ss.(1)

In a case where an affected party had sent a letter to Town Council complaining about the requester's conduct in her store, the Commission found that the appellant's right of access to the letter outweighed the affected party's right to privacy. The two main factor's weighing in favour of granting access were that the letter was to a large degree about the appellant, and that in addressing the letter to Town Council the affected party could not have held an expectation of confidentiality. (MO-1453)

• This provision did not apply to portions of records relating to the management of a deceased individual's estate which received wide media attention. However, other portions of the record that were not documented in the press were subject to the exemption. (Order #P-1113)

ss.(1)(a)

Agents for Requesters

• Where an individual purports to act as an agent under this section, the Commission must balance the right of the individual to be represented by an agent with the institution's obligation to verify the identity of an individual seeking access to his or her personal information and whether or not the agent is properly authorized to obtain such information. If proper authorization cannot be obtained, the institution may either: notify the individual whose personal information is at issue and provide him or her with an opportunity to provide representations; or may deal with the validity of the authorizations as a preliminary matter. In determining whether the institution acted reasonably in refusing to accept certain authorizations, the following factors are relevant: whether the personal information is very sensitive, whether the authorizations preclude the institution from verifying the consent and whether or not the individuals who have allegedly consented have responded to the request for verification made by the institution. Special care should be taken where personal information is being requested about the treatment of vulnerable individuals. Institutions should not assume that requests for personal information by agents are invalid; rather, they should discuss the matter with the individuals involved before determining whether or not to accept the authorizations. (Orders #P-533, M-71, P-455)

ss.(1)(a)

Consent

• Once the individual has consented to the disclosure of the personal information, this exemption does not apply. (Orders #M-8, M-52, M-84)



• In this case, the requester had asked for the names, addresses and phone numbers of all persons who applied for the Urban Forest Management Advisory Committee. The Commission held that the institution had no obligation under this section to seek the consent of the affected parties for the disclosure of their personal information because the City regarded such disclosure as an unjustified invasion of personal privacy.(Order # M-638)

• In order to determine if consent to the disclosure of the information has been given, three questions should be asked: 1. Does each individual know what information about him or her is contained in the record? 2. Is it reasonable to assume that each individual had knowledge of all of the institutions' planned uses of the record containing his or her personal information? 3. Does an individual have a choice regarding whether the personal information about him or herself is included in the record? (Order #P-180, #P-1208)

ss.(1)(a)

Implied Consent

• Where a person's name appears on printed letterhead, consent to the disclosure of the letterhead may be implied. A letterhead is by its nature used widely and publicly and the privacy protection of the Act does not attach to information that can be gleaned from the presence of a name on a letterhead. (Orders #P-138, P-202)



• Where an individual voluntarily signs a petition, his or her consent to disclosure may be implied. (Orders #P-154, P-171, P-172)



• While lottery winners are advised in writing that their identities could be published in the newspaper, and that in order to collect the prize they must agree to this, they do not implicitly consent to the disclosure of their identities to other individuals under this section. Similarly, consent may not be implied in respect of the disclosure of lists of winners to the public on request. This list is not a public record, but is a new record created from records that have been made public. (Orders #P-180, P-181, M-68)

• In this case, the Commission found that the affected party had not consented to the release to his or her insurance company of the results of his or her blood analysis, taken as part of a police investigation into a motor vehicle accident. While the insurance company suggested that, by virtue of two provisions in the Ontario Automobile Policy, the affected party had consented to the disclosure, the Commission held that the provisions did not authorize third parties to disclose relevant records. The Commission ruled that the provisions only bound the third party to produce relevant records. (Order #P-731,
P-1435 )

ss.(1)(a)

• A typical patient receiving health services would understand that the health card version code may be disclosed by the physician to the Ministry of Health for payment purposes. Thus one might be able to imply consent for the disclosure of the version code by the physician to the ministry. However, the Commission found that this does not mean that the patient has given implied consent for the Ministry to disclose the version code to a physician requesting the version code from the ministry. (Order #P-867)



• Where the signatures on a petition were solicited for the specific purpose of forwarding the petition to the local MPP and a Minister, and where there was no evidence to show that petitioners consented to any other disclosure of their names and addresses, consent for disclosure was not implied. (Order #P-1085)



• S. 21(1)(a) requires that consent be provided under the Act, that is, the consenting party must provide a written consent to the disclosure of his or her personal information in the context of an access request. (Order #PO-1723)

ss.(1)(b)

• The Commission ruled that this section does not apply in a situation in which the requester and his family suffered ill health after receiving harassing phone calls. (Order #M-525)

ss.(1)(c) (See as well, cases under s.37 [FIPPA] \ s.27 [MFIPPA].)

Not "Public Records"

• In order to satisfy this exception, it must be shown that the personal information was collected and maintained "specifically" for the purpose of making it available to the general public. In this case, the names and addresses of landowners who owned designated Areas of Natural and Scientific Interest were available to the public, but there was no evidence to show that it was maintained specifically for this purpose. As a result, the exception to the exemption did not apply. (Orders #P-559, P-755, M-638, P-1232). Furthermore, the routine release process for publicly maintained records may affect how the exception applies. Where an institution did not provide access to records under this exception unless specific identifiers were provided, the exception did not apply to a request for bulk access to the records.(Order #P-1144)



• Even though records are submitted pursuant to a statute that indicates that they will be made publicly available, the records may not be "maintained" for the purpose of creating a public record. Where records containing errors were never made available to the public, this provision does not apply. (Orders #P-318, P-319)



• Personal information may be public in one sense and still not be publicly available as contemplated by this section. For example, the names and addresses of lottery winners are made public in newspaper accounts when the winners are announced. Winners agree that this be done. This does not mean that the record is a "public" record for all times and in all contexts. Similarly, a criminal record may be disclosed in a public trial but this does not mean that it is a "public" document as envisaged by this provision. In each of these instances, access to the personal information must be made in consideration of the factors in ss.(2) and (3) of this exemption. (Orders #P-180, P-181, M-68)



