ORDER MO-4630

Appeal MA21-00778

The Corporation of the City of Kingston

February 25, 2025

Summary: A requester sought access to a city bus video of an incident involving a then sitting city councillor. The city relied on the personal privacy exemption at section 14(1)  of the Municipal Freedom of Information and Protection of Privacy Act  to deny access to the responsive record. This order upholds the city’s decision and dismisses the appeal.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , RSO 1990, c M.56, sections 2(1)  (definition of “personal information”), 14(1), 14(1)(f), 14(2)(a) and 16.

OVERVIEW:

[1] The Corporation of the City of Kingston (the city) received a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) for access to the video (with audio) of an incident in 2019 when a then sitting city councillor, who was accompanied by his son, blocked a city bus.

[2] The incident generated a complaint made under the city Member Code of Conduct (city Code). The complaint resulted in an investigation and the creation of an integrity report which concluded that the former city councillor’s behaviour was in breach of the city Code and recommended a sanction. The integrity report was adopted by city council.

[3] The city identified a responsive city bus video and after notifying the former city councillor to obtain his position on disclosure, issued an access decision denying access to the city bus video in full under the exemption in section 14(1) (personal privacy).

[4] The requester, now the appellant, appealed the city’s access decision to the Information and Privacy Commissioner of Ontario (IPC).

[5] Mediation did not resolve the appeal, and the appeal moved to the adjudication stage where an adjudicator may conduct an inquiry. During my inquiry, I sought and received representations from the city, the appellant and the former city councillor on the facts and issues set out in a Notice of Inquiry.

[6] In his representations, the appellant raised the possible application of the public interest override at section 16  of the Act , which I added as an issue in the appeal. The appellant also advised that he does not seek access to the images of the passengers, the bus driver or the former city councillor’s son. Accordingly, this order only addresses the appellant’s request for access to information pertaining to the former city councillor.

[7] In this order I uphold the city’s decision to deny the city bus video in full and dismiss the appeal.

RECORDS:

[8] At issue in this appeal is a video, including audio, showing multiple camera angles captured by the city bus cameras of the incident that was the subject of the request (the video).

ISSUES:

1. Does the video 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)  of the Act  apply to the video?
3. Does the public interest override at section 16  of the Act  apply to the video?

DISCUSSION:

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

[9] The city withheld the video on the basis that it is exempt from disclosure because it is the personal information of individuals other than the appellant and qualifies for exemption under the mandatory personal privacy exemption in section 14(1)  of the Act . For section 14(1) to apply, the video must contain “personal information.”

[10] Section 2(1)  of the Act  defines “personal information” as recorded information about an identifiable individual and gives a list of examples of personal information.[1] 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.”[2]

[11] 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. 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.[3]

The parties’ representations

[12] The city submits that the responsive video contains the personal information of the former city counsellor. The city also submits that because the former city counsellor’s identity is already known to the public, it would be impossible to de-identify the video through the application of blurring technology. The city takes the position that the information appears in a personal rather than an official context. The city submits that during the incident the former city councillor was not acting on behalf of the city or in his capacity as a member of city council.

[13] The former counsellor objects to the disclosure of any information pertaining to him.

[14] The appellant takes the position that during the incident the former city councillor was either acting in his official capacity or was a city council member acting in breach of the city Code. The appellant states that during the incident the former city councillor used his official position to call and engage the Acting City Manager. The appellant asserts that no citizen’s call would have made it through to the Acting City Manager on a Sunday afternoon. In support of his position, the appellant references the integrity report generated through an investigation which concluded that the former city councillor’s behaviour was in breach of the city Code and recommended a sanction. The appellant points to paragraph 53 of the integrity report which reads:

The Acting City Manager called the relevant Commissioner at home and advised her of the issue, who contacted the Director of Transit, who contacted the Operations Manager, who contacted the Supervisor on duty.

[15] The appellant argues that because the former city councillor was found to be in breach of the city Code, it is clear that the former councillor was not acting in his personal capacity and that, accordingly, the video does not contain the former councillor’s personal information.

[16] The appellant also submits that the councillor’s face can be blurred to avoid the disclosure of any personal information.

Analysis and finding

[17] As a general rule, information about an individual in their professional, official or business capacity is not considered to be “about” the individual.[4] 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]

[18] The former city councillor appears on the video and there is muffled audio. The video reveals the former city councillor’s image, demeanour and tone. In my view, even if his face is blurred, he is readily identifiable as a participant in the incident which was the subject of an investigation. The video is therefore recorded information about an identifiable individual, namely the former city councillor.

[19] Accordingly, I must next determine whether the information in the video reveals something of a personal nature about him. In my view, it does.

[20] It is the substance of the information and what would be revealed by disclosing the information that is germane. I find that because the former city councillor was the focus of a subsequent complaint and investigation into whether his conduct was in accordance with the city Code, the video has taken on a personal quality with respect to him.

