ORDER PO-4651

Appeal PA23-00427

Ministry of the Solicitor General

May 5, 2025

Summary: The requester sought access to information about individuals who called the Ontario Provincial Police about his mental health status. He made a request to the Ministry of the Solicitor General under the Freedom of Information and Protection of Privacy Act . The ministry denied access to the information in the records in part under the discretionary exemption permitting an institution to refuse a requester’s own information at section 49(a), read with the law enforcement exemption at section 14(1)(l) (facilitate commission of an unlawful act), and the discretionary personal privacy exemption at section 49(b) of the Act.

In this order, the adjudicator finds that some of the information that has been withheld is not personal information and orders the ministry to disclose it to the appellant. The adjudicator upholds the ministry’s decision to deny access to the remaining information under section 49(a), read with section 14(1)(l), and section 49(b).

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

Orders Considered: Orders MO-2008 and P-1618.

OVERVIEW:

[1] The requester sought access to information about individuals who called the Ontario Provincial Police (the OPP) about his mental health status. He made a request to the Ministry of the Solicitor General (the ministry) under the Freedom of Information and Protection of Privacy Act (FIPPA or the Act) for:

…personal file records of [the requester] from the OPP[1] [named] detachment. Any Form 2s,[2] calls from daughters, neighbours, son-in-law, family, priests, doctors, etc., to report or check up or pick [the requester] up, etc. between [January 1,] 2013 and [June 1,] 2023.

[2] The ministry issued a decision granting partial access to the requested records. It denied access to some information under section 49(a) (discretion to refuse requester’s own information), read with section 14(1)(l) (facilitate commission of an unlawful act), and section 49(b) (personal privacy) of the Act. The ministry also advised that it withheld some information from the records because it is not responsive to the access request.

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

[4] During mediation, the ministry issued a revised decision, advising that it had reconsidered its initial access decision and had decided to disclose additional information to the appellant. In its revised decision, the ministry continued to deny access to the remaining information under the same exemptions that it had previously claimed and on the basis that some of it is not responsive to the request.

[5] The appellant told the mediator that he is not seeking the information that the ministry claims is not responsive to the request. The appellant also advised that he is not seeking any civilian employment numbers redacted from the responsive records. As a result, civilian employment numbers and information withheld as not responsive are no longer at issue in this appeal.[3]

[6] As mediation did not resolve the appeal, this file proceeded to adjudication where an adjudicator may conduct an inquiry. I decided to conduct an inquiry and sought and received representations from both the ministry and the appellant.

[7] In this order, I order the ministry to disclose to the appellant information that I find is not personal information. I find that the exemptions at section 49(a), read with section 14(1)(l) and section 49(b), apply to the remaining information for which it was claimed, and I uphold the ministry’s decision to deny access to it.

RECORDS:

[8] The records remaining at issue in this appeal are OPP reports. The information that remains at issue is that which the ministry has withheld from records 1 to 4 and 9 to 11:[4]

• 1 is a 2014 one-page Occurrence Summary
• 2 is a 2014 one-page Arrest Report
• 3 is a 2017 one-page Occurrence Summary
• 4 is a 2017 one-page General Report
• 9 is a 2014 one-page Occurrence Summary
• 10 is a 2014 one-page General Report
• 11 is a 2017 one-page Occurrence Summary

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 discretionary personal privacy exemption at section 49(b) apply to the information at issue in records 1, 3, 4, and 9 to 11?
3. Does the discretionary exemption at section 49(a), allowing an institution to refuse access to a requester’s own personal information, read with the law enforcement exemption at section 14(1)(l), apply to the police code information in records 1 to 3, and 9 to 11?
4. Did the institution exercise its discretion under sections 49(a) and 49(b)? If so, should the IPC uphold the exercise of discretion?

DISCUSSION:

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

[9] 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.

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

[11] “Recorded information” is information recorded in any format, such as paper records, electronic records, digital photographs, videos, or maps.[5]

[12] 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.[6]

[13] 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.[7]

[14] 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.[8]

[15] 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.

[16] 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.”[9]

[17] 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.[10] Also, if the record contains the personal information of other individuals, one of the personal privacy exemptions might apply.[11]

Representations

[18] The ministry states that the records were created due to concerns communicated to the OPP that the appellant may be experiencing mental health challenges, and they document the OPP’s response to those concerns. It submits that the records contain significant amounts of personal information collected from complainants, including their names (paragraph (h)), dates of birth (paragraph (a)), addresses and telephone numbers (paragraph (d)), and the statements they provided to the OPP (paragraph (g)).

