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| s.20 |
SUMMARY OF ORDERS/PRIVACY REPORT |
s.13 |
- The Court of Appeal in Ontario (Ministry of Labour) took a different approach to the test to be applied in circumstances where section 20 has been claimed. Previously the standard was a "reasonable expectation of probable harm", now however there need only be a reasonable basis for believing that a person's safety will be endangered by disclosing a record. The Court recognized that where personal safety or bodily integrity are at issue the expectation of harm need only be reasonable, as long as it is not groundless, exaggerated or frivolous:
1. The expectation of harm must be reasonable, but need not be probable.
2. It must be determined that there is a reasonable basis for concluding that disclosure could reasonably be expected to endanger the life or physical safety of a person.
3. The party resisting disclosure must demonstrate that the reason for resisting disclosure is not a frivolous or exaggerated expectation of a threat to safety." (PO-1817-R)
"Concerns about the safety and health of individuals who, either individually or on behalf of organizations they represent, speak out against proponents of hate literature are not exaggerated or groundless. Furthermore, the question of whether the information is "personal" or professional" is immaterial to the question of whether an individual could reasonably be expected to suffer harm to his or her physical safety as a result of disclosure. Section 20 only requires that "an individual" be at risk of harm." (PO-1817-R)
- The Commission confirmed that reasonable expectation of harm required that the
institution
establish a clear and direct linkage between the disclosure of the information and the harm
alleged. The Commission approved of the position taken by the Federal Court of Appeal in
Canada Packers Inc. v. Canada (Minister of Agriculture) [1989] 1 F.C. 47 at
59-60, where
the Court indicated that a "reasonable expectation of probable harm" was required. It
also
approved of the Federal Court Trial Division's decision in The Information
Commissioner of
Canada v. The Prime Minister of Canada, unreported, November 19, 1992, where the
Court
stated that the mere "possibility" of harm was not sufficient. The Court held that
descriptions
of possible harm, even in substantial detail, are insufficient in themselves. Justice Rothstein
stated that: The Court must be given an explanation of how or why the harm alleged would result
from disclosure of specific information. If it is self-evident as to how and why harm
would result from disclosure, little explanation need be given. Where inferences must
be drawn, or it is not clear, more explanation would be required. The more specific
and substantial the evidence, the stronger the case for confidentiality. The more
general the evidence, the more difficult it would be for a Court to be satisfied as to
the linkage between disclosure of particular documents and the harm alleged...While
the fact that the same or similar information is public is not necessarily conclusive of
the question of whether or not there is a reasonable expectation of harm from
disclosure of the information sought to be kept confidential, the burden of justifying
confidentiality, would...be more difficult to satisfy. (Orders #P-534, P-588, M-315, P-837)
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Sufficient evidence must be presented to support the application of this exemption. The fact
that the records referred to the transfer of an involuntary patient from one institution to
another was insufficient. (Order #P-74)
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The reasonable expectation must not be fanciful, imaginary or contrived. Disclosure of a
Minister's briefing response regarding to a murder investigation would not trigger this
exemption where no witnesses are referred to and where no factual basis has been laid to
establish safety concerns. (Orders #P-188, P-280, P-312, M-333)
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While threatening letters written by the appellant may be disclosed to the appellant, the
letters
provide evidence of a serious threat that could be used to exempt other records not written
by the appellant. (Order #P-259)
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This exemption did not apply where a parent sought access to teachers' notes of his children's
comments about the parent. The substance of the notes was discussed at a meeting that the
parent attended. It was therefore not reasonable to expect that disclosure of the notes would
result in harm to the children. (Order #M-100)
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The expense claims of an employee were accessible even though they disclosed where he
had
lunch. The fact that the employee had been threatened in the past was not sufficient to apply
this exemption to the information concerning the locales in which this individual ate business
lunches. The Commission found that there was not the degree of predictability or pattern
regarding the locales in which the employee conducted his business lunches to warrant the
application of this exemption. (Order #M-333)
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In this case, the Commission was not satisfied that there was a reasonable expectation of
probable harm where there was a significant lapse of time (December 1991 and May 1994)
between the events related to the disciplinary proceedings and the appeal. (Order #M-321)
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A listing of all police officers and civilian personnel of a police force including name, rank
and
position was found to be exempt under this provision. Because of the inherent dangers to the
physical safety of police force employees, the identification of individuals as police officers
could reasonably be expected to make their work more dangerous. (Order #M-465)
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In this case the Commission found that identification of
police officers placed family members and others at risk.
(Order # M-913)
- Requesters cannot access offensive, inflammatory and hateful comments and images
directed at
identifiable groups through the Act. The fact that the information was published previously was
not relevant . (Order #P-1538)
- Disclosure of records which contain hate propaganda directed
at employees could reasonably be expected to seriously
threaten the health or safety of the individuals who belong
to minority groups. (Order #P-1482R)
- On reconsideration of P-1538, the Commission ruled this
provision did not apply: (1)the affected person's name
appears in the records only in his/her capacity as an
employee of a public body, (2)the records do not contain
his/her personal views on the issues contained in the
requested records, (3)the affected person is referred to in
the records only in his/her capacity as a senior public
official and not in her personal capacity as a private
individual, and (4)the records do not contain his/her
personal views within the meaning of section 2(1)(e) of the
definition of personal information. Other considerations
included that the information was written seven years ago.
(Order #P-1538R)
- "In Ontario (Minister of Labour), the Court of Appeal for Ontario drew a distinction between the requirements for establishing "health or safety" harms under sections 14(1)(e) and 20, and harms under other exemptions. The court stated (at p. 6):
The expectation of harm must be reasonable, but it need not be probable. Section 14(1)(e) requires a determination of whether there is a reasonable basis for concluding that disclosure could be expected to endanger the life or physical safety of a person. In other words, the party resisting disclosure must demonstrate that the reasons for resisting disclosure is not a frivolous or exaggerated expectation of endangerment to safety. Similarly [section] 20 calls for a demonstration that disclosure could reasonably be expected to seriously threaten the safety or health of an individual, as opposed to there being a groundless or exaggerated expectation of a threat to safety. Introducing the element of probability in this assessment is not appropriate considering the interests that are at stake, particularly the very significant interest of bodily integrity. It is difficult, if not impossible, to establish as a matter of probabilities that a person's life or safety will be endangered by the release of a potentially inflammatory record. Where there is a reasonable basis for believing that a person's safety will be endangered by disclosing a record, the holder of that record properly invokes [sections] 14(1)(e) or 20 to refuse disclosure.
[D]espite this distinction, the party with the burden of proof under section 20 still must provide 'detailed and convincing evidence' of a reasonable expectation of harm to discharge its burden. This evidence must demonstrate that there is a reasonable basis for believing that endangerment will result from disclosure or, in other words, that the reasons for resisting disclosure are not frivolous or exaggerated."
(Order #s P-1262, PO-1747 and PO-1861)
- Simply exhibiting behaviour such as using injudicious language,
raising voices, and using apparently aggressive body language and gestures,
is not sufficient to engage a section 20 or 14(1)(e) claim. There must be
clear and direct evidence that the behaviour in question is tied to the
records at issue and that a reasonable expectation of harm is established
should the records be disclosed. (PO-1939)
- "[A] threat to safety as contemplated by section 20 is not
restricted to an "actual" physical attack. Where an individual's
behaviour is such that the recipient reasonably perceives it as a
"threat" to his or her safety, the requirements of this section
have been satisfied." (Order PO-1940)
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OCIPO 