• Witnesses who provide statements to the police do not give up their privacy rights simply because there may be a trial in the future and they may testify in open court. The fact that personal information may be disclosed in a public trial does not mean that the individual who will be involved in the trial waives his or her privacy rights. This is particularly so where the public proceeding has not yet commenced. (Order #P-392)

ss.(1)(c)

• The badge numbers of police officers are not covered by this exception to this exemption. Even though the badge numbers are public in one context, they are not maintained as a public record in all contexts. Therefore, where police officers during training sessions note their identity by badge number, they are not doing so to create a public record. In this context they are acting as students and not in their official capacity as police officers. (Order #M-116)



• The Commission considered that the names of inmates who were detained in a detention facility prior to trial were personal information that was not publicly available. (Order #P-657)



• The fact that something ought to be public was not sufficient; it was necessary for the requester to provide evidence that the record was public in order for this provision to apply. (Order #M-290)



• Vehicle licence registration numbers of individuals who received parking tickets while parked at a specific location was not a public record. Parking tags are issued for law enforcement purposes and not for the purpose of creating a record available to the general public. (Order #M-336)



• Despite the fact that apprentice electricians are required to be registered under the Trades Qualification Act, the names and other identifying information about these individuals is not maintained specifically for the purpose of creating a record available to the general public. (Order #P-755)



• A petition signed by members of an interest group with the intention that it be forwarded to an MPP and a Minister was not collected or maintained by the ministry specifically for the purpose of creating a public record. (Order #P-1085)



• Information regarding the status of a particular estate, maintained by the Office of the Public Guardian and Trustee for the purpose of administering its responsibilities as an estate trustee is not "collected and maintained specifically for the purpose of creating a record available to the general public" as required by section 21(1)(c) of the Act. (Order #PO-1717)

ss.(1)(c)

• Neither a marriage certificate nor a registration of marriage falls under this provision.(Order #P-1407



• Although the type of information at issue could be found by searching in the Land Registry Office, the address or legal description of the property must be known in advance. Similar information can not be obtained from a municipality for all properties.(Order #M-981)



• These provisions did not apply to records that were obtained by the Ministry from College of Physicians and Surgeons of Ontario (college). In this case, the College not MOH, had statutory obligation, under the Regulated Health Professions Act (RHPA) and the Medicine Act, to collect, maintain and make available to the public personal information of its members. Copies of these records in the Ministry's custody were exempt from disclosure because the Ministry uses this information to administer the Health Insurance Act and not for purposes of creating a record available to the public under the RHPA and Medicine Act. (Order #P-1635)



• The Commission found personal information changes its "character when it is disclosed in bulk rather than on a one-off basis". Accordingly, "planned use of personal information on an individual record basis cannot be extended to a fundamentally different use when dealt with in bulk". (Order #P-1635)

ss.(1)(c)

"Public Records"

• Land registry information that is available to the public upon request at land registry offices is a public record. In this case, the information was provided to the institution by an individual who obtained it by doing a title search at the land registry office. The Commission found that the disclosure would not be an unjustified invasion of privacy. (Order #P-480)



• Although a municipal by-law requires that certain personal information concerning the driver and owner of licensed taxis must be displayed in taxis for the benefit of passengers, the public display of the personal information does not necessarily trigger this exemption. In this case, the Commission felt that the personal information about individual taxi licence holders maintained by the Licensing Commission was not collected and maintained specifically for the purpose of creating a record available to the public. Rather, the Commission felt that it was collected for the purpose of assisting the Licensing Commission in the regulation and licensing of the taxi industry and was thus not exempt under this section. (Order #M-448).



• This provision does not apply to a list of properties on which tax arrears were owing although tax arrears on single properties are publicly available as certificates of taxation.(Order #M-800)



• An Application for a Work Permit is a multi-part form designed to obtain specific information about the applicant, the proposed site on which work is to be done and the type of work proposed to be done. A statement on the form which cautions the applicant that the information contained on the form is a public record which is accessible upon request has the effect of making the record a public record within the definition of s.37. The same cannot be said for correspondence between the applicant and the institution which is attached to the application form. (Order #P-1111)



• Tax arrears information is a "public record" (Order #M-898)

ss.(1)(d)

• This provision applied for disclosure of his children's information to an access parent under section 16(5) of the Divorce Act. The section lists certain classes of personal information related to "health, education and welfare" about the child. (M-787, P-1246). Section 20(5) of the Children's Law Reform Act is identical to that of 16(5) of the Divorce Act, and is sufficiently specific to bring it under this provision. (P-1423, P-1617, MO-1480)

 

• The phrase "expressly authorized by statute" requires that specific types of personal information collected be expressly described in the statute, or a general reference to the activity be set out in the statute, together with a specific reference to the personal information to be collected in a regulation made under the statute, i.e., in a form or in the text of the regulation. Section 45 and 65 of the Labour Relations Act, which state that "no employer shall participate in or interfere with the formulation, selection or administration of a trade union or the representation of employees by a trade union" is not authorization to disclose personal information to a trade union. (Orders #M-292, P-1232, P-1635, PO-1923) This provision authorizes disclosure of personal information where a statute or regulation requires it. Where the power to disclose personal information is discretionary rather than mandatory, this provision does not apply. In the case of law enforcement records, the police exercise discretion in each case to disclose personal information only where they deem it appropriate in the circumstances. (Orders #MO-1179, MO-1264, PO-1923)
  
• The phrase "expressly authorized by statute" requires that specific types of personal information collected be expressly described in the statute, or a general reference to the activity be set out in the statute, together with a specific reference to the personal information to be collected in a regulation made under the statute, i.e., in a form or in the text of the regulation. Section 45 and 65 of the Labour Relations Act, which state that "no employer shall participate in or interfere with the formulation, selection or administration of a trade union or the representation of employees by a trade union" is not authorization to disclose personal information to a trade union. (Order #M-292, P-1232)



