ORDER 139
Appeal 890008
Ministry of Community and Social Services
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 to the Commissioner.
The facts of this case and the procedures employed in making this Order are as follows:
- On December 15, 1988, the requester, represented by her lawyer, made a request to the Ministry of Community and Social Services (the "institution") for the following information:
Contents of my file BATEMO5054090 as outlined in #3.
All information relating to the applicant on file with the Ministry of Community and Social Services, Director of Income Maintenance, including the contents of an eligibility review officer's report made sometime during 1988.
On December 28, 1988, the institution responded, granting partial access to the records requested. The institution claimed exemption for part of the record under subsection 14(1)(b) of the Freedom of Information and Protection of Privacy Act, 1987.
On January 24, 1989, the requester appealed the institution's decision through her lawyer, and I gave notice of the appeal to the institution.
The records at issue were obtained and reviewed by an Appeals Officer from my staff. In an effort to effect a settlement, the Appeals Officer contacted both the appellant and the institution. The Eligibility Review Officer of the institution contacted some of the persons whose names and information were contained in the record with a view to ascertaining whether they objected to disclosure of this information to the appellant. One person consented to the release of the information concerning him, and the institution agreed to release this information to the appellant. Other persons concerned declined to consent to disclosure. However, at this time, the institution was of the opinion that only one affected person refused to consent to disclosure, and conveyed this opinion to the Appeals Officer.
The institution suggested that the appellant could subpoena the entire record at issue upon the commencement of the hearing before the Social Assistance Review Board, and at that time request an adjournment to enable him to examine the record. The appellant was not satisfied with this suggestion. Settlement was not effected and the parties indicated that they were content to proceed to an inquiry.
On August 24, 1989, I sent notice to the appellant, the institution and the affected person identified by the institution as still resisting disclosure, that I was conducting an inquiry to review the decision of the head. Enclosed with this letter was 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 appeal 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 also indicates that the parties, in making representations to the Commissioner, need not limit themselves to the questions set out in the Report. The Appeals Officer's Report is generally sent to all affected parties in an appeal.
On August 31, the institution informed this Office that it had been mistaken in its earlier contention that only one person objected to the disclosure of information concerning her in the record, and that in fact three persons declined to consent to the release to the appellant of information supplied to the institution by them, including their names. Accordingly, on September 8, 1989, two other affected persons were notified of the appeal by this Office, and invited to submit representations to me.
Written representations were received from the appellant and the institution.
In its representations, the institution raised two other exemptions with respect to the records at issue in the appeal _ it claimed that subsections 14(1)(d) and 49(b) applied in the circumstances of the appeal. The institution withdrew its claim for exemption under subsection 14(1)(b). Accordingly, the appellant and the affected parties were notified by this Office of the new claims for exemption, and were afforded an opportunity to submit further representations to address these new issues.
I have received additional representations from the appellant. The appellant raised the question of my jurisdiction to entertain additional exemptions after the
original decision, if the head has not made a formal notice of an extension of time for making a decision under section 27 of the Act.
- The Appeals Officer contacted the affected parties who had been notified of the appeal in an effort to determine the circumstances under which the information at issue in this appeal had been provided to the institution. At this point two of the affected parties consented to the disclosure of their names and the information which they had provided to the institution, to the appellant. One of the affected parties who had been notified did not consent to disclosure of her name, address, and the information which she had provided to the institution. The information with respect to the consents to disclosure was conveyed to the institution by the Appeals Officer. The Appeals Officer also contacted another affected party, who had not hitherto been identified by the institution, and informed her of the appeal. This person also declined to consent to the disclosure of her name and the information which she had provided.
It is important to note at the outset the purposes of the Act as set out in section 1. Subsection 1(a) provides a right of access to information under the control of institutions in accordance with the principles that information should be
available to the public, and that necessary exemptions should be limited and specific. Subsection 1(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 therefore provide individuals with a right of access to that information.
