ORDER M-619

Appeal M_9400593

Metropolitan Separate School Board

[Toronto]

TABLE OF CONTENTS

Page

BACKGROUND............................................................................................................................ 1

NATURE OF THE APPEAL...................................................................................................... 2-4

DISCUSSION........................................................................................................................... 4-23

Part I - The Board's Refusal to Confirm or Deny the Existence

of Records Relating to Questions (a)-(l) of the Request Under

Section 14(5) of the Act ................................................................................................ 4-20

Preliminary Matters...................................................................................................... 7-10

(1)....... The Form of the Request........................................................................................... 7

(2)....... The Raising of Additional Discretionary Exemptions Late in the............................. 8-10

Appeals Process

Invasion of Privacy...................................................................................................... 10-20

(1)....... Privacy Considerations....................................................................................... 11-16

The Presumptions............................................................................................... 11-12

(i)........ Section 14(3)(d).......................................................................................... 11

(ii)....... Section 14(3)(g)..................................................................................... 11-12

(iii)...... Section 14(3)(b).......................................................................................... 12

The Factors in Section 14(2).............................................................................. 12-16

(i)........ Section 14(2)(f) - Highly Sensitive Personal Information.......................... 12-13

(ii)....... Section 14(2)(h) - Personal Information Supplied in Confidence................... 13

(iii)...... Sections 14(2)(e) and (i) - Unfair Exposure to........................................ 13-15

Harm and Reputation

(iv)...... Section 14(2)(g) - Information Unlikely to be.......................................... 15-16

Accurate or Reliable

(2)....... Disclosure Considerations.................................................................................. 16-18

The Factors in Section 14(2).............................................................................. 16-17

"All the Relevant Circumstances"........................................................................ 17-18

(3)....... Balancing the Privacy and Disclosure Considerations........................................... 18-19

Page

(4) Public Interest in Disclosure................................................................................................. 20

Part II - Records Identified by the Board as Responsive to ................................... 20-21

Parts (m)-(o) of the Request

Invasion of Privacy...................................................................................................... 20-21

Part III - Closed Meetings......................................................................................... 21-23

CONCLUSION............................................................................................................................. 23

ORDER................................................................................................................................... 23-25

APPENDIX A - INDEX OF RECORDS AT ISSUE................................................................. 1-3

BACKGROUND:

On June 3, 1993, the parents of a child enrolled at a school operated by the Metropolitan Separate School Board (the Board) advised the principal that their child alleged that he/she had been abused by a teacher. The principal contacted the Superintendent of Education for the area (the superintendent) who advised him to contact the Catholic Children's Aid Society (the CCAS) and the police to investigate the matter. The teacher was suspended until the conclusion of the investigation. The suspension was lifted on June 22, 1993.

According to information provided by the Board, the investigation reports of the police and the CCAS were inconsistent. The CCAS worker's verbal report stated that there were not sufficient grounds to press charges and that the teacher was considered innocent. The written report stated that "... there is not enough evidence to indicate that any abuse, either verbal, emotional or physical has occurred". On the other hand, on July 7, 1993, the police advised the superintendent that, while there was some evidence of abuse, there were no charges laid as the parents did not want to put their child through the process.

On November 8, 1993, the Human Resources Committee of the Board of Trustees held a Private/Private meeting to receive the written presentations and communications of parents who apparently did not feel that the matter had been satisfactorily resolved. The delegations expressed concerns with respect to a number of incidents that had occurred at the school over the past three years and the manner in which the concerns were addressed.

In particular, a petition signed by nine parents sought the removal of the principal, superintendent, teacher and the Board trustee who had been involved in the matter until an "independent" investigation into the issues raised in their presentations had been completed. The Human Resources Committee requested that a report be prepared to address the issues raised by the delegations.

The report was tabled at a Private/Private session of the General Committee of the Board of Trustees held on November 15, 1993. The Board of Trustees adopted the report and passed a motion to affirm the actions of the superintendent and the principal and to advise the community of this decision. The Board of Trustees also requested that the staff bring back Board guidelines for the identification and reporting of child abuse. On December 10, 1993, the Director of Education sent a letter to all parents and staff at the school outlining the decision of the General Committee of the Board.

