ORDER PO-4650

Appeal PA22-00520

Ministry of the Solicitor General

May 2, 2025

Summary: An individual asked the Ministry of the Solicitor General for video footage which he says shows him being attacked by another inmate while he was in a detention centre. The ministry denied access to the footage claiming that disclosure would be an unjustified invasion of another individual’s personal privacy (section 49(b)). The ministry also claimed that the footage qualified for exemption under various law enforcement exemptions (section 49(a), read with section 14(1)).

The adjudicator orders the ministry to disclose a redacted copy of one of four videos which contains images of the appellant and detention centre employees. The adjudicator upholds the ministry’s decision to withhold the remaining footage.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, sections 2(1)  (“personal information”), 14(1), 21(2)(f), 49(a) and 49(b).

Orders Considered: Order PO-2911

OVERVIEW:

[1] This order resolves an appeal of an access decision of the Ministry of Solicitor General (the ministry) under the Freedom of Information and Protection of Privacy Act  (the Act ). The appellant requested records relating to his incarceration at a detention centre for a specified time period, including any “video of attacks.”

[2] The ministry located four responsive videos along with other records. The ministry granted the appellant partial access to the records but withheld the video footage in its entirety. The ministry claimed that the withheld portions of the records qualified for exemption under various law enforcement and personal privacy provisions under the Act .

[3] The appellant appealed the ministry’s access decision to the Information and Privacy Commissioner of Ontario (the IPC) and a mediator was assigned to explore resolution with the parties. During mediation, the appellant confirmed that he only seeks access to the withheld video footage. The ministry maintained its position that various law enforcement and personal privacy exemptions apply to the video footage. As no further mediation was possible, the file was transferred to the adjudication stage of the appeals process in which an adjudicator may conduct an inquiry.

[4] I decided to conduct an inquiry and invited the written representations of the parties.[1] In its representations, the ministry confirms that it relies on section 49(a) (discretion to refuse a requester’s own information), read with the law enforcement exemptions at sections 14(1)(i), (j), (k) and (l) to withhold the footage. The ministry also takes the position that disclosure of the footage would constitute an unjustified invasion of personal privacy under section 49(b). As the appellant only seeks access to the video footage, the other exemptions, claimed by the ministry in its access decision and referenced in the mediator’s report relating to other records were removed from the scope of this appeal.

[5] In this order, the adjudicator orders the ministry to disclose a redacted copy of one of the four responsive videos which mostly contains images of the appellant and detention centre staff. The adjudicator upholds the ministry’s decision to withhold the remaining videos finding they contain information exempt under section 49(a) (law enforcement) and 49(b)(personal privacy).

RECORDS:

[6] The records remaining at issue are four separate videos of approximately five minutes long (the video footage). The video footage does not contain audio. Each video captures the images of inmates and detention centre staff in a large room with adjoining areas from four distinct vantage points. Videos two, three and four contain the appellant’s image along with the images of other inmates and staff. Video one does not contain the appellant’s image, only the images of other inmates and one staff member.

ISSUES:

1. Does the video footage contain “personal information” as defined in section 2(1) and, if so, whose information is it?
2. Does the discretionary personal privacy exemption at section 49(b) apply to the video footage?
3. Does the discretionary law enforcement exemption at section 49(a) apply to the video footage?

DISCUSSION:

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

[7] 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.

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

[9] “Recorded information” is information recorded in any format, such as paper records, electronic records, digital photographs, videos, or maps.[2]

[10] 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.[3] 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.[4]

[11] 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.[5]

[12] The ministry says that the video footage contains significant amounts of personal information of the appellant and other individuals. The appellant denies that any personal information is contained in the footage. The appellant says that is main interest in viewing the footage is to see what happened to his personal property during the altercation.

[13] I have reviewed the video footage and find that the images of the following individuals are captured:

• the appellant,
• inmates whose images are captured during their interactions with the appellant,
• inmates whose images and movements are contained in the footage though they do not interact with the appellant,
• detention center staff.

[14] The ministry says in its representations that most of the individuals whose images appear in the footage were not directly involved in the altercation. The ministry also states:

Given the location of the cameras, it had the effect of capturing the images and movements of many affected third-party individuals who happened to be present during the responsive time-period in the large sized interior space of the Detention Centre.

The identifiability of the individuals includes not just individuals faces, but also potentially their body type, height and other personal characteristics, which may serve to identify them. The individuals who were involved in the altercation with the appellant are more likely to be identifiable to the appellant simply because they would be recognizable as a result of their actions.