Further, section 53 of the Act provides that the burden of proof that the record falls within one of the specified exemptions in this Act lies with the head of the institution (the "head"). In the circumstances of this case, the head shares with the affected parties the burden of proof with respect to the applicability of subsection 49(b).
The issues arising in this appeal are as follows:
A. Whether the head may claim additional exemptions under the Act for the first time in its representations.
B. If the answer to Issue A is in the affirmative, whether the information contained in the records qualifies as "personal information", as defined by subsection 2(1) of the Act.
C. If the answers to Issues A and B are in the affirmative, whether the exemption provided by subsection 49(b) of the Act applies in the circumstances of this appeal.
D. Whether the exemption provided by subsection 14(1)(d) of the Act applies to any of the records, or to any parts thereof.
E. If the answer to Issue D is in the affirmative, whether the exemption provided by subsection 49(a) of the Act applies in the circumstances of this appeal.
The three records at issue in this appeal are the Eligibility Review Officer's Report, a Referral for Eligibility Review Form, and a page containing handwritten notes. The Eligibility Review Officer's Report (the "Report") details, in chronological order, the contacts the Eligibility Review Officer (the "ERO") made with various persons and companies and the information received from each source.
The records relate to an investigation of the requester by the Income Maintenance Branch of the Ministry of Community and Social Services (the institution), which investigation led to a decision by the Director of Income Maintenance to deny benefits to the requester, and to assess an overpayment. This decision has been appealed to the Social Assistance Review Board, and a hearing is pending on the matter.
The Report does not give the names of the persons to whom the ERO spoke at seven of the companies contacted, nor does it contain the name of a neighbour who was contacted, although it gives clues as to his/her address. The Report contains handwritten notations opposite each typewritten entry.
The Referral for Eligibility Review Form contains the name of a complainant, the name and address of the requester, the nature of the complaint, the marital status of the requester, and name and other information about her alleged spouse. It also contains information as to the source of the complainant's knowledge.
The page of handwritten notes contains names, addresses and telephone numbers, as well as information relating to an investigation.
Much of the information outlined above has already been disclosed in the Report of the Income Maintenance Supervisor, which was sent to both the appellant and the Social Assistance Review Board. However, this disclosed Report does not contain the name of the complainant given on the Referral for Eligibility Review Form, the source of the complainant's knowledge or the names of the other informants, although it does outline the information provided by them.
ISSUE A: Whether the head may claim additional exemptions under the Act for the first time in its representations.
The appellant has raised, as a preliminary issue, the question of my jurisdiction to entertain additional claims for exemption by the institution for the first time in its representations. I have addressed this issue in earlier orders.
In Order 15, (Appeal Number 880010), dated September 8, 1988, I stated at page 3:
I expect that the introduction of new or different grounds for refusing access to records at the appeal stage will be the exception rather than the rule. Pursuant to subsection 29(1) of the Act the institution has a statutory obligation, when refusing to provide access, to identify the specific provision of the Act under which access is refused and the reasons the provision applies to the record in question. Clearly, it would be preferable if the parties to an appeal would raise all arguments they intend to rely upon at the first possible opportunity. When a new issue is introduced, at the appeal stage, it slows the process down. However, I understand and accept that the parties may not always be aware, at the first instance, of all arguments they will eventually want to make.
When a new issue, that is or may be relevant, is introduced by either party at the appeal stage, it is incumbent upon me as Commissioner to ensure that other interested parties are made aware of this new issue and are given an opportunity to respond to it. In this case, the appellant was advised of the new issue raised by the institution, given an opportunity to respond, and did so.
Accordingly, it is my view that, in this case, it is permissible to raise this issue... at the appeal stage, despite its untimeliness.
In this appeal, the appellant was advised of the new exemptions raised by the institution, was given the opportunity to respond, and I have received and considered these additional representations.