It is apparent that this was not the end of the matter. The agenda for the December 13 regular meeting of the Private/Private session of the General Committee included eight delegations from parents who were still not satisfied with the Board's response to their concerns. An article in a Toronto newspaper dated January 12, 1994 indicates that eight families had retained counsel to investigate their claims of alleged abuse and that the parents had requested the police to review their claims. It appears that the CCAS was also asked to reinvestigate at that time.

NATURE OF THE APPEAL:

A newspaper reporter, who indicates that she was approached by one of the parents involved in this matter, made a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) to the Board for access to information relating to the allegations made against the teacher. The request was in the form of the following questions:

(a) How many parents complained to the principal regarding this particular teacher?

(b) Did the principal tell any of these parents that they were the only ones who had such concerns?

(c) Did the principal contact the Catholic Children's Aid Society and the police about any of these parents at any time before or after receiving these complaints?

(d) If so, what was the substance of the principal's concerns (no parents names need be mentioned here; parents can be identified as A, B, C and so on)?

(e) What formal steps were taken by the principal, the superintendent, the trustee(s) for the ward, or any other department/employee/official of the MSSB to address the concerns of these parents?

(f) Has the MSSB received complaints about this particular teacher in the past or since?

(g) If so, were these complaints of a similar nature?

(h) Were they investigated?

(i) If so, by whom?

(j) What did the investigation consist of?

(k) What conclusions were reached?

(l) What action was taken as a result?

(m) How long has the teacher been employed by MSSB?

(n) How many different schools has [the teacher] taught at?

(o) Please supply the dates when [the teacher] began and when [the teacher] left each school.

In its decision letter dated April 13, 1994, the Board denied access to the information set out in parts (m) through (o) of the request on the basis that it constituted the employment history of the teacher under section 14(3)(d) of the Act. The records which the Board has identified as responsive to parts (m) - (o) consist of the teacher's employment contract and teaching record.

In the same letter, the Board refused to confirm or deny the existence of any other responsive records pursuant to section 14(5) of the Act. The Board indicated that, if records responsive to parts (a) through (l) of the request did exist, they would be exempt from disclosure pursuant to sections 14 (personal privacy) and 12 (solicitor-client privilege) of the Act. The Board subsequently claimed that, as many of the records related to submissions considered by the Board's General Committee in Private/Private session or the Board's Human Resources Committee in Private/Private session, the closed meeting exemption in section 6(1)(b) of the Act applied.

A Notice of Inquiry was sent to the parties to the appeal, namely the Board, the reporter and the teacher. Representations were received from all of the parties. In her submissions, the reporter claimed that there exists a public interest in the disclosure of the requested documentation, thus raising the possible application of section 16 of the Act. The Board also confirmed that it is no longer relying on the application of section 12.

Upon receipt of the representations, the Commissioner's office determined that three other individuals, the principal, the trustee and the superintendent, should be contacted. Accordingly, a Notice of Inquiry was sent to these individuals. Representations were received from the principal and the superintendent.

Due to the nature of the Board's decision, I will divide this Order into three parts. The first part will deal with questions (a) through (l) (as set out in the reporter's request) for which the Board has refused to confirm or deny the existence of any responsive records under section 14(5) of the Act.

The Board's decision to rely on this provision has complicated the processing of this file. Because of the nature of this exemption, it has not been possible to pursue a mediated settlement of this appeal. In addition, pending the analysis of this exemption, the Commissioner's office was unable to notify any of the parents who authored many of the records at issue in this appeal. Had such prior notification occurred, many of the responsive records might have been disclosed.

Because of the complexity of this analysis, I believe that it would be useful to set out a summary of the issues I have considered and the findings I have made.

Where an institution has claimed that a number of different exemptions apply to a particular record, the Commissioner's office will typically first consider the one which, in the opinion of the decision maker, supports an institution's claim for denying access to a record. It is then unnecessary to proceed to consider the remainder of the exemptions.

However, when, as in this case, an institution refuses to confirm or deny the existence of records, the first question which must be considered is whether the Board properly exercised its discretion under section 14(5) of the Act in refusing to confirm or deny the existence of responsive records. Only if a finding is made that section 14(5) does not apply, are the other exemptions considered.

