ORDER 196
Appeal 890351
Ministry of Government Services
O R D E R
INTRODUCTION:
The requester in this appeal was an unsuccessful candidate for the position of Senior Policy Advisor, Justice Unit, Ontario Women's Directorate. On December 28, 1988, her solicitor wrote to the Ministry of Government Services (the "institution") under the Freedom of Information and Protection of Privacy Act, 1987, as amended (the "Act"), requesting access to:
...documentation from the hiring process to which she is entitled under Freedom of Information, specifically: the list of questions asked in the interview, the score sheets relating to her interview (of all four panel members), her score, and the score of the successful candidate.
On January 17, 1989, the institution's Freedom of Information and Privacy Co_ordinator (the "Co_ordinator") wrote to the requester providing access to the list of interview questions, the score sheet relating to the requester's interview, and her own score. Access to the interview schedule was given with the names of other candidates severed pursuant to subsection 21(2)(f) of the Act. Access was denied to the score sheets of the other candidates in the competition, including the score of the successful candidate under subsections 21(3)(d) and (g) of the Act.
On February 21, 1989, the requester's solicitor wrote to the Co_ordinator asking for access to additional information relating to the competition in question. The Co-ordinator responded on February 24, 1989 providing access to some of the records with severances pursuant to subsections 21(1) and 21(3)(d)(g) of the Act and indicated that some of the records requested did not exist on the competition file.
On March 28, 1989, the requester met with the Co_ordinator to clarify her request. In a letter to the requester dated April 4, 1989, the Co_ordinator characterized the clarification as follows:
In our meeting, you clarified your request in two categories namely; your ranking as a candidate in relation to the others and, the number of references checked for each candidate. In addition, you requested another copy of the acknowledgment letter for receipt of your resume and, any other information that may have been used which is not necessarily housed in the competition file.
The Co_ordinator advised the requester that:
...access is denied to the ranking and the number of references checked for each candidate pursuant to subsection 21(3)(g). This provision applies because the information requested relates to personal evaluations of individuals other than yourself.
On March 31, 1989, the requester appealed the decision of the head of the institution pursuant to subsection 50(1) of the Act. This subsection gives a person who has made a request for access to a record under subsection 24(1) or a request for access to personal information under subsection 48(1) a right to appeal any decision of a head under the Act to the Information and Privacy Commissioner. On January 5, 1990, the undersigned was appointed Assistant Commissioner and received a delegation of the power to conduct inquiries and make Orders under the Act.
On April 12, 1989, notice of the appeal was given to the institution and the appellant.
The Appeals Officer assigned to this case obtained and reviewed the records maintained in the competition file. As well, he interviewed each of the four panellists who participated in the job competition in question. During the course of these interviews,
the Appeals Officer learned of the existence of two additional records authored by one of the panellists. The records can be described as:
(1) a chronology of events relating to the competition process authored by one of the panel members; and
(2) a memo sent to the Assistant Deputy Minister of the Ontario Women's Directorate, by the same panel member, to which an excerpt of the aforementioned chronology was attached.
As settlement of this appeal was not possible, notice that an inquiry was being conducted to review the decision of the head was sent to the appellant and the institution. Enclosed with each notice 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.
Because the institution had not yet advised the appellant of its position with respect to the disclosure of either of the two additional records discovered by the Appeals Officer, the head was asked to consider the application of the Act to these records and to issue a decision.
On August 10, 1989, the solicitor for the panellist who authored the two additional records contacted this office to raise the issue of whether or not the institution had custody or control of these two records. As a result, the panellist was added as an affected third party to the appeal (the "third party"), and a supplementary Notice of Inquiry was sent to the appellant, the institution and the third party on August 11, 1989. The purpose of sending this Notice was to advise that the third party had raised a preliminary issue respecting the institution's custody or control of the chronology and the memorandum with attachment. Representations from all parties were requested in regard to this preliminary issue.
On August 21, 1989, the head of the institution wrote to the appellant denying access to the memorandum with attachment pursuant to subsection 21(2)(i) of the Act. In the head's view, this provision applied because the record contained personal information about individuals other than the appellant and the disclosure could unfairly damage the reputation of persons referred to in the record. The head did not make a decision regarding the chronology because she did not have a copy of the record.
Representations regarding the issue of custody or control of the two additional records were received from the institution, the appellant and the third party. Commissioner Sidney B. Linden's Interim Order 120, dated November 22, 1989, dealt solely with this issue. Commissioner Linden found that the two additional records were within the custody or under the control of the institution. As a result, he ordered the institution to obtain a copy of the full text of the chronology authored by the third party and to make a decision regarding the appellant's right of access to this record. As previously mentioned, a decision regarding the appellant's right of access to the memorandum with attachment, had already been made by the institution. Further, if access to the chronology was to be denied, Commissioner Linden ordered the institution to provide him with written representations in support of that decision.