[21] In that regard, I am following a long line of orders of this office that have held that information in records relating to an investigation into alleged improper conduct of individuals in their professional or official capacity becomes and is characterized as the personal information of those individuals.[6] Though he was a city councillor at the time and one might question whether he was acting in his official business capacity, I find that disclosure of this information, would reveal something of a personal nature about the former city councillor.

[22] I therefore find that the video contains the personal information of the former city councillor within the meaning of that term in section 2(1)  of the Act .

[23] The video does not contain any personal information of the appellant.

Issue B: Does the mandatory personal privacy exemption at section 14(1) apply to the video?

[24] One of the purposes of the Act  is to protect the privacy of individuals with respect to personal information about themselves held by institutions.

[25] Section 14(1)  of the Act  creates a general rule that an institution cannot disclose personal information about another individual to a requester. This general rule is subject to some exceptions.

[26] The section 14(1)(a) to (e) exceptions are relatively straightforward. If any of the five exceptions covered in sections 14(1)(a) to (e) exist, the institution must disclose the information. None of these exceptions appear to be relevant in this appeal.

[27] The section 14(1)(f) exception is more complicated. It requires the institution to disclose another individual’s personal information to a requester only if this would not be an “unjustified invasion of personal privacy.” Under section 14(1)(f), if disclosure of the personal information would not be an unjustified invasion of personal privacy, the personal information is not exempt from disclosure.

[28] Other parts of section 14 must be looked at to decide whether disclosure of the other individual’s personal information would be an unjustified invasion of personal privacy.

[29] Sections 14(2), (3) and (4) help in deciding whether disclosure would or would not be an unjustified invasion of personal privacy.

[30] Sections 14(3)(a) to (h) should generally be considered first.[7] These sections outline several situations in which disclosing personal information is presumed to be an unjustified invasion of personal privacy.

[31] If one of these presumptions applies, the personal information cannot be disclosed unless:

• there is a reason under section 14(4) that disclosure of the information would not be an “unjustified invasion of personal privacy,” or
• there is a “compelling public interest” under section 16 that means the information should nonetheless be disclosed (the “public interest override”).

[32] In this appeal, none of the parties raise the possible application of any of the presumptions in section 14(3).

[33] If the personal information being requested does not fit within any presumptions under section 14(3), one must next consider the factors set out in section 14(2) to determine whether or not disclosure would be an unjustified invasion of personal privacy. However, if any of the situations in section 14(4) is present, then section 14(2) need not be considered. In this appeal, none of the situations in section 14(4) have been claimed, nor do they appear to be relevant in the circumstances.

[34] 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.[8] Some of the factors weigh in favour of disclosure, while others weigh against disclosure. If no factors favouring disclosure are present, the section 14(1) exemption - the general rule that personal information should not be disclosed - applies because the exception in section 14(1)(f) has not been proven.[9]

[35] 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).[10]

[36] 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.

[37] In this case the city and the appellant address the possible application of section 14(2)(a), which weighs in favour of disclosure of the personal information. Section 14(2)(a) 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 disclosure is desirable for the purpose of subjecting the activities of the institution to public scrutiny …

The parties’ representations

[38] The city submits that the factor weighing in favour of disclosure at section 14(2)(a) does not apply because the former city councillor was not acting on behalf of the city or as a member of city counsel when the video was recorded. Therefore, the city asserts that the disclosure cannot be said to be desirable for the purpose of subjecting the activities of the city to public scrutiny.

[39] The appellant submits that disclosure of the video would subject the activities of the government to public scrutiny, in this case as represented by an elected official (the former city councillor) while dealing with public business, namely the municipal operations of the buses.

[40] The appellant adds that in his opinion, the information already in the public realm regarding the former city councillor reveals that he is unfit to hold public office. He submits that other members of the public may disagree, stating that “the voting public has a right to know and can make their own personal judgement accordingly at the ballot box.”

[41] The appellant submits that disclosure of the video will only result in minimal intrusion upon the councillor’s personal privacy and that the former city councillor’s actions on the day of the incident “are not inconsistent with past publicly known behaviors,” so disclosure of the video could not be said to “unduly damage his reputation.”

Analysis and findings

[42] Section 14(2)(a) is the only factor favouring disclosure raised by the parties. From my review, it is the only factor favouring disclosure that may be relevant in the circumstances.

[43] Section 14(2)(a) weighs in favour of disclosure when disclosure would subject the activities of the government (as opposed to the views or actions of private individuals) to public scrutiny.[11] It promotes transparency of government actions. The issues addressed in the information that is being sought do not have to have been the subject of public debate in order for this section to apply, but the existence of public debate on the issues might support disclosure under section 14(2)(a).[12] Institutions should consider the broader interests of public accountability when considering whether disclosure is “desirable” or appropriate to allow for public scrutiny of its activities.[13]

[44] The record at issue is a city bus video of a former elected city councillor involved in an incident involving a city bus and documents his conduct during that incident. The former city councillor’s conduct itself was investigated by the city under its city Code and an integrity report was created. The report itself was not challenged, nor were the reasons for its creation questioned. Simply put, in this instance the appellant is seeking a video of a former elected city councillor and not records that show the inner workings of the city or its processes. Accordingly, I find that disclosure of the video would not serve the purpose of subjecting the activities of the city to public scrutiny. I therefore find that section 14(2)(a) does not apply.

