ORDER 98
Appeal 880287
Ministry of Correctional Servcies
O R D E R
This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 (the "Act") which gives a person who has made a request for access to a record under subsection 24 (1) a right to appeal any decision of a head under the Act to the Commissioner.
The facts of this case and the procedures employed in making this Order are as follows:
On July 29, 1988 the Ministry of Correctional Services (the "institution") received a request from an individual for copies of certain documentation relating to an inquiry into a named open custody facility for young offenders (the "facility").
By letter to the requester dated September 7, 1988, the institution advised that access was granted to eight documents, subject to certain severances applied to two of these documents. The institution's letter went on to say that the "decision has been made to deny you access to the Ministry's internal investigation report and related correspondence...". The institution relied upon subsections 12(1) (e), 13(1), 14(2) (a), 14(2) (c), 14(2) (d) and 21(1) of the Act to justify its denial of access.
By letter dated September 12, 1988, the requester appealed the decision of the head of the institution (the "head"). I gave notice of the appeal to the institution.
Between September 12, 1988 and March 10, 1989, the Appeals Officer assigned to this case made efforts to mediate a settlement. The records at issue were obtained and examined. The appellant indicated that he did not wish to pursue that part of his appeal dealing with a severance applied to one of the records. Settlement of all the issues was not obtained, however.
By letter dated March 13, 1989, I sent notice to the head of the institution and the appellant that I was conducting an inquiry to review the decision of the head. Enclosed with this letter was a copy of a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the case and sets out questions which paraphrase those sections of the Act which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. The Appeals Officer's Report indicates that the parties, in making representations to the Commissioner, need not limit themselves to the questions set out in the report. The report is sent to all parties affected by the subject matter of the appeal.
On March 23, 1989 I asked both parties to submit written representations by April 18, 1989. Representations were received from the institution, but to the date of this Order no representations have been received from the appellant in this matter.
On April 18, 1989, the institution indicated its willingness to withdraw its claim to exemption with regard to severances applied to one of the remaining records involved in this appeal. This action on the part of the institution narrowed the scope of the present appeal to one internal memorandum dated June 3, 1988 together with a related memorandum dated June 1, 1988, and an attached form. The institution has claimed exemption under subsections 14(2)(a) and (d) with respect to these documents, and exemption under subsection 21(1) with respect to the memorandum of June 1, 1988.
The issues arising in the context of this appeal are as follows:
A. Whether the records or any part of the records at issue are exempt from disclosure under the provisions of subsections 14(2)(a) or (d) of the Act.
B. Whether the records or any part of the records at issue are exempt from disclosure under the provisions of section 21 of the Act.
The purposes of the Act as set out in section 1 should be noted at the outset. Subsection l(a) provides the right of access to information under the control of institutions in accordance with the principle that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. Subsection l(b) sets out the counterbalancing privacy protection purpose of the Act. The subsection provides that the Act should protect the privacy of individuals with respect to personal information about themselves held by institutions and should provide individuals with a right of access to their own personal information.
It should also be noted that section 53 of the Act provides that the burden of proof that the record or part of the record falls within one of the specified exemptions of the Act lies upon the head.
ISSUE A: Whether the records or any part of the records are exempt from disclosure under the provisions of subsections 14(2) (a) or (d) of the Act.
Subsections 14(2)(a) and (d) read as follows:
14.--(2) A head may refuse to disclose a record,
(a) that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;
(d) that contains information about the history, supervision or release of a person under the control or supervision of a correctional authority.
As noted above, the record at issue in this matter consists of an internal memorandum dated June 3, 1988 together with a related memorandum dated June 1, 1988 and an attached form. Subsections 14(2) (a) and (d) have been invoked by the institution to justify its decision to deny access to the whole of these records, comprising ten pages in all.
For the sake of clarity, I shall deal with the application of subsections 14(2)(a) and (d) separately.