Because of the wording of section 14(5), the answer to this question is based on the conclusions reached on the application of section 14 generally to the records, considering first whether the records contain any personal information. That is, in undertaking the section 14(5) analysis, I must necessarily determine if disclosure of the information would be an unjustified invasion of personal privacy under section 14(1) of the Act.

For the reasons outlined in this section or elsewhere, I have concluded that the Board did not properly exercise its discretion in claiming the application of section 14(5) of the Act. I have found that disclosure of some of the personal information of the teacher, superintendent, principal and trustee would not constitute an unjustified invasion of the personal privacy of these individuals. I have also found that the mere acknowledgement by the Board of the existence of records would not constitute an unjustified invasion of the personal privacy of the parents, children and other individuals whose personal information is contained in the records. Thus, section 14(5) cannot be applied to this information either. In the result, I have confirmed the existence of the records identified by the Board.

The second part of the order will deal with questions (m) through (o) where the Board has indicated that specific records exist.

In Part III of the order, I consider the application of section 6(1)(b). I find that this exemption applies to certain records which I would have otherwise ordered disclosed as their contents do not qualify for exemption under section 14.

As I have indicated, however, I have considered the application of section 14 first as it is an integral part of the section 14(5) analysis. In the result, I conclude that only very limited parts of the records should be released to the appellant.

DISCUSSION:

PART I - THE REFUSAL TO CONFIRM OR DENY THE EXISTENCE OF RECORDS RELATING TO QUESTIONS (A) - (L) UNDER SECTION 14(5) OF THE ACT

As I have indicated, the first issue to be addressed in this appeal is whether the Board properly exercised its discretion under section 14(5) of the Act in refusing to confirm or deny the existence of responsive records.

In its representations, the Board indicates that it has applied section 14(5) in this case because of the very serious nature of what it characterizes to be the unsubstantiated allegations set out in the request. The Board is of the view that, if it confirms that such records exist, it will have conveyed to the reporter information which would constitute an unjustified invasion of personal privacy.

Section 14(5) of the Act states that:

A head may refuse to confirm or deny the existence of a record if disclosure of the record would constitute an unjustified invasion of personal privacy.

A requester in a section 14(5) situation is in a very different position than other requesters who have been denied access under the Act. By invoking section 14(5), the Board is denying the requester the right to know whether a record exists, even when one does not. This section provides the Board with a significant discretionary power which I feel should be exercised only in rare cases.

In Orders P-339 and P-423, issued under the Freedom of Information and Protection of Privacy Act, former Assistant Commissioner Tom Mitchinson described the circumstances in which section 21(5) of the provincial Act, the equivalent to section 14(5) of the Act, might be applied by an institution:

In my view, an institution relying on this section must do more than merely indicate that the disclosure of the records would constitute an unjustified invasion of personal privacy. An institution must provide detailed and convincing evidence that disclosure of the mere existence of the requested records would convey information to the requester, and that the disclosure of this information would constitute an unjustified invasion of personal privacy.

Stated another way, these orders have set out two basic requirements which the Board must meet to establish that it has properly exercised its discretion to refuse to confirm or deny the existence of responsive records:

(1) The Board must establish that disclosure of the records would constitute an unjustified invasion of personal privacy; and

(2) The Board must provide sufficient information and reasoning to establish that disclosure of the fact that records do or do not exist would in itself convey information to the requester which is such that its disclosure would constitute an unjustified invasion of personal privacy.

Thus, if disclosure of the records (if they exist) would not constitute an unjustified invasion of personal privacy, the first requirement has not been met and the Board would not be able to refuse to confirm or deny the existence of records under section 14(5).

The analysis of the first requirement is identical to the process I will follow in determining whether the exemption in section 14(1) applies to the records. This is the case because, in the circumstances of this appeal, once it has been established that the records contain personal information, they will be exempt from disclosure under section 14(1) unless the exception in section 14(1)(f) applies. Section 14(1)(f) indicates that personal information is not to be disclosed to individuals other than the person to whom the personal information relates except "if the disclosure does not constitute an unjustified invasion of personal privacy".

