ORDER MO-4573

Appeal MA21-00397

Township of Centre Wellington

September 27, 2024

Summary: An individual made a request to the township for emails exchanged between himself, other individuals and the township’s Chief Building Official regarding a renovation project. The township located two emails which it disclosed, in part, to the appellant. The township claimed that disclosure of the withheld information would be an unjustified invasion of another individual’s personal privacy under section 38(b). The individual appealed the township’s access decision to the IPC seeking access to the withheld information. The individual also took the position that additional records responsive to his request should exist.

The adjudicator upholds the township’s decision to withhold personal information under section 38(b). She dismisses the appellant’s claim that the township should have located additional records on the basis that the records the appellant says should exist do not reasonably relate to the request.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 2(1) (definition of personal information), 14(3)(b), 17(1), 17(2), and 38(b).

OVERVIEW:

[1] The appellant submitted a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) to the Township of Centre Wellington (the township) for emails about a renovation project exchanged between himself, another individual and the township’s Chief Building Official for a specified period of time.

[2] The township identified two email exchanges totalling 6 pages between the Chief Building Official and another individual. The township granted the appellant partial access to these records. The township took the position that disclosure of the withheld portions would constitute an unjustified invasion of personal privacy under section 38(b).

[3] The appellant appealed the township’s decision to the Information Privacy Commissioner of Ontario (IPC) and a mediator was assigned to the file. Mediation did not resolve the appeal, and the appellant indicated that he continues to seek access to the withheld information.

[4] The file was transferred to the adjudication stage of the appeals process in which an adjudicator may commence an inquiry. I commenced an inquiry by inviting the written representations of the township and an affected party by sending them a Notice of Inquiry.

[5] The affected party responded that he consented to the content of his communication with the Chief Building Insepctor being released to the appellant. However, the affected party confirmed that he objected to his email address, phone number or other specific personal information being disclosed to the appellant. The township, in turn, contacted the affected party to confirm his position and issued a revised decision letter granting the appellant further access to the records. The only information which remains undisclosed is the affected party’s email address.

[6] Upon my receipt of the township’s revised access decision, I wrote to the appellant and shared my preliminary assessment that disclosure of the email address to him would constitute an unjustified invasion of personal privacy under section 38(b)(personal privacy). Accordingly, I told the appellant that it was my preliminary assessment that the township properly denied him access to the affected party’s email address and that the file should be closed.[1] The appellant was given an opportunity to provide written representations explaining why the withheld information should be disclosed to him and/or why an inquiry should continue before I made my decision as to whether to close the file.

[7] In response, the appellant provided written representations. The appellant did not assert in his representations that the affected party’s email address should be disclosed to him. However, the appellant’s representations mark the first time he says that the township’s search should have located additional records. As a result, I did not close the file and this order will address the application of section 38(b) to the email and the appellant’s arguments regarding the additional records he believes the township should have located in its search for records responsive to his request.

[8] For the reasons set out below, I uphold the township’s decision to withhold the email under the personal privacy provision at section 38 (b) of the Act . I also find that the additional records the appellant says that the township should have located do not “reasonably relate” to the request. Accordingly, the appellant’s claim that additional responsive records should exist has not been established. The appeal is dismissed.

ISSUES:

1. Does the discretionary personal privacy exemption at section 38(b) apply to the information at issue?
2. Did the township conduct a reasonable search for records? What is the scope of the request for records? Which records are responsive to the request?

DISCUSSION:

Issue A: Does the discretionary personal privacy exemption at section 38(b) apply to the information at issue?

[9] As noted above, the township issued a revised decision letter granting the appellant greater access to the responsive records. As a result, the only ieformation withheld in the emails was the affected party’s email address. The township took the position that disclosure of the withheld email address would constitute an unjustified invasion of personal privacy under section 38(b).

[10] During the course of my inquiry into this appeal, I advised the appellant of my preliminary assessment that section 38(b) applies to the affected party’s email address. The appellant did not provide representations to dispute my preliminary assessment. For the reasons below, I find that the affected party’s email address is exempt from disclosure under section 38(b).