• In this case, the requester sought access to his personal information contained in the Crown brief prepared in respect of his prosecution for assault. The requester stated that since he was entitled to pre-trial disclosure of the information, he was entitled to the information under this provision. The Commission disagreed and held that this provision did not apply. (Order #M-317)



• This provision applied for disclosure of his children's information to an access parent under section 16(5) of the Divorce Act. The section lists certain classes of personal information related to "health, education and welfare" about the child. (Order #M-787, P-1246). Section 20(5) of the Children's Law Reform Act is identical to that of 16(5) of the Divorce Act, and is sufficiently specific to bring it under this provision. (Orders #P-1423, P-1617)



• This provision cannot apply when a court has suspended an "access parent's" right to visit or be visited by his children. The suspension means that the appellant is no longer an access parent within the meaning of s.20(5) of the Children's Law Reform Act with the rights of access to information about the children.(Order #P-1189)



• This provision authorizes disclosure of personal information where a statute or regulation requires it. Where the power to disclose personal information is discretionary rather than mandatory, this provision does not apply. In the case of law enforcement records, the police exercise discretion in each case to disclose personal information only where they deem it appropriate in the circumstances. (Order #MO-1179)

ss.(1)(d)

• The Commission used the Divorce Act's definition for the term "child of the marriage" for the purposes of this section.(Order #P-1407)



• The Compensation for Victims of Crimes Act does not authorize the disclosure of information. (Order #P-1528)



• The Commission ruled that the provision "expressly authorized by statute" applied to information relating to individual contributions over $100 to municipal politicians and ordered release of the information. Section 88(5) of the Municipal Elections Act provides that documents and materials filed with the clerk or any other election official are public records which may be inspected by any person. The Regulations prescribe that information relating to individual contributions over $100 be listed including the names, addresses and contribution amounts. The Commission ruled, however, where the contribution is $100 or less,disclosure of the fact that individuals have made financial contributions, together with the amount of those contributions, is presumed to be an unjustified invasion of privacy because it describes those individuals' financial history or activities. (Order M-1154)

ss.(1)(e)

• "Research" means a systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions and an endeavour to discover new or to collate old facts by the scientific study or by a course of critical investigation. (Orders #P-666, M-336)



• In order for a requester to meet the requirements of this provision, he or she must provide evidence that the conditions in the clauses in (1)(e)(i), (ii) and (iii) have been satisfied. (Order #M-292)



• This is the only provision of the Act where the granting of conditional access is explicitly contemplated. (Order #P-164, M-704)



• The requester's business activities (locating and proving claims of next of kin who may be entitled to a deceased person's estate) did not constitute a research purpose as defined in Order P-666 . (Order #P-1493)

ss.(1)(f)

General

• This provision is an exception to the mandatory exemption, which prohibits disclosure of personal information. The party seeking to apply this exception bears the burden of establishing that the exception applies. In the absence of any evidence that the disclosure of the personal information would not constitute an unjustified invasion of personal information, the mandatory exemption applies and the personal information will not be disclosed. (Orders #M-97, P-538, P-539, P-551, P-563, P-564, P-432, P-441, M-113, M-114, M-115, P-436, M-104, M-109, M-197, M-240, P-567, P-576, P-594, P-620, P-622, P-764, M-394)



• The appellant sought access to the name of an individual who made a complaint against him and claimed his rights under section 7 of the Canadian Charter of Rights and Freedoms (the Charter) were violated by non-disclosure of the complainant's name: The appellant argued that he had a right to adequate disclosure of information about himself in the government's possession to enable him to refute accusations that he violated the Ontario Water Resources Act (OWRA). But since there were no proceedings initiated against the appellant under the OWRA that would trigger disclosure obligations the appellant had no right to disclosure on this basis. Charter rights of an accused outweigh informant privilege only where the identity of the informer is necessary to demonstrate the innocence of the accused so the appellant rights did not outweigh the complainant's informant privilege. The Charter rights of the appellant were not infringed by non-disclosure of the complainant's name. (Order #PO-1706)

Not An Unjustified Invasion of Privacy

• In this case, the Commission ruled that there were exceptions to the personal information exemption. Where nothing in ss.(2) or (3) applies, the information is not an unjustified invasion and must be released. (Order #P-292)



• Requests for access to the names of individuals who have made requests under the Act must be determined on a case-by-case basis. Since there are no presumptions in ss.(3) that would apply, the factors in ss.(2) must be considered. In this particular case, the disclosure of the name was not an unjustified invasion of privacy. (Order #M-32, and see also Orders #P-27, P-78, P-216, P-370)

ss.(1)(f)

• The disclosure of summaries of will-say statements that may have been used at a hearing held under the Public Service Act, regarding the requester, would not be an unjustified invasion of the potential witnesses' personal privacy. (Order #P-312)



• Where the opinions of individuals have been publicly debated, disclosure of the opinions does not constitute an unjustified invasion of personal privacy. (Orders #P-66, P-323)



• It was not an unjustified invasion of privacy in this case to disclose the names of volunteers who provide information to an institution as part or their responsibility as volunteers. (Order #M-8)



• The names and addresses of the Board of Trustees of a home for senior citizens are filed with the Ministry of Consumer and Commercial Relations under the Corporations Information Act. As such, disclosure of this personal information would not constitute an unjustified invasion of privacy. (Order #P-528)



• While the personal information remains personal for 30 years, the Commission found that the privacy interests diminished because the deceased had been dead for 23 years and the information related to events, albeit criminal charges, that occurred between 1957 and 1969. Moreover, the Commission noted that under the federal Privacy Act information is no longer considered to be personal if the person has been deceased for 20 years as opposed to the 30 year period under this Act. Had the criminal record of the deceased, not been destroyed it would have been available under the federal legislation. Consequently, the criminal record and other information not subject to the presumed invasion provision in ss.(3)(b) was disclosed to the personal representative of the deceased. (Order #M-426, see also Order #M-97)

ss.(1)(f)