To avoid duplication, I will consider this in my discussion of section 14(1), under the heading "Invasion of Privacy", below. For reasons I outline in that section of this order, I find that disclosure of some of the contents of the records containing the personal information of the teacher, the principal, the superintendent and the trustee would not constitute an unjustified invasion of the personal privacy of these individuals. Thus the first requirement noted above with respect to the application of section 14(5) has not been met. Accordingly, I find that the Board is not entitled to rely on section 14(5) with respect to this information.

The records also contain the personal information of many parents, children and other individuals involved in these matters. In the same section of this order, "Invasion of Privacy", I find that disclosure of the personal information of these individuals contained in the records would constitute an unjustified invasion of personal privacy.

However, with respect to this information, I find that the second requirement of section 14(5) has not been met. That is, the Board has not provided sufficient information and reasoning to establish that the disclosure of the fact of the existence of the documents containing this information would not, in itself, constitute an unjustified invasion of the personal privacy of these individuals. The Board's acknowledgement of the existence of these records indicates that certain parents complained about the actions of the teacher, principal, superintendent and trustee and presented delegations to various Board meetings to express their concerns. The descriptions of these records do not identify nor reveal any personal information about the parents and the children.

In the result, I find that the Board is not entitled to rely on section 14(5) to refuse to confirm or deny the existence of any of the records responsive to the appellant's request, that is, those containing the personal information of the teacher, the principal, the trustee and the superintendent, as well as those containing the personal information of the parents and the children.

Having made this finding, and to facilitate the remaining discussion in this part of the order, I confirm that responsive records do exist. They are described in Appendix A to this order.

Prior to considering the application of section 14(1) of the Act, there are two preliminary matters which I will address.

PRELIMINARY MATTERS:

THE FORM OF THE REQUEST

The request, as set out on page 2 of this order, is in the form of questions. In its submissions, the Board indicates that, with the exception of questions (m)-(o), there are no records which are directly responsive to the questions posed. The Board notes that some of the questions are worded in such a way that it would have to generate "responses" in order to fully and clearly respond. In addition, the Board points out that some of the questions require "yes" or "no" responses.

The Board indicates that section 2 of the Act defines a record as a physical document which may take a multiplicity of forms. The Board also correctly refers to several past orders of the Commissioner's office which have found that an institution is not obliged to create a record in response to a request which is in the form of questions. The Board points out that:

... in keeping with the spirit of the legislation, the Board has attempted to identify records which are somewhat responsive in that they provide information which might infer a response or lead to a deduction which might be responsive.

The Board points to many of the difficulties it encountered in processing the request. In particular, it has expressed concerns about the status of the complaint letters provided by the parents. The Board notes that these documents are only partially responsive and contain sensitive information. Given the subject matter of the request, the Board maintains that it should not have to create a full response in reply to the reporter's questions which it characterizes as a "written interview".

I have carefully reviewed the records described in Appendix A which the Board has identified as "somewhat responsive" according to the criteria noted above. Short of creating new records, which I agree that the Board is not required to do, I find that the Board has fully complied with the spirit of the legislation by identifying the documents which would respond to the appellant's questions. This approach enhances one of the major purposes of the Act, which is to provide a right of access to information in the custody or under the control of institutions.

I am sensitive to the Board's concerns about certain information which perhaps might not directly respond to the appellant's questions. However, given my decision in this appeal, I need not address this issue further.

Accordingly, I will proceed with the analysis on the basis that the records identified by the Board are those which are responsive to the appellant's request.

THE RAISING OF ADDITIONAL DISCRETIONARY EXEMPTIONS LATE IN THE APPEALS PROCESS

On May 18, 1994, the Commissioner's office provided the Board with a Confirmation of Appeal which indicated that an appeal from the Board's decision had been received. This Confirmation also indicated that, based on a policy adopted by the Commissioner's office, the Board would have 35 days from the date of the correspondence (that is, until June 23, 1994), to raise any additional discretionary exemptions not originally claimed in its decision letter. No additional exemptions were raised during this period.

It was not until July 18, 1994, when the Board forwarded the records to the Commissioner's office that the Board indicated for the first time that it wished to claim the application of the discretionary exemption provided by section 6(1)(b) of the Act to Records 1-6.

