• The fact that a notified affected party does not provide representations may be a relevant factor to take into account when balancing access and privacy rights under this section, however the institution should consider factors such other affected parties with similar interests consenting to disclosure, or any particular facts the institution may be independently aware of which reduce the potential sensitivity of the affected persons personal information or reduce the likelihood that it was provided in confidence. (MO-1304-F)

ss.(b)(See cases summarized under s.21(2) and (3) [FIPPA] \ s.14(2) and (3) [MFIPPA])

General

• This section is a discretionary exemption and even if the disclosure of the information would be an unjustified invasion of another individual's privacy, discretion can be exercised in favour of disclosure. (Orders #P-37, P-377, P-375, P-381, P-392, P-399, P-401, P-403, P-407, M-22, M-28, M-54, M-56, P-360, M-57, M-63, M-75, M-82, M-88, P-417, P-428, M-95, M-122, M-125, P-447, P-449, P-466, P-473, P-492, P-494, P-499, M-199, P-549, M-199, M-198, M-202, P-548, P-550, P-597, P-598, M-211, M-212, P-589, M-243)

• Where the personal information relates to the requester, the onus should not be on the requester to prove that disclosure of the personal information would not constitute an unjustified invasion of the personal privacy of another individual. Since the requester has a right of access to his or her own personal information, access should only be denied if it can be demonstrated that disclosure would constitute an unjustified invasion of another individual's privacy. In M-347, the Commission ruled that the 'secret files' kept regarding certain staff of an institution were accessible by those staff members. (Orders #M-347, M-110, P-440, P-1102)

• In determining if disclosure would constitute an unjustified invasion of another individual's personal privacy, a Head must consider all relevant circumstances and need not be restricted to the specific criteria in the Act. (Order #P-14)

• A requester sought information about himself that was contained in correspondence provided to the ministry by the appellant. Information that is about both the requester and the appellant was properly released where the information about the appellant was neither highly sensitive nor provided with an expectation of confidentiality. Therefore, the disclosure would not constitute an unjustified invasion of personal privacy. (Order #P-371)

• Complaint information about the activities of a student at a College was implicitly supplied in confidence and contained highly sensitive information about affected persons. As a result the institution correctly applied the exemption. (Order #P-377)

• This section is a discretionary exemption and even if the disclosure of the information would be an unjustified invasion of another individual's privacy (including a presumed invasion of privacy), discretion can be exercised in favour of disclosure. (Order #M-449)

• This section may be claimed to prevent unjustified invasions of personal privacy with respect to records containing the requester's personal information. In this case, the requester is a public body. By definition, information about the requester cannot be its personal information since it is not an individual and this section is not applicable. (Order #M-539)

• This provision was not applicable to records about a deceased affected party kept by the institution regarding a coroner's report into the accidental death of the requester's family. Death records concerning the affected party were unrelated to the requester though all the parties died in a motor vehicle accident. (Order #P-945)

• The fact that a person may be able to obtain access to information through court processes should not be the sole issue that affects whether access should be granted under the Act (Order #M-1146)

• 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)

• Operational records are not collected, prepared, maintained or used by or on behalf of an institution in relation to any of sections 65(6)1, 65(6)2 or 65(6)3 merely because a third party decides to commence a lawsuit when there is no evidence of steps having been taken by the institution or the employee in an employment-related or labour relations context. (Order #MO-1287)

ss.(d)

• This section does not give the head discretion to disclose a record "with an explanation." Either the prejudice contemplated by the section can be reasonably expected as a result of disclosure or it will not. (Order #P-19)

• Where the medical information is not current, the institution has to provide sufficient information to satisfy the Commission that it is reasonable, despite the intervening time period, to expect that the disclosure would affect the mental or physical health of the individual. (Orders #P-259, P-399)

• This exemption does not apply where the assessment is not sufficiently current to find that disclosure could reasonably be expected to prejudice the mental health of the appellant. (Order #P-399)

• In this case, the Commission ruled that this provision did not prevent the disclosure of a psychiatric report about the requester. While the report was the result of a court- ordered assessment made in the context of a criminal proceeding, the police force had not provided sufficient evidence that probable harm was reasonable. The mere possibility of harm was not sufficient. (Order #M-312)

• Medical information consisting of observations or advice of medical professionals pertaining directly to the requester's mental state was exempt under this provision. Representations from the institution and a psychiatrist who treated the requester provided sufficient evidence of possibility of prejudice to the requester's mental health. (Order #M-747)

ss.(e)

• This provision allows an institution to deny access to a requester's own personal information where the information is a correctional record and release of the information could reasonably be expected to reveal information that was supplied in confidence. Removing the names of individuals who provided information may not be sufficient to protect their identities. (Orders #P-64, P-421, P-748, P-1193)

• A record that contains information received by Ministry of Correctional Services employees about an inmate's application for temporary leave of absence was exempt under this provision. The third party provided this information in confidence. (Order #P-421)

• A requester's probation and parole file was exempt under this provision. These records were held to be correctional records, the contents of which were provided in confidence. (Order #P-748)

• Extracts from occurrence reports prepared by jail staff and a misconduct report were exempt under this provision. (Order #P-1042)

• Because neither the ministry nor the third party could demonstrate an expectation of confidentiality in their written communications or in the ministry's policies, this exemption did not apply.(Order #P-1332)

ss.(d) and (e)--"Reasonable Expectation"

• In respect of the exemptions, 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, and in respect of this exemption, Order #P-595)