[11] In order for section 38(b) to apply, the IPC must first determine that the record contains the “personal information” of the appellant and another identifiable individual.

The email contains the personal information of the appellant and the affected party

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

[13] Based on my review of the record and in the absence of evidence in the contrary, I am satisfied that the withheld email address constitutes the personal information of the affected party as defined in section 2(1)  of the Act .[3] In addition, I am satsfied that the personal information at issue relates to the affected party in his personal capacity.[4] I am also satisfied that the affected party’s personal information appears in a record that also contains the appellant’s personal information.

Disclosure of the affected party’s email address to the appellant is presumed to be an invasion of personal privacy

[14] 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.[5] 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.[6]

[15] Sections 14(1) to (4) provide guidance in determining whether disclosure would be an unjustified invasion of personal privacy. If the information fits within any of the exceptions in sections 14(1)(a) to (e), disclosure is not an unjustified invasion of personal privacy, and the information is not exempt under section 38(b). None of the parties claim that the withheld information fits within the exceptions set out in section 14(1) or that any of the situations in section 14(4) apply. I am satisfied that neither section 14(1) or (4) apply in the circumstances of this appeal. Accordingly, I will go on to consider whether any of the factors or presumptions under section 14(2) and (3) apply.

[16] If any of sections 14(3)(a) to (h) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy under section 38(b). Section 14(2) lists various factors that may be relevant in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy.[7] The list of factors under section 14(2) is not exhaustive. The institution must also consider any circumstances that are relevant, even if they are not listed under section 14(2).[8]

[17] In determining whether the disclosure of the personal information would be an unjustified invasion of personal privacy under section 38(b), this office will consider, and weigh, the factors and presumptions in sections 14(2) and (3) and balance the interests of the parties.[9]

[18] Here, the township takes the position that disclosure of the email address to the appellant would constitute an unjustified invasion of personal privacy under section 38(b). Accordingly, 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.[10]

[19] However, as noted above the appellant did not specifically address these issues in his representations. The appellant also did not confirm that he continues to seek access to the withheld email address. I have reviewed the appellant’s written representations and am satisfied that the appellant’s evidence did not give rise to the possible application of any factors weighing in favour of disclosure of the withheld email address.

[20] Based on my review of the records including the circumstances in which the records were created, I find that the presumption at section 14(3)(b) applies in the circumstances of this appeal. Section 14(3)(b) states:

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;

[21] The section 14(3)(b) presumption requires only that there be an investigation into a possible violation of law.[11] So, even if criminal proceedings were never started against the individual, section 14(3)(b) may still apply.[12] The presumption can apply to different types of investigations, including a by-law enforcement which is the context in which the records in this appeal were created.[13]

[22] As no factors (listed or unlisted) weighing in favour of dislcosure have been raised by the appellant, and from my review, none of them could apply, I find that the presumpton at section 14(3)(b) applies. I will go on to determine whether the township properly exercised its discretion.

The township properly exercised its discretion in relying on section 38(b) to withhold the affected party’s email address

[23] Though the township did not provide me representations specifically addressing its exercise of discretion, I am satisfied that the township properly exercised its discretion under section 38(b) and took into consideration relevant factors including the purpose of the personal privacy provision.[14] In making this determination, I note that the township’s representations make it clear that it considered the appellant’s right to access his own information and severed the record in a manner to provide the appellant with as much information as possible while protecting the privacy interests of the affected party. In the absence of evidence to the contrary, I am also satisfied that the township considered relevant factors and did not consider irrelevant factors or act in bad faith or for an improper purpose.

[24] For the reasons stated above, I find that disclosure of the affected party’s email address to the appellant would constitute an unjustifed invasion of the affected party’s personal privacy under section 38(b) and that the township properly exercised its discretion. Accordingly, I uphold the township’s decision to withhold this information from the appellant.

Issue B: What is the scope of the request for records? Which records are responsive to the request? Did the township conduct a reasonable search for records?

