ORDER PO-4643

Appeal PA22-00220

Ministry of the Solicitor General

April 22, 2025

Summary: Under the Freedom of Information and Protection of Privacy Act  (the Act ), the appellant asked the Ministry of the Solicitor General for Ontario Provincial Police records relating to allegations he made that a hospital technician had sexually assaulted him. The appeal arises because the appellant objects to the ministry’s decision to withhold the technician’s last name and her home address and telephone number from the records it disclosed to him. In this order, the adjudicator upholds the ministry’s claim of section 49(b) (personal privacy) of the Act  to withhold this information from the appellant. Although this information is contained in records of the appellant’s own personal information (i.e., records to which the appellant has a greater right of access under the Act ), disclosing the technician’s personal information in these circumstances would be an unjustified invasion of her personal privacy. The adjudicator dismisses the appeal.

Statutes Considered: Freedom of Information and Protection of Privacy Act , RSO 1990, c F.31, sections 2  (definitions), 21, 49(b).

OVERVIEW:

[1] The appellant alleges that he was sexually assaulted by a hospital technician during a visit to a particular hospital. He reported the incident to the Ontario Provincial Police (OPP), identifying the technician by first name. The appellant says the OPP investigated the allegations, but declined to lay charges.

[2] The appellant later made a request under the Freedom of Information and Protection of Privacy Act  (the Act ) to the Ministry of the Solicitor General (the ministry) for information relating to his report of the incident to the OPP. (The ministry is responsible for the OPP for the purposes of the Act .) Among other things, the appellant requested the technician’s “full name for court purposes.”

[3] In response, the ministry granted the appellant partial access to responsive records consisting of a witness statement made by the appellant, an occurrence summary, several supplementary occurrence reports, a general report, and copies of officers’ notebook entries. The ministry withheld certain portions of the records on the basis of section 49 (b) of the Act , which permits an institution to refuse to disclose to a requester another individual’s personal information, where disclosure of that information would be an unjustified invasion of that individual’s personal privacy. The ministry also withheld other portions of the records on the ground they are not responsive to the appellant’s request.

[4] The appellant was dissatisfied with the ministry’s decision and appealed it to the Office of the Information and Privacy Commissioner of Ontario (IPC).

[5] During the mediation stage of the IPC process, the appellant explained that he does not seek access to information withheld by the ministry on the ground it is not responsive to his request, or to any personal information of individuals other than the technician. Thus the only information remaining at issue in this appeal is the technician’s full name, and her home address and telephone number, which the ministry continues to withhold under section 49 (b) of the Act .

[6] As the matter could not be resolved through mediation, it moved to the adjudication stage of the appeal process, where I conducted an inquiry under the Act . The parties made representations on the issues, which were exchanged in accordance with the IPC’s Code of Procedure and Practice Direction #7.

[7] In this order, I uphold the ministry’s decision to withhold the technician’s personal information under section 49 (b) of the Act . I dismiss the appeal.

RECORDS:

[8] The information at issue in this appeal is the technician’s full name, and her home address and telephone number, which the ministry withheld from the records disclosed to the appellant.

DISCUSSION:

[9] The main issue in this appeal is whether the personal privacy exemption at section 49 (b) of the Act  applies to the information the appellant seeks.

[10] The section 49(b) exemption may apply where a record contains the “personal information” (a defined term in the Act ) of both the requester and another individual. Under the section 49(b) exemption, an institution like the ministry may refuse to disclose the other individual’s personal information to the requester where disclosing that information would be an unjustified invasion of that other individual’s personal privacy. Because the section 49(b) exemption is discretionary, an institution can decide to disclose the other individual’s personal information to the requester even if doing so would result in an unjustified invasion of the other individual’s personal privacy.

[11] For the section 49(b) exemption to apply in the circumstances, it is thus necessary to establish: that the records at issue contain “personal information” within the meaning of the Act ; that disclosure of the other individual’s personal information would be an “unjustified invasion” of that individual’s personal privacy; and that the ministry properly exercised its discretion under section 49(b) in withholding the personal information at issue.