This Order will dispose of the remaining issues arising in the
appeal. In making my Order, I have considered the written representations of the appellant, the institution and the third party.
The following records are at issue:
Marked Score Sheets:
Marked score sheets for each of the candidates interviewed for the position of "Senior Policy Advisor _ Justice Unit, Ontario Women's Directorate, Policy and Research Branch". There are four score sheets for each candidate; one completed by each of the four panellists. Access to the marked score sheets of candidates other than the appellant has been denied pursuant to subsections 21(1), 21(3)(d) and (g) of the Act.
Raw Score/Interview Ranking:
A handwritten, undated document identifying the raw score and interview ranking of four candidates by each of the four panellists. The names, raw scores, and interview ranking of the candidates other than the appellant were severed and withheld from disclosure pursuant to subsections 21(1), 21(3)(d) and (g) of the Act.
Qualifying Guide:
A "Qualifying Guide" containing the names of each candidate and an assessment of their "qualifying factors" which are listed at the top of the record. The names of the candidates other than the appellant were severed and withheld from disclosure pursuant to subsections 21(1), 21(3)(d) and (g) of the Act.
Handwritten Reference Information:
Handwritten documents authored by the chairperson of the interviewing panel containing reference checking information respecting candidates other than the appellant. Access to this information has been denied pursuant to subsection 21(1), 21(3)(g) of the Act.
Chronology:
A chronology of events authored by the third party outlining her experiences in respect of the job competition covering the dates November 9, 1988 to January 3, 1989. Access to this record was denied pursuant to subsections 49(b) and 21(2)(f)(g)(h) and (i) of the Act.
Memo and Attachment:
A three_page memorandum from the third party to the Assistant Deputy Minister of the Ontario Women's Directorate, dated December 30, 1988 with an excerpt from the above noted chronology attached. Access to this record was denied pursuant to subsection 21(1), 21(2)(i) of the Act.
The issues arising in this appeal are as follows:
A. Whether the information contained in the records qualifies as "personal information" as defined in subsection 2(1) of the Act.
B. If the answer to Issue A is in the affirmative, whether the exemption provided by subsection 49(b) of the Act applies in the circumstances of this appeal.
C. If the answer to Issue A is in the affirmative, whether the exemption provided by section 21 of the Act applies in the circumstances of this appeal.
D. If the answer to either Issue B or C is in the affirmative, whether section 23 of the Act applies in the circumstances of this appeal.
The purposes of the Act as set out in section 1 should be noted at the outset. 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 from the right of access should be limited and specific. Subsection 1(b) sets out the counter- balancing privacy protection purpose of the Act. This 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 a record, or part of a record, falls within one of the specified exemptions lies upon the head.
DISCUSSION:
ISSUE A: Whether the information contained in the records qualifies as "personal information" as defined in 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 exemptions claimed by the institution apply, 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;
(i) In my view, only the chronology and the memorandum with attachment, contain personal information about the appellant and other individuals. The portions of the qualifying guide, raw scores/interview ranking, marked score sheets and handwritten reference information at issue in this appeal, do not contain personal information about the appellant and are therefore, the personal information of the other candidates only.
Subsection 47(1) of the Act gives an individual a general right of access to personal information about them in the custody or under the control of an institution. However, this right of access under subsection 47(1) is not absolute. Subsection 49(b) provides an exception to this general right of access to personal information by the person to whom it relates, where the disclosure would constitute an unjustified invasion of another individual's personal privacy.
I will now consider whether subsection 49(b) and sections 21 and 23 of the Act apply in the circumstances of this appeal.
ISSUE B: If the answer to Issue A is in the affirmative, whether the exemption provided by subsection 49(b) of the Act applies in the circumstances of this appeal.
Having found under Issue A that two records contain personal information about the appellant as well as other identifiable individuals, I will address the application of the exemption provided by subsection 49(b) of the Act. Although the head has cited section 21 as the basis for exempting all of the records at issue in this appeal, the head is taken to have intended on exempting the chronology and the memorandum with attachment from disclosure pursuant to subsection 49(b) of the Act.
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 her own personal information against another
individuals' right to the protection of their privacy. If the head determines that release of the information would constitute an unjustified invasion of another individual's personal privacy, then subsection 49(b) gives the head the discretion to deny access to the personal information of the requester.