• A letter of resignation submitted by a named Parent-Teacher Association President at a particular school was disclosed under this provision. The letter, addressed to all the parents of the school, contained the personal information of both the author and the individuals named in the letter. It had been read at a public gathering at the school and the individuals referred to in the letter were advised that it was to be sent to the students' homes. (Order #M-425)



• Disclosure of the names of the duty officer and dispatchers of a Police Service where a complaint was made was not an unjustified invasion of privacy. The public ought to be able to know the identities of individuals contacted in a public body. (Order #M-510)



• Disclosure of the names of estates alone would not constitute an unjustified invasion of privacy of the deceased.(Order #P-71, #P-1187)

ss.(1)(f)

Unjustified Invasion of Privacy

• Disclosure of the names and addresses of individuals who have enrolled in an apprenticeship program be an unjustified invasion of privacy. According to the contract entered into by the apprentices, the personal information was not collected to make it available as a mailing list to marketing firms. This was also true of birth information which, as a matter of practice, had always been provided in confidence. (Orders #P-307, P-309)



• In this case, disclosure of the personal information of persons involved in setting up a Women's Health Clinic was held to be an unjustified invasion of personal privacy. (Order #P-149. See also Order #P-151)

• The disclosure of names included in a briefing note to a Minister, in respect of a murder investigation in a correctional facility, constitutes an unjustified invasion of the personal privacy of the individuals referred to in the briefing note. (Order #P-188)



• Disclosure of the names of individuals who have been issued hunting licences would be an unjustified invasion of their privacy. (Order #P-213)



• Disclosure of the education and employment histories of consultants who were bidding on contracts would unjustifiably invade their privacy. (Order #P-222)



• Disclosure of the name of a deceased individual would constitute an unjustified invasion of privacy where no argument weighing in favour of disclosure was provided on appeal. (Order #M-97)

ss.(1)(f)

• The natural father in this case did not obtain access to his child's student records. By virtue of the divorce decree he did not have custody of his child, and despite the fact that the decree absolute granted him the right to obtain education-related information about his child, the disclosure in these circumstances was held to be an unjustified invasion of the privacy of the child, her mother and her mother's spouse. (Order #M-104)



• The disclosure of the names, addresses and in some instances, the telephone numbers of individuals who responded to a market survey regarding their interest in buying real estate was not disclosed as a result of this provision. The Commission noted that disclosure was not necessary to submit the institution to public scrutiny and that there were no other factors in ss.2 that would favour disclosure of these records. (Order #M-235)



• The names of individuals who responded to a poll were not disclosed under this provision. (Order #M-340)



• Disclosure of the social insurance number of individuals was held to be an unjustified invasion of the privacy of those individuals. (Order #P-762)



• Disclosure of the number of overtime hours worked by a police officer on a particular program was not disclosed under this provision. While the Commission found that no factors in ss.(2) or (3) militated against disclosure, the Commission held that the exemption is mandatory and in the absence of considerations that would support release, the records were not to be disclosed. (Order #M-438)

ss.(1)(f)

• In this case, the Commission found that to disclose the names, home addresses and home phone numbers of volunteers who offered their services to charities for the purpose of Nevada lotteries would be an unjustified invasion of personal privacy. (Order #M-663)



• Disclosure of a list of all Ontario drivers and their licence numbers would provide the requester with the means to access significant amounts of personal information with no controls over its use. It is in this way that disclosure of individual records differs from bulk disclosure. (Order #P-1144)



• Disclosure of dates of death would be an unjustified invasion of privacy.(Order #P-1187)

S.21(f&h)

• Privacy interests were heightened for witness statements provided during an investigation into a fire where no criminal charges were laid. The greatly diminished likelihood of being called as a witness increased the significance of any subsequent disclosure. (PO-1983)

ss.(2)

General

• Once a presumption has been established under s.21(3) [FIPPA] \ s.14(3) [MFIPPA], it may only be rebutted by the criteria set out in s.21(4) [FIPPA] \ s.14(4) [MFIPPA] or by the "compelling public interest" override in s.23 [FIPPA] \ s.16 [MFIPPA]. (Re John Doe et al., and Information and Privacy Commissioner et al.(1993), 13 O.R. (3d) 767 (Div. Ct), Orders #M-170, P-528, P-538, M-202, P-541, M-544, M-651, M-713, P-1045, P-1092)

• The potential benefit to unknown heirs was an unlisted factor that contributed to the IPC's decision to order disclosed the names of persons without known heirs who had died leaving a significant estate. (Order #PO-2012-R)




• This list of factors is not exhaustive. The word "including" requires the head to consider circumstances that do not fall under the listed criteria. For example, ensuring or restoring of public confidence in an institution may be a factor in some cases. In addition, the recessionary times may warrant the large expenditures of funds be subject to greater public scrutiny. (Orders #P-99, P-312, M-129, M-173, M-278)



• In this case, the Commission ruled that where a factor in ss.(2) was relevant to non-disclosure of personal information, the institution must establish a sufficient connection between the release of the records and the possible harm to the affected parties. (Order #P-634)



• The authority for disclosure of personal information under s. 42 [FIPPA] \ s.32 [MFIPPA] is not relevant for an access request. (Orders #M-96, P-810)



• The Commissioner held that merely by making the Criminal Injuries Compensation Board (CICB)CICB proceedings relevant to a lawsuit, the family has not waived any claim to privacy under this legislation. Nor should the family have a diminished expectation of privacy as a result of their application to the court.(Order #P-919, P-1136)

ss.(2)

Factors Not Relevant to Disclosure

• Disclosure under this part of the Act is, in effect, disclosure to the world and not just to the requester. Therefore, where the requester, a union, wanted access to the home phone numbers of members of the union, it was held that the disclosure would constitute an unjustified invasion of the union members' privacy. (Orders #M-96, M-206)



• Where a requester asserts that he or she needs the records because a complaint to the Human Rights Commission may be made, this assertion alone is not a compelling ground for disclosure. (Order #P-97)