[12] As will be seen below, I find all these conditions are met in the circumstances.

The records at issue contain the personal information of both the appellant and the technician

[13] Section 2(1)  of the Act  defines “personal information” to mean “recorded information about an identifiable individual,” including, among other things, information about the individual’s age (at paragraph (a) of the definition), the individual’s address and telephone number [paragraph (d)], the views or opinions of another individual about the individual [paragraph (g)]; and the individual’s name where it appears with other personal information relating to the individual, or where disclosure of the name would reveal other personal information about the individual [paragraph (h)].

[14] The records at issue arise from the appellant’s report to law enforcement authorities about a sexual assault that he says occurred during a hospital visit. These records are replete with the appellant’s personal information, including his name in the context of his report of an assault, his age at the time of the report, and his views of his encounter with the technician.

[15] The records also contain the personal information of the technician whom the appellant accuses of sexual assault. This personal information includes her home address and personal telephone number, which are captured in the definition of the term at paragraph (d).

[16] I also find that the technician’s full name, as it appears in these records, qualifies as her personal information within the meaning of section 2(1).

[17] Section 2(3)  of the Act  excludes from the definition of “personal information” an individual’s name where it identifies the individual in a business, professional, or official capacity. I find this exception does not apply in the circumstances, because the technician’s name does not appear in these records in connection with her business, professional, or official duties. Instead her name appears in the records because of the allegations the appellant made against her, and the resulting law enforcement investigation into the allegations. In this context, I find the technician’s name in the records reveals other personal information about her, including that she has been accused of assault by the appellant.

[18] Because the records contain the personal information of both the appellant and the technician, I now consider the ministry’s claim that the section 49(b) exemption applies to the discrete severances it made to the records.

The discretionary personal privacy exemption at section 49(b) applies to the information at issue

[19] Section 47(1)  of the Act  gives individuals a general right of access to their own personal information held by an institution. Section 49 provides some exemptions from this right.

[20] In withholding the technician’s personal information from the appellant, the ministry relies on section 49(b), which permits an institution to refuse to disclose to a requester his or her own personal information where doing so “would constitute an unjustified invasion of another individual’s personal privacy.”

[21] Sections 21(1) , (2) , (3) , and (4)  of the Act  provide guidance in deciding whether disclosure would be an unjustified invasion of the other individual’s personal privacy.

[22] Sections 21(1) and (4) set out exceptions and other situations where the disclosure of personal information would not be an unjustified invasion of personal privacy. During the inquiry I shared with the parties my preliminary view that none of the scenarios in sections 21(1) or (4) applies in the circumstances. Neither party disputed my preliminary view, and I confirm it here.

[23] Next, in deciding whether disclosure of the personal information at issue would be an unjustified invasion of personal privacy under section 49(b), the institution (or, on appeal, the IPC) must consider and weigh the factors and presumptions in sections 21(2) and (3), and must balance the interests of the parties.[1]

[24] Sections 21(3)(a) to (h) list several situations in which disclosing personal information is presumed to be an unjustified invasion of personal privacy under section 49(b). The ministry relies on the presumption at section 21(3) (b) of the Act , which states:

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

[25] I agree that the presumption at section 21(3)(b) applies in the circumstances. The presumption requires only that there be an investigation into a possible violation of law. The presumption may apply even if criminal proceedings were never started against an individual. There is no dispute that the information at issue here was collected in the course of an investigation by law enforcement authorities into the appellant’s allegations about a criminal offence.