[19] The ministry further submits that these statements contain the personal information of the appellant. Specifically, it submits that they contain the appellant’s name, together with other personal information about him (paragraph (h), including the views and opinions of other individuals about the appellant (paragraph (g)).

[20] The appellant did not address this issue of whether the records contain personal information and to whom that personal information relates, in his representations.

Analysis and findings

[21] From my review of the records and the ministry’s representations, I accept that the records contain the personal information of the appellant as well as the personal information of other identifiable individuals.

[22] All of the records contain the appellant’s personal information as they are OPP reports about him and describe his mental state and his actions. The personal information of the appellant in the records includes his name, along with his date of birth, medical history, address, phone number, driver’s licence number, and his views or opinions or the views or opinions of others about him. This information falls within the types of personal information in all of the paragraphs of the definition of personal information set out above, with the exception of the type of information described in paragraph (f). Most of this information has been disclosed to the appellant.

[23] The records also contain the personal information of other identifiable individuals, specifically the complainants who provided information to the OPP in their personal and in their professional capacity about the appellant’s mental health status and actions.

[24] Some of the individuals who provided information to the OPP about the appellant did so in their personal capacity. Accordingly, the records contain the personal information of these individuals including their dates of birth, addresses, phone numbers, views or opinions, driver’s licence numbers, along with their names that appear with other personal information about them. This information falls within the types of personal information in all of the paragraphs of the definition of personal information set out above, with the exception of the type of information described in paragraph (f).

[25] Some of the individuals provided information to the OPP in their professional capacity as doctors or police officers. Some of this information has been disclosed to the appellant while some of it has not. Having reviewed the information that has not been disclosed to the appellant, I find that the information about the appellant that has been provided by doctors and police officers is not personal information. This information is these doctors’ or police officers’ professional opinions or views of the appellant.

[26] As the doctors’ and the police officers’ professional opinions of the appellant is not their own personal information and does not reveal something of a personal nature about them, I find that the personal privacy exemption cannot apply to it. Disclosure of this information would not reveal the personal information of any identifiable individual other than the appellant. As no other exemptions have been applied to this information, I will order the ministry to disclose it to the appellant.

[27] As all of the records contain the personal information of the appellant as well as that of other identifiable individuals, I must consider the appellant’s right of access to the information that has been withheld under the discretionary exemptions at sections 49(a) and 49(b).

Issue B: Does the discretionary personal privacy exemption at section 49(b) apply to the information at issue in records 1, 3, 4, and 9 to 11?

[28] 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.

[29] 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.

[30] 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 other individual’s personal privacy.

[31] 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).

[32] Also, the requester’s own personal information, standing alone, cannot be exempt under section 49(b) as its disclosure could not, by definition, be an unjustified invasion of another individual’s personal privacy.[12]

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

[34] 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). None of these exceptions apply.

[35] 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. If any of the paragraphs in section 21(4) apply, disclosure of personal information is not an unjustified invasion of personal privacy under section 49(a), and it is not necessary to decide if any of the factors or presumptions in sections 21(2) or (3) apply. Section 21(4) has not been claimed by the parties and does not apply in the circumstances of this appeal.

[36] Therefore, in deciding whether the disclosure of the personal information in the records would be an unjustified invasion of personal privacy under section 49(b), the decision-maker[13] must consider and weigh the factors and presumptions in sections 21(2) and (3) and balance the interests of the parties.[14]

[37] 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). None of the parties have claimed that any of the presumptions in section 21(3) apply in the circumstances and from my review none apply.

[38] 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.[15] Some of the factors weigh in favour of disclosure, while others weigh against disclosure.

[39] The list of factors under section 21(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 21(2).[16]

Representations

[40] In support of its position that disclosure of the withheld information would be an unjustified invasion of the personal privacy of the complainants who provided the information to the OPP in their personal capacity, the ministry claims that the factors at sections 21(2)(f) and (h) that weigh against disclosure are relevant and apply in the circumstances of this appeal. These sections state:

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,

(f) the personal information is highly sensitive;

(h) the personal information has been supplied by the individual to whom the information relates in confidence[.]

[41] In support of its claim that section 21(2)(f) applies, the ministry relies on Order P-1618, where the IPC found that the personal information of individuals who are "complainants, witnesses or suspects" as part of their contact with the OPP is "highly sensitive" for the purpose of section 21(2)(f). The ministry submits that disclosure of this type of information can be expected to be especially distressing given the nature of the personal information at issue.