[45] As the appellant has failed to establish that any factor favouring disclosure in section 14(2)(a) applies[14], disclosing the video which I have found to contain the former councillor’s personal information would be unjustified invasion of personal privacy, and the exception at section 14(1)(f) is not engaged. Accordingly, I find that the video qualifies for exemption under section 14(1)  of the Act .

Issue C: Is there a compelling public interest in disclosure of the video that clearly outweighs the purpose of the section 14(1) exemption?

[46] The “public interest override” provision at section 16  of the Act  provides for the disclosure of records that would otherwise be exempt under another section of the Act . It states:

An exemption from disclosure of a record under sections 7, 9, 9.1, 10, 11, 13 and 14 does not apply if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

[47] The Act  does not state who bears the onus to show that section 16 applies. The IPC will review the records with a view to determining whether there could be a compelling public interest in disclosure that clearly outweighs the purpose of the exemption.[15]

[48] In considering whether there is a “public interest” in disclosure of the record, the first question to ask is whether there is a relationship between the record and the Act ’s central purpose of shedding light on the operations of government.[16] In previous orders, the IPC has stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices.[17]

[49] A “public interest” does not exist where the interests being advanced are essentially private in nature.[18] However, if a private interest raises issues of more general application, the IPC may find that there is a public interest in disclosure.[19]

[50] The IPC has defined the word “compelling” as “rousing strong interest or attention”.[20]

[51] The existence of a compelling public interest is not enough to trigger disclosure under section 16. This interest must also clearly outweigh the purpose of the exemption in the specific circumstances.

[52] An important consideration in balancing a compelling public interest in disclosure against the purpose of the exemption is the extent to which denying access to the information is consistent with the purpose of the exemption.[21]

The parties’ representations

[53] The appellant submits that the incident involved a public asset (a bus) and a public employee (a city bus driver), indicating that there is a public interest in the disclosure of the video that is the subject of his access request. The appellant asserts that at no point during the incident did the former city councillor advise the Acting City Manager that he was acting as a citizen in making the complaint or that he expected no special treatment because he was a city councillor. The appellant states that at the time the former city councillor was “effectively the boss of the Acting City Manager.” The appellant takes the position that during the incident the former city councillor was misusing his authority as an elected official.

[54] The appellant submits that he is requesting access to the video on behalf of the citizens of Kingston, Ontario who “are entitled to know and understand the character and actions of their elected representatives so they can make informed decisions on election day.”

[55] In addition to his representations reproduced in the discussion of section 14(2)(a) above, the appellant points to the findings and recommendations in the integrity report, where the former city councillor was found to be in breach of the Code for his actions that day. The appellant submits that this information should be available to the public so they can decide for themselves whether this information is of relevance or not to their voting decision, especially if he were to run again for politics.

[56] Finally, the appellant submits that:

The many issues of public interest related to elected officials, Code of Conduct violations, democracy, transparency and openness, the rights of the public to have access to relevant information when choosing who to vote for, to therefore make informed voting decisions as outlined throughout my submission all speak to other factors that should and need to be considered.

[57] The former city councillor submits generally that there is no public interest to be served by disclosure of the video.

Analysis and finding

[58] For section 16 to apply, two requirements must be met:

• there must be a compelling public interest in disclosure of the records; and
• this interest must clearly outweigh the purpose of the exemption.

[59] In considering whether there is a “public interest” in disclosure of the record, the first question to ask is whether there is a relationship between the record and the Act ’s central purpose of shedding light on the operations of government.[22]

[60] In this instance, I find that the investigation and public integrity report satisfied any public interest in the incident. The integrity report was detailed and thorough and considered the incident, recommending a sanction in the circumstances. The report was made public and adopted by city council. In my view, therefore, the disclosure of the video itself would not serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices.

[61] In any event, I also find that even if a compelling public interest in the video were found to exist, this interest would not clearly outweigh the purpose of the personal privacy exemption in section 14(1). I have found in my discussion of section 14(1) that the personal information in the video contains images of the former councillor whose actions on the day of the incident were investigated, and that this disclosure would constitute an unjustified invasion of personal privacy under section 14(1) and that the factor in section 14(2)(a) does not apply. Privacy protection is one of the enumerated purposes set out in section 1 (b) of the Act . I find that the appellant has not provided sufficient evidence that any public interest, compelling or otherwise, that may exist in the disclosure of this personal information sufficiently outweighs the privacy protection purpose extant in the section 14(1) exemption.

[62] Therefore, I find that the public interest override provision in section 16 has no application in the present appeal.

ORDER:

I uphold the decision of the city and dismiss the appeal.

Original Signed by:		February 25, 2025
Steven Faughnan
Adjudicator