• Release of a name, address and telephone number of an applicant's agent or contact person may not necessarily constitute an unjustified invasion of personal privacy. (Order #P-53)



• Administrative ease is not a rationale for overriding the privacy provisions. As a result, administrative ease is not a relevant factor in determining whether the disclosure of personal information at issue would constitute an unjustified invasion of personal privacy. (Order #M-118)



• Factors Not Relevant to Disclosure An institution cannot waive the privacy rights of individuals under the Act by signing an agreement with the child's parent to "share" information about the child's placement in a residential facility. The information sharing agreement was therefore not a relevant factor in deciding whether to disclose the personal information about the child or anyone else to a parent who requested the information under the Act. (Order #P-1157)

ss.(2)

Factors Relevant to Disclosure

• Where an individual had been deceased for 21 years, his privacy interest was reduced significantly but not eliminated. (Order # PO-1923) Possible benefit to unknown heirs is a factor favouring disclosure, the weight of which varies according to the extent to which a particular item of personal information assists in the identification of potential heirs. (Order # PO-1493 PO-1717 PO-1736 PO-1923 PO-2011)



• This section requires the head to consider all relevant circumstances, including matters that are not listed. One such unlisted factor is that the information relates to an individual who is deceased. On death, the privacy interest in the personal information of the deceased diminishes. However, this may not be so depending on the circumstances of the death. In certain cases the personal information of the deceased was disclosed. This was so even though the requester was not the personal representative of the deceased under s.54(a) [MFIPPA] \ s.66(a) [FIPPA]. As a result where s.54(a) [MFIPPA] / s.66(a) [FIPPA] is not satisfied, the factors in ss.(2) may be considered. Despite this, in Order #M-206 the deceased representative did not obtain the records because the circumstances of the death were related to an allegation of criminal wrongdoing and the Commission ruled that disclosure would be an unjustified invasion of privacy in the circumstances. (Orders #M-50, M-51, M-153, M-206)



• The disclosure of personal opinions that have been publicly debated does not constitute an invasion of personal privacy. (Order #P-66)



• Subsection (2) contains no factors that would lead to the non-disclosure of names on a petition. (Order #P-171)



• In this case, the public nature of a petition signed by petitioners requesting a public inquiry to investigate the affairs of a Township was an unstated factor weighing in favour of disclosure of the names and addresses of the petitioners. (Orders #P-171, P-516)



• Findings: "[T]he Commissioner's statutory duty of confidentiality is not absolute, but must be balanced with its common law duty of fairness, in particular, the duty to notify a party of the case it must meet. As a party to these proceedings, the appellant is entitled to know, within reasonable bounds, the case that he has to meet." These are unlisted factors which can weigh in favour of disclosure of personal information.   (Order #  PO-1956-I)

ss.(2)

• An unstated but relevant factor under this provision is that the disclosure of personal information could be desirable for ensuring public confidence in the integrity of the institution. In this case, this factor resulted in the disclosure of substantial parts of an employee severance package. The Commission considered the following matter in arriving at this conclusion: The severance package involved a large amount of public funds, agreements involved senior civic employees with a high public profile and the need for prudent expenditure of public funds. (Order #M-173)



• The fact that the deceased had been dead for 11 years was a factor weighing in favour of disclosure of information to his daughter related to his prior conviction and incarceration. The Commission ruled that the father's right to privacy diminished with his death and with the passage of time. However, the Commission also noted that the nature of the offence could not be disclosed. It also ruled that the fact that the requester is the daughter of the deceased was not relevant to disclosure because disclosure under this Part of the Act is the equivalent of disclosure to the world (as was decided in (Order #M-96). Moreover, the options for disclosure under s.42 [FIPPA] \ s.32 [MFIPPA] are not relevant to disclosure under this Part of the Act. (Order #P-679)



• This factor weighed in favour of disclosure of personal information relating to an investigation into the disappearance and death of a Crown ward in order to ensure public confidence in the integrity of an institution. One of the purposes of the investigation was to determine whether the Ministry of Community and Social Services' policies and procedures regarding such incidents needed to be amended. (Order #P-991)



• The fact that the original Information and Summons regarding a violation of the Fire Marshals Act is a public record on file at a court office is an unlisted factor in favour of disclosure of copies of the Information and Summons held by a municipality. (Order #M-734). In this case an unstated factor weighing in favour of disclosure is that the personal information in a court order, is part of a public record on file at the court office. (Order #M-1031)



• In response to the appellant's submission that in the investigation and prosecution of a sexual assault, the accused is provided with access to statements she made to the police, while she is "unfairly" denied "complete access to any information", the Commission commented that the "appellant is confusing access under the Act to disclosure in the criminal context... . [T]he rights the accused is entitled to under due process of law are not relevant to an access request for personal information under the Act. However, the appellant's request is relevant to her concern about the manner in which the Police investigated her complaint. "[T]he disclosure of the personal information in the records is relevant to the appellant's ability to understand and monitor the manner in which the Police investigated her complaint. (Order #MO-1224)

ss.(2)(a)

General

• Councilors are paid from public funds to attend meetings and events in their role as elected public officials. Disclosure of the annual Statement of Payments and the individual billing records is desirable for the purpose of subjecting the activities of the local government to public scrutiny. (M-1076, P-828, PO-1978)



• A demonstration of personal interest by a judge after the conclusion of a case does not constitute any evidence of public concern or public interest in the subject matter of the judge's private interest. This factor cannot be used to rebut a presumption in ss.(3). Only the compelling public interest override can rebut a presumption that arises as a result of an investigation into a possible violation of law (ss.(3)(b)). (Re John Doe et al. and Information and Privacy Commissioner et al. (1993), 13 O.R. (3d) 767 (Div. Ct.))