[42] In support of its claim that section 21(2)(h) applies, the ministry submits that the information at issue has been supplied by the complainants in confidence. The ministry specifically relies upon Order MO-2008. In that order, the records were prepared as a result of the police being notified by two identifiable individuals about certain mental health concerns which they had respecting the appellant. The information described their concerns and also identifies the individuals who raised them with the police. The adjudicator found that this information was provided to the police with an expectation that it would be treated confidentially and the factor favouring the non-disclosure of personal information in section 21(2)(h)[17] applied.

[43] The appellant does not specifically claim that any of the listed or unlisted factors favouring disclosure apply. However, he submits that there is no proof that he was experiencing mental health challenges or had committed any crimes or unlawful acts. He submits that it is not fair to him that a third party can express concerns about him and that he is denied access to this information. The appellant further submits that he has a right to obtain the information requested in this appeal.

Analysis and findings

[44] The information that the ministry has withheld from the records is information provided by the complainants in their personal capacity who provided the OPP with information about the appellant’s mental health and his behaviour.

[45] As explained above, 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.[18] As noted above and as submitted by the ministry, the IPC has previously found that personal information about witnesses, complainants, or suspects provided during the course of a police investigation may be considered highly sensitive for the purposes of section 21(2)(f).[19]

[46] In this case, based on my review of the records and the parties’ representations, I find that the factor weighing against disclosure in section 21(2)(f) applies. I accept that there is a reasonable expectation that if the personal information of the complainants were disclosed to the appellant, they would experience significant personal distress. The records describe a highly sensitive situation where the appellant interacted with the complainants and appears to have exhibited behaviour that was disturbing to the complainants. In keeping with previous IPC orders, I find that the complainants’ personal information provided to the OPP in this context qualifies as highly sensitive.

[47] The factor in section 21(2)(h) weighs against disclosure 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.”[20] Based on my review of the records, and the situations under which it was provided to the OPP, I find that the personal information has been supplied by the complainants in confidence and that the factor weighing against disclosure at section 21(2)(h) applies to it.

[48] The appellant did not explicitly raise the application of any specific factors in section 21(2) or any unlisted factors weighing in favour of disclosure. His position is that he would like access to the complainants’ personal information as it is his right to do so and because he was not suffering from mental health issues.

[49] I note that the factor at section 21(2)(d)[21] weighing in favour of disclosure applies if it is established that disclosure of personal information is relevant to fair determination of the rights affecting the person who made the request. Although the appellant says he needs to defend his rights, he has not provided any evidence that disclosure of the information at issue in the records to “defend his rights”. Nor is it apparent to me from my review of the records that the information at issue, which is from 2014 and 2017, is relevant to a fair determination of the appellant’s rights at this time, nor even what these rights would be as they relate to the information at issue in the records.

[50] I have also reviewed and considered other listed and unlisted factors weighing in favour of disclosure, in my view, none appear to apply.

[51] In deciding whether the disclosure of the personal information in the records would be an unjustified invasion of the complainants’ personal privacy under section 49(b), I have considered, weighed the factors in section 21(2), and balanced the interests of the parties. In doing so, I have balanced the appellant’s right to access his own information against the complainants’ rights to have their privacy protected and I note that the ministry has disclosed all of the complainant’s personal information to him with the exception of the information that is inextricably linked with the personal information of the complainants. I have found that the factors in sections 21(2)(f) and 21(2)(h), which weigh against disclosure of the information at issue, apply. I have also found that no factors favouring disclosure, either listed in section 21(2) or unlisted, apply.

[52] Therefore, I find that disclosure of the personal information at issue in the records would be an unjustified invasion of the complainants’ personal privacy under section 49(b). I will consider below whether the ministry exercised its discretion in a proper manner in withholding the complainants’ personal information.

Issue C: Does the discretionary exemption at section 49(a), allowing an institution to refuse access to a requester’s own personal information, read with the law enforcement exemption at section 14(1)(l), apply to the police code information in records 1 to 3, and 9 to 11?

[53] Section 49(a) of the Act reads:

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. [emphasis added]

[54] 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.[22]

[55] If the institution refuses to give an individual access to their own personal information under section 49(a), the institution must show that it considered whether a record should be released to the requester because the record contains their personal information.

[56] In this case, the ministry relies on section 49(a) read with the law enforcement exemption at section 14(1)(l) to withhold some of the information in the records. Section 14(1)(l) states:

A head may refuse to disclose a record if the disclosure could reasonably be expected to,

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

[57] The law enforcement exemption must be approached in a sensitive manner, because it is hard to predict future events in the law enforcement context, and so care must be taken not to harm ongoing law enforcement investigations.[23]

[58] However, the exemption does not apply just because a continuing law enforcement matter exists,[24] and parties resisting disclosure of a record cannot simply assert that the harms under section 14 are obvious based on the record. They must provide detailed evidence about the risk of harm if the record is disclosed. While harm can sometimes be inferred from the records themselves and/or the surrounding circumstances, parties should not assume that the harms under section 14 are self-evident and can be proven simply by repeating the description of harms in the Act.[25]

[59] Parties resisting disclosure must show that the risk of harm is real and not just a possibility.[26] However, they do not have to prove that disclosure will in fact result in harm. How much and what kind of evidence is needed to establish the harm depends on the context of the request and the seriousness of the consequences of disclosing the information.[27]

[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.