The Ministry notes that disclosure of the record would not only reveal the images and movements of affected third-party individuals, but the record would also link them to their incarceration (at the detention centre).

[15] Having regard to the representations of the parties and the video footage itself, I find that the images of the appellant and other inmates in the footage constitutes their “personal information” as defined in paragraphs (a) and (b) in section 2(1)  of the Act .[6] As noted above, the appellant’s image is contained in videos two, three and four along with the images of other inmates and detention staff. I am satisfied that it is reasonable to expect that these individuals can be identified from viewing the footage in which they appear.

[16] Video one only contains the images of other inmates and a detention staff member. Though the appellant’s image does not appear in video one, I am satisfied that this video also contains his “personal information” as defined in paragraph (b) in section 2(1)[7] given the context of the video. This video is one of the four vantage points of a large interior space in a correctional facility in which the appellant says he was assaulted while being incarcerated. Having viewed the video footage, I am satisfied that video one contains information about the assault given that it is clear that the individuals’ whose image are contained in the video are observing the altercation involving the appellant.

[17] However, I find that the images of individuals working at the detention centre in any of the footage cannot be said to contain their personal information. Nothing in the representations of the parties suggests that the images of staff reveal something of a personal nature about them. Accordingly, I find that the images of detention staff in any of the footage does not constitute their “personal information” as it relates to their professional obligations. As a result, I find that the personal privacy exemption cannot apply to this information.

[18] I will go on to determine whether the inmates’ images in the footage qualifies for the discretionary personal privacy exemption at section 49(b).

Issue B: Does the discretionary personal privacy exemption at section 49(b) apply to the video footage?

[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] Under the section 49(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.[8]

[21] The section 49(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 another individual’s personal privacy.

[22] If disclosing another individual’s personal information would not be an unjustified invasion of personal privacy, then the information is not exempt under section 49(b).

[23] Sections 21(1) to (4) provide guidance in deciding whether the information is exempt under 49(b). If any of the exceptions in section 21(1)(a) to (e) apply, disclosure would not be an unjustified invasion of personal privacy and the information is not exempt from disclosure under section 49(b).

[24] In deciding whether either of the section 49(b) exemption or the section 21(1)(f) exception to the section 21(1) exemption applies, sections 21(2), (3) and (4) help in determining whether disclosure would or would not be an unjustified invasion of personal privacy.

[25] Sections 21(2), (3) and (4) also help in deciding whether disclosure would or would not be an unjustified invasion of personal privacy under section 49(b). Section 21(4) lists situations where disclosure would not be an unjustified invasion of personal privacy, in which case it is not necessary to decide if any of the factors or presumptions in sections 21(2) or (3) apply. In this appeal, the parties did not argue that section 21(4) applies, and I am satisfied that this section has no application.

[26] For records claimed to be exempt under section 49(b) (that is, records that contain the requester’s personal information), the decision-maker must consider and weigh the factors and presumptions in sections 21(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.[9]

[27] In this matter, the ministry does not claim that any of the presumptions at section 21(3) apply and I am satisfied that none apply. However, the ministry says that the factor favouring privacy protection at section 21(2)(f) applies. This section states:

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 is highly sensitive;

[28] Section 21(2)(f) is intended to weigh against disclosure when the evidence shows that the personal information is highly sensitive. To be considered “highly sensitive,” there must be a reasonable expectation of significant personal distress if the information is disclosed.[10] For example, personal information about witnesses, complainants or suspects in a police investigation may be considered highly sensitive.[11]

Representations of the parties

[29] The ministry takes the position that disclosure of the video footage to the appellant would constitute an unjustified invasion of personal privacy under section 49(b). The ministry cites section 21(2)(f) and says that the records are “highly sensitive” and “stigmatizing.” The ministry asserts that disclosure to the appellant would cause significant personal distress to the other individuals whose images appear in the footage. In support of its position, the ministry says that the other individuals who appear in the footage “have a heightened expectation of privacy, especially due to [the detention centre] being a maximum security correctional institution.”

[30] The appellant says the ministry can “blur out faces if they’re concerned of others’ privacy” and that he should not be left responsible to pay for property he lost during the altercation.