• In some instances, the extent of disclosure that has already been made by the institution is sufficient to subject the activities of the institution to public scrutiny. (Orders #P-273, P-282, P-328, P-1415)



• There must be a public demand for scrutiny of the institution, not one person's personal view or opinion is necessary. The requester must demonstrate that the activities of the institution to which the record relates have been publicly called into question. (Orders #P-347, M-35, M-84, M-173, M-206, P-643, M-278, M-290)



• In this case, the allegation of conflict of interest in the awarding of a tender by an institution was not sufficient to apply this factor. While the first part of the test had been met in that a press conference was called, the requester did not persuade the Commission that the disclosure was necessary to submit the institution to public scrutiny. Access to the actual proposal was provided and it was determined that it was unnecessary to provide the personal information of the individuals listed as references. (Order #M-290)

• The Commission found that the extensive media coverage, public debate in the legislature and interest expressed by the public regarding the activities of the Chair of the LCBO was a determining factor in finding that disclosure of his expenses claims, and the names of those he entertained or met with at the taxpayer's expense, was desirable for ensuring public confidence in the integrity of the LCBO. This weighed heavily in favour of of disclosure. (PO-1798)

ss.(2)(a) General

• Remarks that were critical of the manner in which a ministry spokesperson dealt with a highly sensitive public announcement (about the approval process for a golf course and subdivision) were found to be sensitive personal information that if disclosed could be reasonably expected to unfairly damage the reputation of the spokesperson. The Commission, however, determined that release of this information was desirable for the purpose of subjecting the activities of the government to public scrutiny and that the public's right of access to government held information outweighed privacy considerations. The following are factors that weighed in favour of disclosure:

1. The appellant, and others who followed the story knew that others involved in the issue may not have shared the spokesperson's point of view on this issue.
2. Although the comments were personal they related directly and narrowly to the professional role of the spokesperson and not to more generalized assessments of her character or integrity.
3. No evidence was presented to establish sufficient connection between disclosure of the personal information of the spokesperson and the possible harms she might suffer.
4. The planning and approval process for the golf course had been called into question publically and the disclosure of the withheld notebook entries was desirable for the purpose of subjecting the activities of the Ministry to public scrutiny. None of the previously disclosed information related to the information being withheld. (PO-1984)

• This factor did not result in disclosure of the names and addresses of individuals who signed an attendance sheet at a public meeting held to discuss a development proposal in a particular locale. While the meeting was public, this did not mean that the names, addresses and phone numbers of attenders should be disclosed in the form of a list. However, the comments made by the attenders may be disclosed since without the names they did not disclose the identity of the individuals who made them. (Order #M-350)



• Since the Act makes explicit provision for protection of the privacy of deceased individuals, the unlisted factor identified in order M-50 should only apply in exceptional circumstances. (Order #P-945, M-50)



• Disclosure of the annual Statement of Payments of elected officials and their individual billing records for meetings and events paid from public funds falls under this provision. (Order #M-1076)



• Two elements must be met for this provision to be a relevant factor: (1) the activities of the institution must have been publicly called into question; and (2) the disclosure of personal information of the affected persons is desirable in order to subject the activities of the institution to public scrutiny. (Order #M-1074)



• Councillors are paid from public funds to attend meetings and events in their role as elected public officials. Disclosure of the annual Statement of Payments and the individual billing records is desirable for the purpose of subjecting the activities of the local government to public scrutiny. (Order #M-1076)

ss.(2)(a)

Relevant to Disclosure

• This factor is relevant to the release of a report prepared after an investigation into the alleged misuse of public funds regarding the submission of expense claims. Government employees who submit expense claims for reimbursement should expect that they may have to justify them within the institution as well as to the public. (Orders #P-256, P-433, P-721)



• This factor was relevant to disclosure of an investigation report regarding allegations of financial improprieties in respect of expense claims. The records, in this case, were created during a recessionary environment which has placed an unparalleled obligation on government agencies to ensure that tax dollars are spent wisely. These sort of investigations are inherently subject to a high degree of public scrutiny. The Commission ruled that in these instances the threshold to establish that the 'activities of a ministry have been publicly called into question' should be modest in nature. The threshold will be satisfied where there is some evidence that a public interest has been expressed about the circumstances which led to the creation of the record. This factor was pivotal even if other factors which would normally weigh against disclosure existed. However, the Commission ruled that the names of the individuals involved ought not to be included even where this information may be ascertainable by certain knowledgeable individuals. (Orders #P-634, M-278, P-663, M-290, P-721, P-735)



• Disclosure of information regarding which councillors participated in the voluntary unpaid leave program is desirable for the purpose of submitting the activities of the institution to public scrutiny. Persons holding an elected position such as regional councillor reflect directly on the Region. These elected officials must have a reduced expectation of privacy. This is exemplified by the fact that the municipal treasurer is required by law (s.247(1) of the Municipal Act) to submit an annual report to council which contains specific information regarding an individual councillor's remuneration and expenses. To ensure public confidence in the integrity of the institution and to facilitate and foster public accountability, the records that reveal which councillors agreed to participate in the voluntary unpaid leave program was disclosed. Information regarding which pay period the councillor wanted the deduction to be taken from his or her pay was not disclosed to protect the privacy of the councillor. (Orders #M-129, M-173)



• This factor was relevant to the disclosure of the dollar amounts of retirement agreements entered into by high-ranking government employees. The Commission ruled that the presumed invasion factor in ss.(3)(f) did not apply. In this case, the retirements were the subject of considerable public interest and was reported on by the press. The negotiation of the agreements was a matter of serious public debate. The Commission found that the contents of the retirement agreements warranted a high degree of public scrutiny and that disclosure was necessary to enhance public confidence in the integrity of the institution. This was particularly true because large amounts of public funds were involved. The Commission noted that this was particularly true to ensure that tax dollars are spent wisely in the current recessionary climate. While disclosure was ordered, the names of the individuals were not disclosed because the disclosure of the names was not necessary to achieve public scrutiny. (Orders #M-173, M-204 and see Order #M-196 where the Commission, by postscript, urged institutions to make the dollar amounts in severance packages publicly available, with the names of the individuals severed.)