Subsection 21(2) of the Act provides guidance in determining if disclosure of personal information would constitute an unjustified invasion of personal privacy. Subsection 21(3) of the Act identifies types of personal information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy.
I will consider subsection 49(b) of the Act as it relates to each individual record.
The Chronology
As noted above, this record was authored by the third party. It constitutes a chronology of events between November 9, 1988 to January 3, 1989 and outlines her concerns respecting the job competition in question. The chronology was originally recorded on a computer disc maintained by the third party and was entitled "Documentation Re: Competition WD_19/88" upon the creation of a hard copy.
The institution referred to the chronology in its representations. I have noted the relevant provision of the Act in the following excerpts from the institution's representations:
...all the information it contains is so inextricably intertwined that no person could reasonably be expected to be able to distinguish exempt and non_exempt information in it. ...Any information which is about the appellant in this document is the opinion of the author which may or may not be accurate or reliable. In addition, the documents contain supposed statements and comments attributed to other persons which amounts to hearsay and could unfairly damage the reputations of those who are mentioned... The head has
determined that, on balance, 21(2)(i) outweighs any rights of the appellant under 21(2)(d) of the Act. [subsection 21(2)(i)]
As the appellant is sceptical on the selection process conducted for this job competition, it is the [Head's] view that further disclosure in this instance would not aid in reducing the scepticism. The question of the appellant being treated justly in the job competition is separate from the question concerning release of personal information under the Act. [subsection 21(2)(d)]
...the individuals to whom the information relates may be exposed unfairly [to pecuniary or other harm] as some of the statements could be considered defamatory. [subsection 21(2)(e)]
...the "chronology" contains information that is sensitive and the Head believes the author of the document to be embarrassed that the Head and others have access to the record and its contents. [subsection 21(2)(f)]
It is the position of the head that the document represents a biased view from the author's own perspective and certainly does not represent the opinion of management regarding the job competition. [Subsection 21(2)(g)] was considered by the Head and it was felt that it would be impossible to sever the inaccurate from the accurate. In addition, consent was not sought from the individuals to whom the document relates as they would have to view the document in order to give an informed consent. [subsection 21(2)(g)]
...the author of the "chronology" did not envisage that her innermost thoughts would become a matter of public record. ...she noted that it was "confidential" and "not to be shared to (sic) anyone without my consent". [subsection 21(2)(h)]
The document contains many references to what individuals supposedly said and even thought which, taken out of context are very misleading. Further, the individuals who are the source of the information had no idea they were being documented and expressed their thoughts in an unrestrained manner some of which could be described of as "in the heat of the moment". It is submitted that the disclosure of this type of statement would unfairly damage reputations and that more harm would be done by disclosure of the statements than the benefit gained by disclosure. [subsection 21(2)(i)]
...the "chronology" makes reference to employment/education qualifications of some of the candidates. [subsection 21(3)(d)]
The appellant, on the other hand, submits that disclosure of the chronology is desirable for the purpose of subjecting the activities of the Government of Ontario and its agencies to public scrutiny (subsection 21(2)(a) of the Act). Further, the appellant provided arguments running counter to the application of subsections 21(2)(f), (g), (h) and (i) of the Act. The appellant also takes exception to the institution's decision not to disclose the personal information of individuals other than herself to those other individuals for the purpose of seeking their consent.
I have carefully considered the representations made in support of the appellant's right of access to her own personal information, as well as the representations made with respect to the protection of the personal privacy of others mentioned in the chronology. On balance, I find that disclosure of the chronology would constitute an unjustified invasion of the other individuals' personal privacy and therefore, this record qualifies for exemption under subsection 49(b) of the Act.
Although I have found that subsection 49(b) applies, I have also reviewed this record with a view to determine whether it might reasonably be severed pursuant to subsection 10(2) of the Act.
Subsection 10(2) of the Act states that:
Where an institution receives a request for access to a record that contains information that falls within one of the exemptions under sections 12 to 22, the head shall disclose as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemptions.
I find that the personal information of the appellant is interwoven with that of other individuals' to the point that it cannot reasonably be severed.
Memo and Attachment
This record consists of a three_page memorandum from the third party to the Assistant Deputy Minister of the Ontario Women's Directorate, dated December 30, 1988. A two and one_half page excerpt from the above_noted chronology is attached to the memorandum. The memorandum contains the reference "Competition No. WD_19/88 Senior Policy Advisor, Justice" and outlines some of the third party's specific concerns relating to the job competition.