[31] The ministry says that it considered whether exempt portions of the video footage could be severed from non-exempt portions and states:

We submit that the record cannot be severed without disclosing information that has been properly exempted. The question of whether a record containing exempted material can be severed is highly dependent on the particular circumstances of an appeal. Given that the record shows the layout of a large interior barracks-type room of a Detention Centre, we do not believe that any severing can occur. While obscuring technology might be applicable for the faces of the affected third party individuals, it still might result in the individuals involved in the altercation being identifiable to the appellant.

[32] Finally, the ministry says that regardless of how much knowledge the appellant has about the altercation, the absurd result principle does not apply in the circumstances of this appeal. The ministry says that disclosure would be inconsistent with the purpose of the exemption which is to protect the privacy of other individuals. The ministry says that in this case, the images of incarcerated individuals give rise to “particular sensitivity inherent in records compiled in a law enforcement context.”[12]

Analysis and finding

[33] I have reviewed the representations of the parties along with the video footage and find that the personal information of other inmates qualifies for exemption under section 49(b). In making my decision, I note that the appellant appears only in three of the four videos. Of the three videos in which the appellant’s image appears, he appears mostly in video number two. The appellant’s images in videos three and four are brief occurrences. As noted above, though the appellant’s image does not appear in video one, I find that it contains his personal information along with the personal information of the inmates whose images appear in this video.

[34] In all cases, where the image of an inmate appears, I find that disclosure of their image to the appellant could reasonably be expected to cause significant personal distress. In making my decision, I took into consideration that these individuals’ images appear in a context in which they were incarcerated in a detention centre and were witnesses or participants in an altercation. Accordingly, I find that the factor at section 21(2)(f) weighing in favour of privacy protection applies to this information.

[35] I find that there are no factors that support disclosure of the portions of the footage which contain the images of inmates to the appellant. The appellant says that he wants access to the video footage to determine what happened to his personal property during the altercation. The appellant also asserts that he should not be left solely responsible to replace his personal belongings that were misplaced during the altercation. In my view, the appellant’s evidence does not give rise to the possible application of any of the listed factors at section 21(2) weighing in favour of disclosure. For instance, the appellant’s evidence does not suggest that he needs the information to participate in a court or tribunal process.[13] I considered the appellant’s assertions regarding his missing property as an unlisted factor but find that any weight attributed to this would be so slight to have no effect. The purpose of the privacy exemption is to protect the identifiability of individuals where they have not consented to disclose their personal information. I agree with the ministry’s submission that in places where individuals are detained, their expectation of privacy is heightened.

[36] As noted above, I am satisfied that none of the situations in section 21(4) or the presumptions at section 21(3) apply in the circumstances of this appeal. As I found that no listed or unlisted factors weighing in favour of disclosure apply, I find that disclosure of the inmates’ images to the appellant would constitute an unjustified invasion of personal privacy under section 49(b) having regard to the factor weighing against disclosure at section 21(2)(f). Accordingly, this information qualifies for exemption under section 49(b).

[37] While I have found that the personal information relating to other inmates qualifies for exemption, I must also consider whether the absurd result principle applies in the circumstances of this appeal. I also must determine whether any information found exempt can be reasonably severed from non-exempt information, such as the appellant’s own image and the images of detention staff captured in the footage.

Absurd result principle

[38] In its representations, the ministry asserts that even though the appellant may recall what occurred in the footage the absurd result principle does not apply. The absurd result principle considers whether an institution can rely on the section 49(b) exemption in cases where the requester originally supplied the information in the record or is otherwise aware of the information contained in the record. In these types of situations, withholding the information might be absurd and inconsistent with the purpose of the exemption.[14] However, if disclosure is inconsistent with the purpose of the exemption, the absurd result principle may not apply.[15]

[39] The “absurd result” principle has been applied when the requester sought access to their own witness statement,[16] the requester was present when the information was provided to the institution,[17] or the information was or is clearly within the requester’s knowledge.[18]

[40] I have considered whether the absurd result principle could apply in the circumstances of this appeal and find that it cannot. In my view, disclosing the personal information of other individuals to the appellant is inconsistent with the purpose of the personal privacy exemption, particularly given the sensitivity of the information at issue and the context in which it appears. For the same reasons, I am satisfied that the ministry properly exercised its discretion in good faith to deny the appellant access to the personal information of other individuals. In arriving at this decision, I find that the ministry took into relevant considerations and did not take into account irrelevant considerations or make its decision in bad faith.