[25] The request filed by the appellant seeks access to:

All email communication from [the township’s Chief Building Official] to [myself] and [two named individuals] pertaining to [a] renovation project between January 2014 to December 2018 including all correspondence regarding the building permit issue.

[26] As noted above, the township located two email exchanges totalling 6 pages between the Chief Building Official and another individual. In his representations, the appellant takes the position that additional records should have been located which would respond to his request. In support of this position, the appellant says:

• the search for responsive records should have been done by a third party, who has no interest in the outcome of the search,
• he had a conversation with a named councillor who told him that additional email communications relating to the subject- matter of the request took place, and
• that the number of emails located by the township does not match the “volatility” of the incident or the amount of time it took to resolve it. The appellant says that the township’s search should have resulted “in a larger volume of internal email[s] through various involved agencies (ie: fire department, building department etc.).

The additional records identified by the appellant do not respond to the request

[27] Section 17  of the Act  imposes certain obligations on requesters and institutions when submitting and responding to requests for access to records. This section states, in part:

(1) A person seeking access to a record shall,

(a) make a request in writing to the institution that the person believes has custody or control of the record, and specify that the request is being made under this Act ;

(b) provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record;

. . .

(2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

[28] To be considered responsive to the request, records must “reasonably relate” to the request.[15] Institutions should interpret requests liberally, in order to best serve the purpose and spirit of the Act . Generally, if there is ambiguity in the request, this should be resolved in the requester’s favour.[16]

[29] In my view, the wording of the request provided sufficient detail to identify records that would respond to the request. The appellant sought access to emails exchanged between the township’s Chief Building Official, himself and other individuals named in the request regarding a renovation project. In addition, the appellant’s request restricts the date of emails between January 2014 and December 2018. Given the clear wording of the request, I am satisfied that there is no ambiguity in the request and as a result the township did not have a responsibility to offer assistance to the appellant to reformulate the request.

[30] I am also satisfied that the township located records which “reasonably relate” to the request. In his representations, the appellant says that the township should have located additional records given the length of time attributed to resolving the incident in question and the different “agencies” employed to resolve the issue. However, the wording of the request sought access to records exchanged between the individuals named in the request and did not specify that internal records were also being requested.

The appellant did not provide a reasonable basis for concluding that additional records should exist

[31] If a requester claims that additional records exist beyond those found by the institution, the issue is whether the institution has conducted a reasonable search for records as required by section 17  of the Act .[17] If the IPC is satisfied that the search carried out was reasonable in the circumstances, it will uphold the institution’s decision. Otherwise, it may order the institution to conduct another search for records.

[32] Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, they still must provide a reasonable basis for concluding that such records exist.[18] In this case, the appellant says that additional records should exist because a councillor told him that additional conversations took place and that the township should have located more records given the amount of time it took to resolve the incident in question. In support of his position, the appellant says that internal emails should have been located. Above, I provided my reasons for concluding that the scope of the appellant’s request did not identify internal correspondence. For similar reasons, I find that the appellant’s arguments do not establish a reasonable basis to conclude that additional records responsive to his request exist. If the appellant wants access to internal records exchanged between the township’s departments, he should file another request for this specific information.

[33] Finally, the appellant’s assertion that the township’s search should have been done by a third party has no merit. A reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request makes a reasonable effort to locate records that are reasonably related to the request.[19]

[34] The Act  does not require the institution to prove with certainty that further records do not exist. However, the institution must provide enough evidence to show that it has made a reasonable effort to identify and locate responsive records;[20] that is, records that are "reasonably related” to the request.[21]

[35] Accordingly, had the appellant established a reasonable basis to conclude that additional responsive records exist, I would have required the township’s evidence that it made a reasonable effort to identify and locate all of the responsive records within its custody or control.[22] However, given my finding that the records now being sought by the appellant are not reasonably related to the request, I have decided to dismiss the appellant’s claim that additional records should exist.

ORDER:

I uphold the township’s decision to withhold the email address under section 38(b) and dismiss the appeal.

Original Signed By:		September 27, 2024
Jennifer James
Adjudicator