Accordingly, in the circumstances of this appeal, I find that there is no prejudice to the interests of the appellant or his client the requester, in entertaining the additional exemptions claimed at the appeal stage.
ISSUE B: If the answer to Issue A is in the affirmative, whether the information contained in the records qualifies as "personal information", as defined by subsection 2(1) of the Act.
In all cases where the request involves access to personal information it is my responsibility, before deciding whether the exemption claimed by the institution applies, to ensure that the information in question falls within the definition of "personal information" in subsection 2(1) of the Act, and to determine whether this information relates to the appellant, another individual or both.
Subsection 2(1) of the Act states,
"personal information" means recorded information about an identifiable individual, including,
(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,
(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, telephone number, fingerprints or blood type of the individual,
(e) the personal opinions or views of the individual except where they relate to another individual,
(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,
(g) the views or opinions of another individual about the individual, and
(h) the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual."
In my view, all of the information contained in the records at issue falls within the definition of personal information under subsection 2(1), with the exception of the name and professional affiliation of the complainant identified in the Referral for Eligibility Review Form. I distinguish the identity of this individual because of her professional affiliation. I find that in all likelihood, the complainant was acting in her professional capacity rather than her personal capacity when she provided the information which is contained in the Referral for Eligibility Form.
I have been provided with no evidence to suggest that the information contained in the Referral for Eligibility Review Form is personal to the complainant, but an examination of the record leads me to believe that it relates to the requester and other individuals. I find that the statements and/or allegations contained in each of the records are properly considered recorded information about the requester and other individuals and are, therefore, personal information as defined by the Act.
ISSUE C: If the answer to Issues A and B are in the affirmative, whether the exemption provided by subsection 49(b) of the Act applies in the circumstances of this appeal.
I have found under Issue B that most of the information contained in the records at issue, with the exception of the name and professional affiliation of the complainant identified in the Referral for Eligibility Review Form (one of the two sources of information objecting to disclosure), qualifies as "personal information" under the Act. I must now determine whether access should be denied to the records on the basis that they fall within the exemption provided by subsection 49(b).
Subsection 47(1) of the Act gives individuals a general right of access to:
(a) any personal information about the individual contained in a personal information bank in the custody or under the control of an institution; and
(b) any other personal information about the individual in the custody or under the control of an institution with respect to which the individual is able to provide sufficiently specific information to render it reasonably retrievable by the institution.
However, as I have stated in my Order 37, (Appeal Number 880074), dated January 16, 1989, this right of access is not absolute. Section 49 provides a number of exceptions to this general right of disclosure of personal information to the person to whom the information relates. Specifically, subsection 49(b) provides that:
A head may refuse to disclose to the individual to whom the information relates personal information,
(b) where the disclosure would constitute an unjustified invasion of another individual's personal privacy;
In Order 37 above, I stated at page 9:
Subsection 49(b) of the Act introduces a balancing principle. The head must look at the information and weigh the requester's right of access to his own personal information against another individual's right to the protection of their privacy. If the head determines that release of the information would constitute an unjustified invasion of the other individual's personal privacy, then subsection 49(b) gives him discretion to deny access to the personal information of the requester.
Subsections 21(2) and (3) of the Act provide guidance in determining whether disclosure would result in an unjustified invasion of another individual's personal privacy. Subsection 21(3) lists a series of circumstances which, if present, would raise the presumption of an unjustified invasion.
Subsection 21(2) provides some criteria for the head to consider in determining whether disclosure would result in an unjustified invasion of an individual's personal privacy.
The personal information relating to an individual other than the requester in the records at issue in this appeal is:
(i) the names, address and information provided by the informants in the Eligibility Review Officer's Report;
(ii) information about the appellant's husband in the Eligibility Review Officer's Report, and in the Referral for Eligibility Review Form.
(iii) the names and addresses of two persons mentioned in thehandwritten notes of the investigation.