Severance

[41] Section 10(2) provides that the ministry “… shall disclose as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemptions.”

[42] As noted above, the footage captures the images of the appellant and other individuals in a large room from four distinct vantage points. In my view, the images of inmates in videos three and four can not be reasonably severed from the appellant’s image given the proximity in which the images appear from each other, the number of other individuals in the frame and the brief amount of time the appellant appears in these videos. I also considered whether the images of other inmates could reasonably be severed from the image of the sole detention staff member who appears briefly in video one. In my view, an attempt to sever non-exempt information from exempt information in video one would result in the disclosure of meaningless snippets of information. Section 10(2) does not require the ministry to sever records for disclosure where to do so would reveal only meaningless information.[19]

[43] However, I am of the view that exempt information (the images of inmates) from non-exempt information (the images of the appellant and detention centre staff) in video two can be reasonably severed. The appellant appears in video two when the altercation commences and stays in that frame for the majority of time the footage runs. Images of staff also appear in this frame along with images of a few inmates who moved in and out of the frame. Though I find that the inmates’ images can be reasonably severed, I do not agree with the appellant’s suggestion that just their faces need to be “blurred.” I find that the entire image of the inmates in video two can be reasonably severed using a full-body redaction tool or obscuring technology. Given the proximity of the few inmates who enter the frame in video two to interact with the appellant, the obscuring method used by the ministry may overlap with the appellant’s image. However, severing the frame in this manner is in keeping with section 10(2) which directs the ministry to disclose as much of the record as can reasonably be severed without disclosing exempt information.

Summary

[44] I find that most of the footage qualifies for exemption under section 49(b) and uphold the ministry’s decision to withhold this information. However, I find that the exempt portions in video two can be reasonably severed from non-exempt portions and order the ministry to use a redaction tool or obscuring technology to disclose the non-exempt portions to the appellant. As noted above, I am satisfied that the ministry properly exercised its discretion to deny the appellant’s access to the personal information of other individuals.

Issue C: Does the discretionary law enforcement exemption at section 49(a) apply to the video footage?

[45] Section 49 (a) of the Act  states:

A head may refuse to disclose to the individual to whom the information relates personal information,

where section 12, 13, 14, 14.1, 14.2, 15, 15.1, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information.

[46] The discretionary nature of section 49(a) (“may” refuse to disclose) recognizes the special nature of requests for one’s own personal information and the desire of the Legislature to give institutions the power to grant requesters access to their own personal information.[20]

[47] In this case, the ministry relies on section 49(a) with sections 14(1)(i), (j), (k) and (l), which state:

14 (1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,

(i) endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required;

(j) facilitate the escape from custody of a person who is under lawful detention;

(k) jeopardize the security of a centre for lawful detention; or

(l) facilitate the commission of an unlawful act or hamper the control of crime.

[48] The appellant asserts that he has a right to view the video footage. His representations did not specifically address the ministry’s claim that certain law enforcement exemptions apply.

[49] The ministry says that in the context of this appeal, the exemptions claimed are similar and thus it has grouped its representations together. The ministry says that the exemptions relate to the context of “the security of a correctional institution” or endanger the safety of a building (sections 14(1)(i), (j) and (k)). All of which has the effect of facilitating unlawful acts or hampering the control of crime (section 14(1)(l)).

[50] In support of its position, the ministry cites Order PO-2911 and states:

… the record ought to be exempted under section 14 because it captures a significantly sized barracks-type room and adjoining areas …. containing many beds and what appears to be a common area. The record therefor not only captures the exact layout of this space, but also where cameras are mounted on it.

[51] However, the only information remaining at issue in this appeal is video two which does not depict the large barracks-type rooms or common areas. I found that the videos that depicted these configurations within the detention centre exempt under section 21(1). In addition, I found that the appellant’s images in videos three and four can not be reasonably severed from exempt information. As a result, video two cannot be said to capture images of the exact layout of a common area.[21]

[52] The ministry also states that it:

.. is concerned that disclosure of the altercation could pose unforeseeable risks for the affected individuals who are captured in the altercation in the record, and who have not been notified of this appeal. The adversarial and violent nature of this dispute causes us concern as to the kinds of unforeseeable harms that might occur between the affected individuals featured in the records to be disclosed.

[53] Given my finding that the personal privacy exemption under section 49(b) applies to any images of inmates contained in record two, I am satisfied that no unforeseeable risks exist for the few individuals whose full-body image has already been ordered to be obscured.