Representations

[61] The ministry claims that section 49(a), read with section 14(1)(l)[28] applies to exempt all police operational codes from disclosure. The ministry submits that the police operational codes, such as flags, area and location codes, and police ten codes are used by law enforcement agencies such as the OPP to routinely communicate with one another using coded language that would not likely be known to the public.

[62] The ministry submits that disclosure of the codes could make it easier for individuals carrying out criminal activities to have knowledge of confidential internal communications, which could jeopardize the security of law enforcement systems and the safety of the OPP staff identified by them.[29]

[63] The appellant did not provide representations on this issue.

Analysis and findings

[64] I agree with the ministry that the police operational codes are subject to exemption under section 49(a), read with the law enforcement exemption at section 14(1)(l).

[65] The IPC has issued numerous orders where it has considered police codes and has consistently found that section 14(1)(l) applies to the police operational code information. I agree with and adopt the findings in these orders.[30] In keeping with the reasoning applied in these orders, I find that disclosure of police operational code information would leave OPP officers more vulnerable and compromise their ability to provide effective policing services as it would be easier for individuals engaged in illegal activities to carry them out, and would jeopardize the safety of OPP officers.

[66] Accordingly, I find that disclosure of the police operational codes in the records could reasonably be expected to make it easier for someone to commit an unlawful act or get in the way of the control of crime. Therefore, I find that this information is exempt under section 49(a) read with section 14(1)(l). I will consider below whether the ministry exercised its discretion in a proper manner in deciding to withhold this information.

Issue D: Did the institution exercise its discretion under sections 49(a) and 49(b)? If so, should the IPC uphold the exercise of discretion?

[67] The sections 49(a) and (b) exemptions are discretionary (the institution “may” refuse to disclose), meaning that the institution can decide to disclose information even if the information qualifies for exemption. An institution must exercise its discretion. On appeal, the IPC may determine whether the institution failed to do so.

[68] 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.

[69] In either case, the IPC may send the matter back to the institution for an exercise of discretion based on proper considerations.[31] The IPC cannot, however, substitute its own discretion for that of the institution.[32]

Representations

[70] The ministry submits it has exercised its discretion appropriately. It states that its practice is to protect personal information contained in law enforcement records. The ministry is concerned that the disclosure of the information will be distressing to the complainants, who implicitly supplied personal information to the OPP.

[71] The ministry’s representations also make it clear that it balanced the appellant’s right of access to his own personal information against the rights of the complainants to have their personal privacy protected. The ministry has disclosed all of the appellant’s personal information to him, except where it is inextricably linked with that of other identifiable individuals.

[72] The appellant did not provide representations on this issue.

Analysis and findings

[73] Considering the contents of the records and the entirety of the ministry’s representations, I find that the ministry’s exercised its discretion under section 49(a), read with section 14(1)(l), and section 49(b), appropriately.

[74] From its representations, it is clear that the ministry considered the law enforcement risk in the disclosure of the police operational codes against the appellant’s right to access his own information and specifically, whether disclosure of the police operational codes could jeopardize the security of law enforcement systems and the safety of the OPP staff. It also considered the contents of the records, specifically the information remaining at issue, and balanced the right of the appellant to access his own information against the right of the complainants to have their privacy protected.

[75] Therefore, I find that in exercising its discretion under sections 49(a), read with section 14(1)(l) and 49(b), the ministry took into account relevant considerations and did not take into account irrelevant considerations. I find that the ministry exercised its discretion in good faith and for a proper purpose. Accordingly, I uphold the ministry’s exercise of discretion under section 49(a), read with section 14(1)(l), and section 49(b).

ORDER:

1. I order the ministry to disclose to the appellant the responsive information that I have found is not personal information by June 4, 2025. This information is found in records 1 (severance starting with the word ‘information’), 4 (all three severances), and 11 (severance starting with the word ‘who’).
2. I uphold the ministry’s decision to deny access to the remaining information at issue in the records.
3. I reserve the right to require the ministry to provide me with a copy of the information disclosed to the appellant in accordance with order provision 1.

Original Signed by:		May 5, 2025
Diane Smith
Adjudicator