The information in the Eligibility Review Officer's Report that was provided by the other informant who declined to consent to disclosure (i.e., the person who was not acting in a professional capacity when she provided the information), is personal both to her and to the requester.
The institution submits that this "informant[s] has a personal interest in not having his or her identity disclosed. ...If it becomes generally known that... informed on [a] Family Benefits recipient, there could be a very serious impact on her relationships in the community." The Appeals Officer contacted this informant to determine the circumstances under which she had provided the information to the institution. The informant stated that she had provided her information in the strictest confidence, on the understanding that her name, address and information would not be disclosed.
She stressed that the Eligibility Review Officer had assured her that her information would be kept confidential because it was "only hearsay." The informant also stated that she could not consent to the disclosure of her name because, having been provided by the institution with an opportunity to view the record, she disagreed with the description of the information she had provided that was contained therein.
The information about the requester's husband, which is contained in the Eligibility Review Officer's Report, has already been disclosed to the appellant in the Report of the Income Maintenance Supervisor.
The names and address of the two persons mentioned in the handwritten notes are not, as far as I can see, the names of people who provided information to the institution. It would appear from the record that the names of these people have a very tenuous connection with the requester's case, and they were not personally involved in the investigation.
The requester has had an adverse decision from the Director of Family Benefits as a result of an investigation arising from a
complaint, and a hearing to review this decision is pending before the Social Assistance Review Board. In Order 37 (supra) I stated at page 11:
In such situations, fairness demands that the person complained against be given as much disclosure of the allegations as possible. The degree of disclosure would depend on the circumstances of each particular case, but should be more extensive if the complaint is likely to result in discipline.
In my view, a complaint leading to a denial of Family Benefits is not so different from an employment_related complaint leading to disciplinary procedures as to be distinguishable.
In his letter of appeal, the appellant stated that:
The Director of Income Maintenance is alleging that our client... is no longer eligible to receive benefits because she has "reconciled with her spouse". As well, it is claiming an overpayment from her in the sum of $11,647.46. Our client has appealed the decision denying her benefits to the Social Assistance Review Board. In order to properly prepare for the hearing, it will be necessary for us to know the basis for the Ministry's conclusion that our client has reconciled with her spouse and we have accordingly requested the information from the Eligibility Review Officer.
Access to the contents of the Eligibility Review Officer's Report has been denied pursuant to section 14(1)(b) of the Act which allows the head to refuse to disclose a record where the disclosure could reasonably be expected to interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result. However, Sharon Lessard, the supervisor at the Kingston office has advised that Doug McKeown, the Eligibility Review Officer, intends to appear at the Social Assistance Review Board and give oral evidence of the basis for his conclusions.
In our view, if Mr. McKeown intends to give evidence at the hearing, and be cross_examined thereon, there is no reason why he cannot give us early disclosure of that
evidence so that we may prepare for a proper cross_examination. Essentially, the information will be released eventually, and there is no reason why it cannot be released prior to the hearing. To allow otherwise will amount to a "trial by ambush" of the various issues in the appeal.
For the same reasons, it is impossible for our client to respond to the request for satisfaction of the alleged overpayment.
In the instant case, the appellant has had disclosure of most of the evidence held by the institution. He has not, however, had disclosure of the names of some of the informants [and the complainant] who have refused to consent to disclosure of their personal information. This information may be relevant in the context of the fair determination of the requester's rights at the hearing before the Social Assistance Review Board, from the point of view of testing the evidence to be led by the institution and establishing the credibility of the sources of information.
This consideration is relevant in view of the factor enumerated under subsection 21(2)(d) which states 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,
(d) the personal information is relevant to a fair determination of rights affecting the person who made the request;
The Appeals Officer has been informed by a member of the Social Assistance Review Board that in addition to the disclosure already provided to the appellant, the procedure of the Board permits him to subpoena the entire record at the commencement of the hearing, and to request an adjournment to consider the
record. He may also question the Eligibility Review Officer, should the latter appear at the hearing before the the Board, as to the identity of the informants, and the Eligibility Review Officer must answer.
