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| s.28 |
SUMMARY OF ORDERS/PRIVACY REPORTS |
s.21 |
ss.(1)
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Where the notice has not been provided to third parties, the Commissioner may in an interim
Order require the institution to provide notice. (Orders #P-141, P-162, P-163)
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Where a third party that has been given notice under this section provides representations to
an institution, access requests for that material are to be treated as general requests, which
are governed by the exemptions in Ontario's freedom of information and privacy legislation.
While s.52(13) [FIPPA] \ s.41(13) [MFIPPA] states that parties are not entitled to access to
another party's representations at the appeal stage, there is no equivalent provision in respect
of access to such representations at the request stage. (Order #P-78)
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Access under the Act has not been given where an official from an institution allows an
individual to read a record. In this case, the institution allowed the individual to read a
complaint letter and later refused the individual access to the letter in response to an access
request. The intention of the institution is an important factor in determining
whether access
under the Act has been provided. One essential element of intention is whether the institution
considered the notice requirements of the Act when the individual was allowed to read the
documents. In order to be provided with access for the purposes of the Act, there must be
some evidence that the institution has treated the matter as coming under the provisions of
the Act. (Orders #P-162, M-180, P-274)
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Where the Commission, during an appeal, learns that an institution has provided a requester
with access to a record, which includes the personal information of a third party, without first
giving that third party notice of the intention to provide access, then the Commission may
request that its compliance department investigate these practices of the institution. (Order
#P-681)
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If an institution's notice to an affected party includes a reference to
other unlisted records which, in the institution's opinion, do not require
notification under the Act, the appeal provisions of s. 50(1) apply to that
decision as well. The head is required to make a discretionary decision to
notify or not notify. Whatever the head concludes, qualifies as a
"decision" which is appealable to the Commission. The Commission notes
that this is consistent with the principle enunciated at ss. 1(a)(iii), that
"decisions on the disclosure of government information should be reviewed
independently of government".(See also ss. 50(1)) (Order #PO-1694)
ss.(1)(a)
- The ministry submitted that notice was not required with respect to
particular records because in its view those records did not qualify
for exemption under s. 17(1). It also submitted that " it cannot
be assumed that all information supplied by a third party would fall
under the notice requirements, and that the Ministry has discretion to
determine the likelihood of any particular record meeting the
requirements of s. 17(1) in the context of making a notification
decision." Relying on PO-1657, the Commission notes that whereas
the "reasonable doubt" test applies when dealing with
notification regarding personal information, the word
"might" in s. 28(1)(a) establishes an equally low threshold
for notification regarding s. 17 information. " If a head
concludes that a record might contain s. 17(1)-type information ...
that ... might have been supplied in confidence ... it is not
appropriate for an institution to decide that notice is unnecessary
based on an assessment that the potential for harm from disclosure
does not meet the threshold established by s. 28(1)(a). The potential
for harm ... must be made in the individual circumstances of a
particular request ... . [T]he notification requirements of s. 28 were
designed to allow affected persons an opportunity to provide input on
this issue before a decision is made regarding disclosure". In
this case the Commission determined that the Ministry had reason to
believe that the records might have been supplied in confidence, and
that disclosure might affect the appellant's interests. (Order #PO-1694)
- Where the Commission determined that the ministry had failed to give
notice to the affected party regarding a number of records, the
Commission emphasized that it is the institution's - not the
Commission's - responsibility to identify the required
notifications in the context of deciding whether records should be
disclosed or withheld. However, in the circumstances of this case, the
Commission decided to order a remedy allowing for "an expeditious
determination of the proper treatment of all responsive records, while
at the same time permitting the parties an opportunity to make
representations on all records for which notification should have been
given". Consequently, the Supplementary Notice of Inquiry which
the Commission attached to this interim order identified the records
for which notification should have been issued by the ministry
pursuant to s. 28(1)(a). (Order #PO-1694)
ss.(1)(b)
- The notice requirements of this provision are engaged
whenever an institution has reason to believe that the
disclosure of personal information may constitute an
unjustified invasion of personal privacy. If an institution
is relying on one of the exceptions listed in sections
21(1)(a) through (e), and there is a reasonable doubt as to
whether the requirements of these exceptions have been
established, the institution may well have reason to believe
that disclosure may constitute an unjustified invasion of
personal privacy for the purposes of section 21(1)(f), in
which case notice would be required. (Privacy Investigation Report #I98-018P, Order #PO-1657)
ss.(2)(b)
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Where a complete copy of the record can not be disclosed to the third party for their decision
on its release, the institution should consider providing the third party with a detailed
description of the record's contents or a copy of the record in a severed form. (Order #P-904)
- A records index adequately describes records by providing details such as the date of the records,
who they are from, who they are addressed to and the general nature of their contents.(Order
#M-1143)
ss.(3)
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In a case where an institution conducted notice with an affected party after the 30 day time limit for processing had elapsed it was ordered to issue its access decision immediately after receipt of the affected party's representations. The Commission found that the twenty day time period allotted to the third party to object to the disclosure should not be abridged, however that the time period for the Ministry to issue its decision is not similarly fixed. (PO-1900)
ss.(9)
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If third parties do not appeal the disclosure decision to the Commissioner within 30
days, the
record must be disclosed. (Order #P-16)
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OCIPO 