Subsection 14(2)(a):
In written representations to me, the institution outlined the factual circumstances that led to the production of the internal memorandum dated June 3, 1988. A letter sent by the appellant to the Ministry of Correctional Services listed a number of complaints regarding the administration and programmes of the facility. In view of the serious nature of some of the allegations made, the Assistant Deputy Minister ordered an immediate investigation and inspection of the facility. This investigation resulted in the memorandum dated June 3, 1988 which the institution seeks to exempt from disclosure pursuant to subsection 14(2)(a) of the Act. The institution goes on in its representations to outline some of the functions of the institution with respect to enforcing and regulating compliance with certain laws.
The difficulty I have accepting this argument stems from both the nature of the investigation that gave rise to the record in question and the mandate of the institution. The
investigation and inspection of the facility was strictly internal. That is, it was conducted by and within the institution, with a view to resolving possible problems inside the facility. The provisions of subsection 14(2) deal, broadly speaking, with the confidentiality that necessarily surrounds law enforcement investigations in order that institutions charged with external, regulatory activities can carry out their duties. I cannot accept that the provisions of subsection 14(2)(a) were intended to apply to the circumstances of this case.
I find that the institution has not met the onus of showing that the subject record is exempted from disclosure by the provisions of subsection 14(2)(a).
Subsection 14(2)(d):
In its representations concerning the application of subsection 14(2)(d), the institution points out that the appellant was himself a resident at the facility. The record, which contains information about the appellant, therefore contains information about the history of a person under the control or supervision of a correctional authority. From this, the institution argues that the record falls properly within the provisions of subsection 14(2)(d).
Once again, I cannot agree with the interpretation the institution makes of the relevant provision of the Act. In my view, the purpose of subsection 14(2)(d) is to allow an appropriate level of security with respect to the records of individuals in custody. I am not prepared to extend the application of this provision so far as to allow it to be used to deny access to information simply on the basis that the requester, no longer in custody, is seeking information about himself.
I find that the requirements for exemption under subsection 14(2)(d) have not been met. Accordingly, the institution's claim for exemption from disclosure under subsection 14(2) of the Act fails.
ISSUE B: Whether the records or any part of the records at issue are exempt from disclosure under the provisions of section 21 of the Act.
In this case, the institution is claiming exemption under section 21 of the Act to justify its refusal to disclose the memorandum of June 1, 1988. This memorandum, three pages in length, is an attachment to the memorandum of June 3, 1988. As the institution points out in its submissions, the bulk of this memorandum relates to an individual other than the requester. This individual is named repeatedly in the record and the circumstances outlined in the memorandum clearly specify that individual's identity.
When examining a claim for exemption under the provisions of section 21 of the Act, I must first determine whether the record in question contains "personal information" under the definition provided in subsection 2(1) of the Act and, after examining the record in question, I am satisfied that the record does contain personal information as defined in the Act.
The relevant portion of subsection 21(1) of the Act reads as follows:
21.--(1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,
(f) if the disclosure does not constitute an unjustified invasion of personal privacy.
The institution in its representations argues that disclosure of the memorandum dated June 1, 1988 would constitute an unjustified invasion of personal privacy and cites subsections 21(2)(f) and (i) of the Act, which read as follows:
21.--(2) A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,
(f) the personal information is highly sensitive;
(i) the disclosure may unfairly damage the reputation of any person referred to in the record.
Having reviewed the record at issue, and the representations made, I am satisfied that, considering all the relevant circumstances as required under the provisions of subsection 21(2), disclosure of the record would constitute an unjustified invasion of personal privacy. The institution indicates in its written representations that severance of the personal information from the record at issue was considered and dismissed as "impractical". Having reviewed the record, I am in agreement that any effort to sever the subject record so as to remove all of the personal identifiers would render the record meaningless.
Accordingly, I find that the head's refusal to disclose the memorandum dated June 1, 1988 to the appellant is justified by the provisions of subsection 21(1) of the Act.
In conclusion, I order the institution to release the record consisting of the memorandum dated June 3, 1988 to the appellant within twenty (20) days of the date of this Order.
The institution is further ordered to advise me in writing within five (5) days of the date of disclosure of the record, of the date on which disclosure was made.
Original signed by: September 28, 1989
Sidney B. Linden Date
Commissioner