ss.(2)(a)

• The monetary entitlements of a senior employee of an institution on termination were held to be accessible in consideration of this provision. The departure of this senior municipal officer was the cause of considerable interest which extended beyond the community he served. The contents of agreements entered into between institutions and senior municipal employees represent the sort of records for which a high degree of public scrutiny is warranted. Therefore, certain records relating to the employment and release agreements between a village and its former Chief Administrative Officer (CAO) were released. This was so even though the name of the former CAO had been released by the institution. (Order #M-419)



• In this case this factor militated in favour of disclosure of an audit report dealing with the management of a publicly funded residence for youth. The current recessionary environment requires that monies be well spent and this responsibility occurs whether the funding is internal to an institution or is given for service to a third party. However, this adequate level of public scrutiny may be achieved without disclosing the names or other identifying information of the individual mentioned in the records. Thus, the disclosure of identifying information was held to be an unjustified invasion of privacy. (Order #P-721)

• The Commission found that this factor militated in favour of the disclosure of an out of court termination settlement between an institution and its former employee. The Commission found that dollar amounts and level of employee were not determinative of the issue. It was noted that the public's concerns over the prudent use of public funds is based on the use to which and the manner in which an institution applies monies, such as tax dollars, received from the public. The Commission held that this should be a relevant consideration in each case. However the Commission found that an adequate level of public scrutiny may be achieved without disclosing the name or identifying information of the former employee. This was so even though knowledgeable individuals may know the identity of the individual. (Order #M-441)



• This factor applied to personal information about a Crown Ward and another individual relating to the Crown ward's disappearance and subsequent attempts to locate him. The Commissioner noted that the disappearance and death of the ward generated a great deal of publicity and press coverage. (Order #P-991)



• This factor was relevant to disclosure of the views and opinions of staff about an individual who was a public figure, contracted to carry out a training program. The cancellation of the contract, as well as reports of complaints regarding the training sessions, were widely publicized in the media. Disclosure of the personal information pertaining to the individual was desirable for the purpose of subjecting the activities of the institution to public scrutiny. (Order #P-1124)

ss.(2)(a)

Not Relevant to Disclosure

• Disclosure of signatures of residents of a mental health facility is not necessary to submit an institution to public scrutiny. (Order #P-387)



• This provision is not relevant regarding the disclosure of the names of police officers, who had written a research paper as students at a police college concerning the citizen complaint system. The views and opinions were expressed by these officers as students during an academic exercise and need not be disclosed to submit the police to public scrutiny. (Order #M-116)

• This provision is not relevant to the determination of whether records about an alleged assault on a student in a school ought to be disclosed. In this case, the newspaper articles about the event concerned the safety of students in the school. The concerns were not about employees or representatives of the school board and did not indicate that the public had questioned the board's activities in relation to the incident. Concerns about the prevention of future assaults were not sufficient in this case to apply this provision. (Order #M-143)

ss.(2)(a)

• This provision did not apply in respect of a custodial parent's access to his son's records, created as a result of a custody and child protection dispute. The judge during the proceeding made public statements critical of the children's aid society's conduct. The Commission ruled that: the parent had received a significant amount of the information through the litigation process, that the judge's comments were publicly available, that the Ontario Ombudsman's office was investigating the matter and that the information fundamentally is sensitive personal information about a child. In these circumstances, this provision was held to not apply. (Order #P-673)



• Disclosure of the number of hours worked by a police officer was not necessary to submit the institution to public scrutiny. The Commission considered that only very modest sums were expended for overtime work over the five year span of the request. (Order #M-438)

• This provision deals with subjecting government activities to public scrutiny not the views of a private individual. (Order #P-1134)



• This provision is not relevant regarding the disclosure of the names and position titles of individuals who have opted for a Voluntary Exit Program. (Order #M-1074)

ss.(2)(b)

• This provision was relevant to the disclosure of records that document the circumstances surrounding the inadvertent release of an inmate from a jail. (Order #P-289)



• The Commission was not satisfied that this factor applied to the disclosure of records regarding an alleged assault that took place at a school. The public was already aware of the incident through newspaper articles and further disclosure of the individuals involved would not assist in promoting health and safety. (Order #M-143)



• This provision was not relevant to the decision not to disclose the list of names and addresses of owners of land designated by a ministry as Areas of Natural and Scientific Interest. The Commission did not find that the disclosure of this information would be reasonably connected to the purchase of land in these areas. (Order #P-559)



• The fact that the records containing personal information consist of a safety survey of a ministry's Air Fleet does not automatically mean that this provision applies. Here the information pertained to employees' perceptions of certain individuals rather than to safety issues.(Order #P-964)

ss.(2)(c)

• This provision is not intended to create an exception to the mandatory personal information exemption for the purpose of making mailing lists available to the public for marketing purposes. (Orders #P-307, P-309)

• This section does not apply to the disclosure of personal information to enable someone to determine the type of legal representation that he or she requires. (Order #M-84)



• The fact that a physician gave oral testimony in court does not mean that the notes he my have taken and relied upon have been collected and maintained specifically for the purpose of creating a public record. (Order #P-1640)

ss.(2)(d)

General

• In order for this section to be relevant, the following factors must be established: 1. the right in question is a legal right, which is based in common law or statute; 2. the right is related to a proceeding which is either existing or contemplated; 3. the personal information which the appellant is seeking access to has some bearing on or is significant to the determination of the right in question; and 4. the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing. (Orders #P-268, P-304, P-312, P-322, P-328, P-341, P-355, P-358, P-362, P-375, P-387, P-377, P-392, P-401, M-28, M-38, M-42, M-55, M-82, M-84, P-412, P-434, P-443, M-119, M-120, M-122, M-125, P-447, P-450, P-469, P-470, P-480, P-485, P-510, P-515, P-541, P-550, M-212, M-230, M-222, P-606, P-611, M-256, M-257, P-621, P-634, P-642, P-643, P-663, P-665, P-657, P-651, P-654, P-658, P-673, P-685, M-327, P-712, M-396, P-945, P-937, P-926, P-924, M-655)



