.

[80] Accordingly, I find that the city exercised its discretion to withhold information under section 38(b) in a proper manner in denying access to the information at issue on pages 20-21, 23-25, and 45 of the records.

[81] In conclusion, I have found that all the information at issue in the records is exempt by reason of the mandatory personal privacy exemption in section 14(1) or the discretionary personal privacy in section 38(b). Therefore, I will uphold the city’s decision to deny access to the information and dismiss the appeal.

ORDER:

I uphold the city’s decision and dismiss the appeal.

Original signed by:		September 4, 2024
Diane Smith
Adjudicator