[26] Section 21(2) lists several factors that may be relevant to determining whether disclosure of personal information would be an unjustified invasion of personal privacy.[2] Some of the factors weigh in favour of disclosure, while others weigh against disclosure. The institution must also consider any other circumstances that are relevant, even if these circumstances are not listed under section 21(2).[3]

[27] The ministry relies on the factor at section 21(2)(f), which weighs against the disclosure of personal information that is “highly sensitive.” To be considered “highly sensitive,” there must be a reasonable expectation of significant personal distress if the information were disclosed.[4] I agree this a relevant factor, and in the circumstances I accord it moderate weight.

[28] The technician’s personal information appears in the records because of serious allegations made against her. However, the records bear out that the OPP investigated these allegations, and (according to the appellant) declined to lay charges. Giving this factor moderate weight in the circumstances is consistent with the IPC’s general treatment of personal information about witnesses, complainants, or suspects in a police investigation. The IPC has found that this kind of personal information may be considered “highly sensitive,” and in determining whether and to what extent this factor applies, has taken into account relevant circumstances, including the nature of the investigation, and its outcome.[5]

[29] For his part, the appellant says he wants the technician’s last name and other information about her “for court purposes.”

[30] The appellant’s submission raises the potential application of the factor at section 21(2)(d), which weighs in favour of allowing a requester to obtain another individual’s personal information where that information is needed to allow the requester to participate in a court or tribunal process.[6] For this factor to apply, all four parts of the following test must be met:

1. The right in question must be a right existing in law;
2. The right must be related to a legal proceeding that is ongoing or might be brought, as opposed to one that has already been completed;
3. The personal information must be significant to the determination of the right in question; and
4. The personal information must be required to prepare for the proceeding or to ensure an impartial hearing.[7]

[31] The appellant has not established that the four-part test is met. Among other reasons, the appellant has not explained what claim he is pursuing, or that there is an existing or contemplated legal proceeding to address any such claim.

[32] The appellant offers to drop the matter if the technician apologizes to him, but this is not a remedy available through the IPC process.

[33] In summary, I find applicable the section 21(3)(b) presumption and the factor at section 21(2)(f), which weigh against disclosure of the technician’s personal information. I do not find applicable the factor at section 21(2)(d), or any other factor (listed or unlisted), weighing in favour of disclosure in the circumstances.

[34] After considering and weighing the factors and presumptions in sections 21(2) and (3), and balancing the interests of the parties, I find that section 49(b) applies to the technician’s personal information in the records.

The ministry properly exercised its discretion under section 49(b)

[35] As noted, the section 49(b) exemption is discretionary. This means the ministry can decide to disclose information even if the information qualifies for exemption under section 49(b). The ministry must exercise its discretion under the Act .

[36] On appeal, the IPC may determine whether an institution failed to exercise its discretion under the Act . In addition, the IPC may find that the institution erred in exercising its discretion where, for example, it does so in bad faith or for an improper purpose; it takes into account irrelevant considerations; or it fails to take into account relevant considerations. In either case, the IPC may send the matter back to the institution for an exercise of discretion based on proper considerations.[8] The IPC cannot, however, substitute its own discretion for that of the institution.[9]

[37] In this case, I am satisfied the ministry exercised its discretion under section 49(b), and that it did so properly. The ministry explains that in deciding to withhold from the appellant discrete portions of the records consisting of another individual’s personal information, it took into account factors including its practice of protecting personal information contained in law enforcement investigation records, and the impact on the other individual of any disclosure of her personal information. It is also evident from the ministry’s decision that in considering the appellant’s request, the ministry took into account the appellant’s higher right of access under the Act  to records of his own personal information. These were relevant factors for the ministry to consider in exercising its discretion under section 49(b). The appellant has not alleged any defect in the ministry’s exercise of discretion, and none is apparent to me. I uphold the ministry’s exercise of discretion.

[38] For all these reasons, I uphold the ministry’s decision to withhold the information at issue under section 49 (b) of the Act . I dismiss the appeal.

ORDER:

I uphold the ministry’s denial of access. I dismiss the appeal.

Original Signed by:		April 22, 2025
Jenny Ryu
Adjudicator