Had these disclosure mechanisms not been present for the benefit of the appellant and requester, I might have found that a fair determination of the requester's rights demanded the disclosure of the non_consenting informant's personal information contained in the Eligibility Review Officer's Report. However, in balancing this informant's right to personal privacy with the right of the requester to access to the personal information, I find that it would be an unjustified invasion of this informant's personal privacy to disclose her personal information, and I uphold the head's decision not to release it.
I also find that disclosure of the names and addresses of the persons which are contained in the handwritten notes and who were not involved in the investigation, would be an unjustified invasion of their personal privacy.
I find that the disclosure of the names and information provided by the two informants who have consented to the release of this information would not be an unjustified invasion of their personal privacy.
I find that the information respecting the requester's husband has already been disclosed to her, and further disclosure of the same information would not, in my view, constitute an unjustified invasion of his personal privacy.
ISSUE D: Whether the exemption provided by subsection 14(1)(d) of the Act applies to any of the records, or to any parts thereof.
Subsection 14(1)(d) reads as follows:
14.__(1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,
(c) disclose the identity of a confidential source of information in respect of a law enforcement matter, or disclose information furnished only by the confidential source.
To qualify for exemption under this subsection, the records must disclose the identity of a confidential source or disclose information furnished only by that confidential source in a law enforcement matter. "Law enforcement" is defined in subsection 2(1) of the Act as follows:
"law enforcement" means,
(a) policing,
(b) investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and
(c) the conduct of proceedings referred to in clause (b);
The institution submits that:
The report prepared by the Eligibility Review Officer falls within clause (b) in that it is an investigation or inspection "that...could lead to proceedings in a court...if a penalty or sanction could be imposed in those proceedings,...".
The institution goes on to refer to the possibility of referring the case to the O.P.P. for fraud investigation, although that has not yet happened in the instant case. I am also aware that the Director may impose sanctions upon a recipient of Family Benefits, by assessing overpayments or withholding benefits, although these decisions of the Director are subject to review by the Social Assistance Review Board, a tribunal which may also impose sanctions. Accordingly, I find that the matter to which the records relate is a "law enforcement matter".
The information to which this exemption may apply is as follows:
a) the information contained in the Referral for Eligibility Review Form, supplied by the complainant who has refused to consent to disclosure of this information;
b) the names and information supplied by the two informants who have consented to disclosure;
c) the information as to the address of another unnamed informant, and the information supplied by that person to the institution.
With respect to the issue of "confidential sources", and information furnished by those sources, the institution submitted only that "clause (d) of subsection 14(1) protects both the identity of a confidential source (the informant) and information furnished only by the confidential source." The institution offered no further evidence as to the circumstances in which the information was provided to the institution by the complainant or the informants in question. I did not receive written representations from any of the informants. Accordingly, the Appeals Officer contacted the complainant and the informants identified in the record by telephone to
ascertain their wishes respecting disclosure, and their expectations of confidentiality at the time they provided the information to the Eligibility Review Officer. At this time, as I have stated above, two of the informants consented to the disclosure of their names and information to the appellant.
The complainant, whose information is contained in the Referral for Eligibility Form, was one of the affected parties contacted by the Appeals Officer. This person declined to consent to disclosure because she stated that she had no recollection of ever having given the information about the requester to the institution that is recorded on that Form. Although she was given an opportunity by the institution to review the record containing her information, she could not remember anything about the requester or her case. She stated that it was possible that she had passed along information to the institution in the course of her employment duties, but she could offer no information as to the circumstances under which she might have provided the information. I have been provided with no evidence to suggest that this information was given to the institution in confidence.
Accordingly, I find that the requirements for satisfying the exemption under subsection 14(1)(d) for the name, professional affiliation, and information provided by the complainant have not been met.