From its representations, it appears that the institution is relying on those statements noted above with respect to the chronology, to support its position of denying access to this record. The representations, however, all relate to the excerpt from the chronology rather than to the memorandum itself.
For the same reasons noted with respect to the chronology, I find that disclosure of the excerpt of the chronology attached to the memorandum would constitute an unjustified invasion of other individuals' personal privacy and therefore, it qualifies for exemption under subsection 49(b) of the Act.
As for the memorandum itself, I am satisfied that its disclosure would not constitute an unjustified invasion of other individuals' personal privacy and therefore, it does not qualify for exemption under subsection 49(b) of the Act.
ISSUE C: If the answer to Issue A is in the affirmative, whether the exemption provided by section 21 of the Act applies in the circumstances of this appeal.
Under Issue A, I found that four records which are at issue in this appeal contain personal information about individuals other than the appellant. Once it has been determined that a record contains personal information, subsection 21(1) of the Act prohibits the disclosure of this personal information to any other person than
the individual to whom it relates, except in certain circumstances. One such circumstance is contained in subsection 21(1)(f) of the Act which reads as follows:
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.
Guidance is provided in subsections 21(2) and (3) of the Act with respect to the determination of whether disclosure of personal information would constitute an unjustified invasion of personal privacy.
Subsection 21(3) of the Act sets out a list of the types of personal information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy.
I will now consider the application of section 21 to each of the four records.
Qualifying Guide
The "Qualifying Guide" contains the name of each candidate for the position in question. I have been advised that a person employed by the Human Resources Branch of the institution reviewed the applications for the position with a view to assessing each candidate in terms of the "Qualifying Factors" which are listed at the top of page one of this two_page record. The "Qualifying Guide" indicates whether the assessor considered the candidate to be qualified for the position, as denoted by the letters "Y" for yes, "N" for no and in two instances, "M" for marginal. The names of the candidates other than the appellant have been severed and withheld from disclosure.
The institution has cited subsections 21(1) and 21(3)(d) and (g) of the Act as the basis for denying access to the names of the candidates other than the appellant.
The relevant provisions of subsections 21(1) and (3) read as follows:
(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.
(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,
(d) relates to employment or educational history;
(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or
The appellant has already been provided with the entire record, subject to the severing of names of the other candidates. She is aware, therefore, of the number of other candidates who were considered by the assessor to be qualified for the position, but not the candidates' names.
Having reviewed the record, I find that disclosure of the names severed from the record, in conjunction with the information already disclosed to the appellant would be a presumed unjustified
invasion of those individuals' personal privacy pursuant to subsection 21(3)(g) of the Act.
Commissioner Linden stated in Order 20 (Appeal Number 880075), dated October 7, 1988, that "It could be that in an unusual case, a combination of the circumstances set out in subsection 21(2) might be so compelling as to outweigh a presumption under subsection 21(3). However, in my view such a case would be extremely unusual". I agree with Commissioner Linden's view and adopt it in this appeal. Although the appellant has argued that subsections 21(2)(a) and (d) of the Act and a non_enumerated factor (that is, damage to her reputation) apply to rebut this presumption, I am not persuaded by this argument.
Therefore, I find that disclosure of the severed portions of the Qualifying Guide, in conjunction with the information already disclosed to the appellant, would constitute a presumed unjustified invasion of personal privacy.
Raw Score/Interview Ranking
This is a one page, undated, handwritten record identifying the raw score and interview ranking of four candidates by each of the four panellists. The names, raw scores, and interview ranking of candidates other than the appellant were severed from the record pursuant to subsections 21(1), 21(3)(d) and (g) of the Act.
The arguments made by the parties in relation to this record are the same as those identified in relation to the Qualifying Guide, as previously described.
Marked Score Sheets
As noted previously, each panellist completed a score sheet for each of the four candidates interviewed. While the appellant was provided with access to her own score sheets, she was not provided access to the score sheets of individuals other than herself.
The score sheets include the various questions asked of each of the candidates, a score attributed to the candidate by the panellist for each response provided and a "Comments" section wherein the panellist noted the gist of the candidate's response. At the top of each score sheet is the total score awarded as a result of the interview phase of the competition process.
Reference Information
The chairperson of the interviewing panel authored handwritten notes containing reference checking information respecting the top candidates for the position. The notations reflect the comments of persons contacted by the chairperson in their capacity as references.
Clearly, the raw score/interview ranking, marked score sheets and the reference information satisfy the requirements of subsection 21(3)(g). For the reasons noted with respect to the Qualifying Guide, I find that disclosure of the severed portions of these records would constitute a presumed unjustified invasion of personal privacy.