• In this case, while the Commission believed that certain parts of the test in this exemption could be made out (see above), it noted that the requester had not met the necessary threshold of proof regarding parts 3 and 4 of the test. The requester did not show why he needed the personal information of his estranged wife and child, who were residing in a women's shelter, to ensure that he gets a fair trial in an upcoming custody hearing. The requester had failed to show a direct link between the information and the fair determination of his rights. (Order #P-642)



• Where disclosure procedures exist outside of this Act, disclosure under this Act is not necessary for a fair determination of rights. (Order #P-139)

• Although release of a person's name and address may be relevant to a fair determination of another's rights, disclosure must be balanced against the protection of the privacy rights of individuals. (Orders #P-12, P-224). The Commission found that the name should be released but not the address because the name was necessary for the appellant to realize her legal right to bring civil action against those involved in her injuries. Similar considerations regarding the requested address were not made and so it was not released.(Order #M-746)

ss.(2)(d)

• The application of this provision may require a finding that the disclosure of the records is sufficiently relevant to a fair determination of rights as to outweigh the privacy interest of the other affected individuals. (Order #P-274)

• The victim of an alleged offence does not have an absolute right under the Act to view all material related to the allegation. The victim's rights must be balanced against the named individual's right to the protection of his or her privacy. (Order #P-392)



• The test for the application of this provision is not met by an assertion that legal action is necessary to redress loss of financial and professional reputation. (Order #P-375)



• The Commission's decision to grant access to the dog owner's address in this case was distinguished from the circumstances of previous Orders #M-39, M-55, M-746. Here the difficulty in locating the dog owner's address due to the relative commonness of the name, the fact that the first name did not reveal the gender of the owner and that the owner could reasonably reside far from a municipality known as a vacation destination, significantly affected the appellant's rights to commence a civil action. (Order #M-1146)

ss.(2)(d)

This Provision Is Not Relevant

• Even where this provision is satisfied, the address of an individual may not be released because it is not required in order that the appellant proceed with a civil claim. The institution had released the name of the individual and therefore the civil action could proceed on the basis of that information. (Order #M-39)



• The identity or status of the requester is not a relevant consideration in this regard. Disclosure under this Part of the Act is, in effect, disclosure to the world and not just the requester. (Orders #M-96, P-578)



• This provision is not relevant to a determination as to whether elected officials in a municipality have the "right" to access the number of hours worked by employees of the municipality. This is not the type of "right" contemplated by this section. (Order #M-35)



• This provision does not apply to a request for records regarding a complaint that was investigated under the Police Act. Procedures available under the Police Act provided the appellant with the right to a fair hearing and an opportunity to respond to the charges. In these circumstances, the presumption in ss.(3)(b) was not rebutted. (Order #P-285, M-655)



• Disclosure of records was not relevant to a fair determination of rights where the institution had decided that no repercussions would flow from the complaint because no rights were at risk. (Order #P-223)



• This provision does not apply where an appellant seeks complaint information that was the basis for him being denied the lease of a property. The appellant said that he needed the information to "defend and vindicate" himself, but he did not provide any evidence of any legal right that may apply. (Order #P-401)



• In this case, this provision did not apply to the disclosure of the identity of the author of certain letters written to an institution regarding the requester. The requester said that if the identity was of a certain individual, steps could be taken to enforce a peace bond. The Commission stated that this factor did not apply because there was some doubt as to whether legal action could be taken in the circumstances and no current legal action had been commenced. (Order #P-515)

ss.(2)(d)

• Records relevant to an Ontario Human Rights Commission complaint were not disclosed even though a board of inquiry had been established to hear the complaint. The requester was unable to establish that the records were needed to prepare for the hearing or to ensure that the hearing was impartial. (Order #P-816)



• This provision did not apply to the release of records of one deceased individual to the family of two other deceased individuals where all were killed in a motor vehicle accident. This was so even though the Coroner had conducted an investigation and rendered a report. The records at issue were subject to the presumption against disclosure for medical records. (Order #P-945)

ss.(2)(d)

This Provision is Relevant

• The application of this provision resulted in the disclosure of the name of a child who allegedly threw a stone at another child in a schoolyard. The lawyer acting for the parents of the child who was hurt in the incident had a legal right to add the child as a party to the existing civil action, and the child's name is necessary in order to do so. However, ss.(2)(d) does not apply to the address of the child who was allegedly the perpetrator and to the names and addresses of the witnesses. As a result, this latter information was not disclosed. (Order #M-55)



• A request was made for an interim order issued by the Criminal Injuries Compensation Board in respect of a claim applied for by the family of a deceased. The access request was made by a defendant in a civil action for damages brought by the family of the deceased. The Commissioner held that notwithstanding that the amount of the interim order had been disclosed to the requester in mediation, the information in the interim order did have a direct bearing on the civil action and therefore this subsection weighed in favour of disclosure of the interim order to the requester. (Order #P-919, P-1136)



• The Commission ruled that this subsection is relevant to the disclosure of the names of tenants who occupied the unit in which a fire started to the insurers of the building. The insurance company wanted to name the tenants in a civil action commenced by the insurance company to pursue a legal claim against the individuals who were allegedly responsible for the fire. The Commission ordered that the names be disclosed. (Order #M-592). In another case, the names were not ordered released because the Commission found that this provision was not relevant in the circumstances. The insurance company provided no evidence that its insured was in the process of or even considering asserting any legal rights it might have with respect to the fire, nor that this information was required in order for it to do so. (Order #M-748)

ss.(2)(d)

• In order for this section to be relevant, the following factors must be established: 1. the right in question is a legal right, which is based in common law or statute; 2. the right is related to a proceeding which is either existing or contemplated; 3. the personal information which the appellant is seeking access to has some bearing on or is significant to the determination of the right in question; and 4. the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing. (Orders #P-268, P-304, etc. PO-1868)