I have been provided with no evidence by the institution respecting the confidentiality of the names and information provided by the two informants who have consented to disclosure, which consent would effectively waive any confidentiality interest they may hitherto have had. I should also point out that one of these informants was identified with some particularity in all but name in the Report of the Income
Maintenance Supervisor which was disclosed to the appellant. I find that the names and information supplied by these persons does not satisfy the requirements of subsection 14(1)(d).
Another informant was not identified by name in the Report of the Eligibility Review Officer, but there are clues given as to his or her address, in the record. The substance of the information provided by this informant was disclosed to the appellant in the Report of the Income Maintenance Supervisor. I have received no information about this informant, but examination of the record leads me to believe that his or her information was provided to the institution in confidence. I find therefore, that the information which might serve to reveal the address of this particular informant satisfies the requirements of subsection 14(1)(d).
ISSUE E: If the answer to Issue D is in the affirmative, whether the exemption provided by subsection 49(a) of the Act applies in the circumstances of this appeal.
As I have stated above, the right of a requester to access to his or her personal information is not absolute. In dealing with a request for information about the requester, the head must make his or her decision in light of the provisions of sections 47, 48 and 49 of the Act. Section 49(a) provides another exception to the general rule that a requester has a right of access to his or her own personal information in the custody or control of an institution.
Subsection 49(a) provides as follows:
- A head may refuse to disclose to the individual to whom the information relates personal information,
(a) where section 12, 13, 14, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information;
Section 14 is one of the sections enumerated in subsection 49(a) where, if a record containing personal information about the requester satisfies the requirements for exemption, the head may exercise his or her discretion to deny access. I have found in Issue D above that the information as to the address of the neighbour who was not identified in the record by name, satisfies the requirements for the exemption provided under subsection 14(1)(d).
Accordingly, I find that that information falls within that class of information contemplated by subsection 49(a), and I uphold the head's decision not to release it. As I have mentioned before, the substance of the information provided by that informant has already been disclosed to the appellant in the Report of the Income Maintenance Supervisor.
I have found that the following information does not fall within the exemption provided by subsection 14(1)(d):
a) the name, professional affiliation and information provided by the complainant who did not consent to disclosure which is contained in the Referral for Eligibility Review Form;
b) the names and information provided by the informants who have consented to disclosure of this information.
In summary, my Order is as follows:
I find that the disclosure of the name, address and information
of the informant who did not consent to disclosure, contained in the Eligibility Review Officer's Report and the disclosure of the names and addresses of the persons contained in the handwritten notes would be an unjustified invasion of the personal privacy of these individuals, and I uphold the decision of the head not to release them;
I find that the release of the information about the requester's husband would not be an unjustified invasion of his personal privacy, and I order the head to disclose this information to the appellant within twenty (20) days of the date of this Order;
I find that the disclosure of the names and information of the informants who consented to disclosure would not be an unjustified invasion of their personal privacy, nor does it satisfy the requirements for exemption under subsection 14(1)(d), and I order the disclosure of this information to the appellant within twenty (20) days of the date of the Order;
I find that the information as to the address of the unidentified neighbour satisfies the requirements of subsection 14(1)(d) and I uphold the decision of the head not to release this information;
I find that the information contained in the Referral for Eligibility Review Form does not satisfy the requirements of either subsection 49(b) or 49(a), and I order the disclosure of this record in its entirety to the appellant within twenty (20) days of the date of this Order;
For the purposes of the clarification of this Order, I order the head to disclose to the appellant:
The Report of the Eligibility Review Officer, with the following severances _ the name and address of the informant who did not consent to disclosure, and the information as to the address of the unidentified neighbour;
The Referral for Eligibility Review Form, in its entirety;
The handwritten notes, with the names and address of the persons contained therein severed.
I further order the head to notify me as to the date of such disclosure within five (5) days of the date on which disclosure is made to the appellant.
Original signed by: January 19, 1990
Sidney B. Linden Date
Commissioner