In my view, it is not possible to make any additional severances to these records without leading to the identification of other individuals and the disclosure of information that falls under the section 21 exemption.
ISSUE D: If the answer to either Issue B or C is in the affirmative, whether section 23 of the Act applies in the circumstances of this appeal.
As I have upheld the head's decision to exempt from disclosure parts of certain records under Issue B and C, I must now consider the possible application of section 23 of the Act, raised by the appellant in her written representations.
Section 23 of the Act reads as follows:
An exemption from disclosure of a record under sections 13, 15, 17, 18, 20 and 21 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.
I concur with Commissioner Linden's interpretation that in order for the so_called public interest override to apply "there must be a compelling public interest in disclosure and this compelling public interest must clearly outweigh the purpose of the exemption, as distinct from the value of disclosure of the particular record in question." [See Order 68 (Appeal Number 880007), dated June 28, 1989]
The Act is silent as to who bears the burden of proof in respect of section 23. However, I concur with the statement made by Commissioner Linden in a number of Orders that it is a general principle that a party asserting a right or duty has the onus of proving its case. Therefore, the burden of establishing that section 23 applies is on the appellant.
The appellant's submissions respecting the application of section 23 of the Act incorporated by reference her arguments intended to rebut the application of the presumed unjustified invasion of personal privacy under section 21. That is, the appellant submits that the criteria identified in subsections 21(2)(a) and (d) as well as a non_enumerated criterion (damage to her reputation) compel disclosure of the exempted records, or parts thereof.
Just as I was not persuaded that these factors were sufficient to rebut the presumption identified in subsection 21(3) of the Act respecting the unjustified invasion of other individuals' personal privacy, I am not persuaded by these factors as they may relate to the application of section 23. Accordingly, I find that the appellant has not discharged the onus of proof in this regard.
Before concluding, I wish to comment on several points raised by the appellant in her written representations. Specifically, the appellant has questioned the institution's use of non_recorded personal information about her in the job competition process and suggested that the institution is under an obligation to produce such non_recorded personal information in response to an access request.
Commissioner Linden had the opportunity to address a similar matter in Order 17 (Appeal No. 880078), dated October 6, 1988. On page 6 of that Order, he indicated that the definition of the terms "personal information" and "personal information bank", as defined in subsection 2(1) of the Act, include the words "recorded information about an identifiable individual ..." and "a collection of personal information that is organized and capable of being retrieved", respectively. (emphasis mine)
Commissioner Linden stated that these key definitions indicate the Legislature's intention that an individual's right of access under the Act be to information already recorded or retrievable in some physical form. As such, he expressed the view that the Legislative intent of the Act does not impose a specific duty on an institution to transcribe oral views, comments or discussions. I concur with the view expressed by Commissioner Linden and adopt it for the purposes of this appeal.
Finally, the appellant has noted in her written representations certain inconsistencies with respect to the institution's response regarding the existence or non_existence of particular records. I am of the view that all recorded information which is responsive to the appellant's request has been produced by the institution and has been considered in this Order.
ORDER:
I uphold the head's decision to withhold the chronology from disclosure in its entirety pursuant to subsection 49(b) of the Act.
I uphold the head's decision to withhold the excerpt of the chronology, attached to the memorandum, from disclosure in its entirety pursuant to subsection 49(b) of the Act.
I uphold the head's decision to exempt portions of the Qualifying Guide, raw score/interview ranking and marked score sheets pursuant to subsection 21(1) of the Act.
I uphold the head's decision to withhold the reference material from disclosure in its entirety pursuant to subsection 21(1) of the Act.
I order the head to disclose to the appellant the memorandum to the Assistant Deputy Minister of the Ontario Women's Directorate, dated December 30, 1988 in its entirety.
I also order that the institution not release the memorandum until thirty (30) days following the date of the issuance of this Order. This time delay is necessary in order to give any party to the appeal sufficient opportunity to apply for judicial review of my decision before the record is actually released. Provided notice of an application for judicial review has not
been served on the Information and Privacy Commissioner/Ontario and/or the institution within this thirty (30) day period, I order that this record be released within thirty_five (35) days of the date of this Order. The institution is further ordered to advise me in writing within five (5) days of the date on which disclosure was made.
The said notices should be forwarded to the attention of Maureen Murphy, Registrar of Appeals, Information and Privacy Commissioner/Ontario, 80 Bloor Street West, Suite 1700, Toronto, Ontario, M5S 2V1.
Original signed by: September 4, 1990
Tom A. Wright Date
Assistant Commissioner