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| s.37 |
SUMMARY OF ORDERS/PRIVACY REPORTS |
s.27 |
(See also, cases under s.21(1)(c) [FIPPA] \ s.14(1)(c)
[MFIPPA])
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This provision excludes the privacy provisions of the Act only if the information in question
is held by the institution maintaining it for the express purpose of creating a record available
to the general public. Other institutions cannot claim the benefit of the exclusion for the
same personal information unless they, too, maintain the information for the purpose of
making it available to the general public.(Privacy Investigation Report #I94-011P) This
is so even if the individual himself makes the personal information public in the media.
(Privacy Investigation Report #I95-024M)
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Even though records are submitted pursuant to a statute which 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)
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Personal information may be public in one sense and 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)
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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)
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In keeping with the privacy rules when discussing sensitive personnel matters, a Board of
Education should go into a closed meeting under s.207(2) of the Education Act.
A
recommendation, which is worded so as not to disclose sensitive personal information,
should then be presented to the board in an open meeting under s.207(1) of the Education
Act to ratify the decision. Similarly, the notice provisions of s.268 of the Education Act should be complied with without publicly disclosing personal
information. (Order #M-481)
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In this case, the Commission ruled that the names of inmates who were detained in a
detention facility prior to trial were subject to the personal privacy exemption. This
provision was not discussed. (Order #P-657)
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It cannot be said that police are maintaining personal information for the purpose of creating
a record available to the public when: charges against the individual had not yet been laid,
documents compelling a court appearance had not yet been signed and an information had
not been laid in court. (Privacy Investigation Report #I92-66P)
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The Commission received a complaint regarding the disclosure of two letters of resignation.
The institution had acknowledged that two letters of resignation of an employee were
included in a package made available to the public prior to a Council meeting. The
institution, a Council stated that since the first resignation letter was addressed to the
Minister of Health, and copied to Council members, the resigning Council Member could
have expected the resignation to be a public matter and that the Council "had no ability not
to make it a public matter". It was the Council's position that the Council member who
addressed the second letter to the Minister had also expected and required his letter of
resignation to be made public. The Council was of the view that these letters had already
been copied to a number of people and had been made public by the writers themselves.
Therefore in the institution's view the information was a "public record". The
Commission
determined that the personal information about the complainant contained in the resignation
letters could not be said to be maintained for the purpose of creating a record that is
available to the general public. The Commission also noted that the Council could have
publicly noted the resignations without releasing the actual letters containing the
complainant's personal information. (Privacy Investigation Report #I94-023P)
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The Commission concluded that a public reprimand of a named employee for providing
confidential information to a reporter was not in accordance with this section. The
Commission held that the institution did not maintain the information concerning the
complainant's reprimand for the purpose of making it available to the public. (Privacy
Investigation Report #I93-053M)
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An institution cannot disclose personal information about an employee simply because the
personal information is revealed in a published decision of the Grievance Settlement Board
(GSB). This section may be relied upon to exclude a record from the privacy requirements
of the Act only if the institution itself maintains the personal information
"specifically" for
the purpose of creating a record available to the general public. This is not the case with
regard to a published GSB decision. (Privacy Investigation Report #I93-053M,
I93-009M,
I94-030P)
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Copies of Appointment of Voting Proxy forms which appoint a person to vote in a municipal
election on behalf of someone else and which are retained by the Clerk, are not public
records. Sections 104 and 105 of the Municipal Elections Act do not authorize a
municipality to treat these forms as public records. (Privacy Investigation Report I94-080M)
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OCIPO 