[54] Finally, the ministry says that a “careful and cautious approach” should temper my review of its decision to withhold the footage. The ministry refers to a Court of Appeal of Ontario case which stands for the proposition that the law enforcement exemption must be approached in a sensitive manner, because it is hard to predict future events in the law enforcement context.[22]

Analysis and finding

[55] As noted above, video two does not capture the lay-out of a common area. Nor does the information remaining at issue in video two capture the full-body images of the few inmates would walked in and out of the room where the appellant was present. I already found that the images of idetifiable inmates in this video qualifies for exemption under section 49(b). Accordingly, the question before me is whether the remaining information in record two qualifies for exemption under any of the discretionary law enforcement exemptions claimed by the ministry.

[56] As noted above, the ministry grouped its submissions for each law enforcement provision it relies upon with section 49(a). Accordingly, I have decided to group my findings in the same manner.

[57] For section 14(1)(i) (endanger security of a building, vehicle, system or procedure) to apply in this appeal, there must be a reasonable basis for concluding that disclosure of the information at issue could be expected to endanger the security of a building or of a system or procedure established for the protection of items, for which protection is reasonably required.

[58] For section 14(1)(j) (facilitate escape from lawful custody) to apply, there must be a reasonable basis for concluding that disclosure of the information at issue could be expected to facilitate the escape from custody of a person who is under lawful detention.

[59] For section 14(1)(k)(jeopardize the security of a centre for lawful detention) to apply, there must be a reasonable basis for concluding that disclosure of the information at issue could be expected to jeopardize the security of a centre for lawful detention.

[60] For section 14(1)(l) to apply, there must be a reasonable basis for concluding that disclosure of the information at issue could be expected to facilitate the commission of an unlawful act or hamper the control of crime.

[61] I have considered the ministry’s evidence along with video two and find that the only information in the footage which could reasonably be expected to give rise to the harms outlined in sections 14(1)(i), (j), (k) and (l) is information which may reveal the placement of the camera in the room. The ministry’s representations say little about this issue and simply asserts that disclosure of the video would reveal “where cameras are mounted.” However, taking into account that the law enforcement exemption must be approached in a sensetive manner, I find that disclosure of portions of video two could reasonably be expected to reveal the placement and perhaps the capabilty of the camera in the room and find this information qualifies for exemption under section 49(a) with sections 14(1)(i), (j), (k) and (l). Though the ministry did not argue that the appellant’s or detention staff images qualify for exemption under section 49(a), for the sake of clarity, I find that this information does not qualify for exemption under section 49(a).

[62] I am satisfied that the ministry properly exercised its discretion properly and in good faith in relying on section 49(a) to address its concerns about camera placement. In arriving at this decision, I find that the ministry took into relevant considerations such as the purpose of the law enforcement exemption and did not take into account irrelevant considerations or make its decision in bad faith.

[63] The ministry takes the position that the video footage “cannot be severed without disclosing information that has been properly exempted.” In support of its position, the ministry argues that obsuring technology could not effectively sever “a large interior barracks-type room” or protect the identity of other inmates if just their faces were obscured. However, the information remaining at issue does not capture these images.

[64] Once the images of the other inmates is obscured, as I ordered earlier in this order, the only information left in video two are the images of the appellant and detention staff and the background in which they appear.

[65] Based on my review of video two, I am satisfied that obscuring technology can be used to redact exempt information (images of inmates and camera placement) from non-exempt information (images of the appellant and staff) in the footage. For example, obscuring technology can be used to blur, feather, fade to black or soften the entire perimeter of the video to redact information that may reveal information about the camera placement from non-exempt information contained in the video.

[66] For the reasons set out above, I order the ministry to disclose to the appellant the images of himself and employees in video two. However, I order the ministry to blur the perimeter of the frame in video two to redact the information I found exempt under section 49(a) with sections 14(1)(i), (j), (k) and (l).

ORDER:

1. I order the ministry to disclose to the appellant images of himself and employees in video two using redaction tools and obscuring technology to blur the perimeter and remove the full body images of other identifiable inmates by June 2, 2025.
2. I uphold the ministry’s decision to withhold videos two, three and four in their entirety.
3. In order to verify compliance with order provision 1, I reserve the right to require the ministry to provide me with a copy of video one ordered disclosed to the appellant.

Original Signed by:		May 2, 2025
Jennifer James
Adjudicator