The Board has submitted that there are three reasons why I should now consider the application of section 6(1)(b) of the Act. It points to the reorganization of its Freedom of Information Department, the "ever-changing nature of the access request" and the request by the Appeals Officer for "clarification of the request" which arrived three weeks after the June 23, 1994 deadline.

Previous orders issued by the Commissioner's office have held that the Commissioner or his delegate has the power to control the manner in which the inquiry process is undertaken. This includes the authority to set time limits for the receipt of representations and to limit the time frame during which an institution can raise new discretionary exemptions not originally cited in its decision letter.

In Order P-658, I explained why the prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeals process. I indicated that, unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it will not be possible to effectively seek a mediated settlement of the appeal under section 51 of the provincial Act (section 40 of the Act).

I also pointed out that, where a new discretionary exemption is raised after the Notice of Inquiry is issued, it will be necessary to re-notify all parties to an appeal to solicit additional representations on the applicability of the new exemption. The result is that the processing of the appeal will be further delayed. Finally, I made the point that, in many cases, the value of information which is the subject of an access request diminishes with time. In these situations, appellants are particularly prejudiced by delays arising from the late raising of new exemptions.

The objective of the policy enacted by the Commissioner's office is to provide government organizations with a window of opportunity to raise new discretionary exemptions but not at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant prejudiced. Furthermore, as I indicated in Order P-658, an institution has the opportunity to explain why or advance any "extenuating circumstances" which it believes justify the delay in raising the additional discretionary exemptions.

I will now consider whether any or all of the three reasons advanced by the Board constitute such "extenuating circumstances".

I have carefully reviewed the chronology of this file and its predecessor appeal, Appeal Number M-9400306. The reporter had clarified only one portion of her request - questions 1-17 as set out in her letter of February 28, 1994. The portion of the request at issue in this appeal, questions (a)-(o) in the February 28 letter, has remained exactly the same. The request for clarification referred to by the Board in its submissions appears to be a letter dated July 13, 1994 from the Appeals Officer to the Board's Freedom of Information and Privacy Co-ordinator. This letter refers to the clarification described above, i.e. "questions 1-17" and merely requests the Board to forward the responsive records to the Commissioner's office. There is no reference to any clarification of "questions (a)-(o)" which are currently at issue. Accordingly, I do not accept these reasons as constituting extenuating circumstances to remove this situation from the general policy.

Furthermore, while I appreciate that institutions frequently encounter difficulties in processing access requests and appeals within the timelines established by the Commissioner's office, I do not accept that, as a general rule, departmental reorganizations should result in a departure from the policy on the late raising of discretionary exemptions.

Notwithstanding the fact that I have rejected the Board's three reasons as to why I should now consider the application of section 6(1)(b) of the Act, I believe that this appeal involves some unique circumstances which require that I do so.

When, as in this case, a requester appeals an institution's decision to refuse to confirm or deny the existence of records, there can be no mediation of the issues unless the institution decides to abandon this claim and either grant access to the records or claim a substantive exemption. As I have previously indicated, this appeal could not be mediated. Thus, the fact that the Board did not claim section 6(1)(b) in a timely fashion did not impact on the ability to mediate this appeal.

Furthermore, as I have also indicated, after the receipt of the initial representations, this office determined that, in accordance with its obligations under section 41(13) of the Act, further notifications were required. This necessarily delayed the processing of the appeal and occurred after the Board had raised the application of section 6(1)(b). The reporter was subsequently advised of the Board's position and has submitted no representations on this issue.

Because of the timing difficulties posed in appeals in which institutions refuse to confirm or deny the existence of responsive records, this office has now instituted a policy which addresses the difficulties which arose in this appeal. As this approach was not in effect at the relevant time, and because I find that the policy reasons for not addressing discretionary exemptions raised late in the appeals process have no application here, I will consider the application of the closed meeting exemption raised by the Board.

INVASION OF PRIVACY

Under section 2(1) of the Act, "personal information" is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and 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.

Information about an employee does not constitute personal information where the information relates to the employee's employment responsibilities or position. Portions of the record contain such information.

Where, however, the information involves an evaluation of the employee's performance or an investigation into his or her conduct, these references are considered to be the individual's personal information. Given the nature of the matters discussed in the records at issue, I find that all the references to the teacher, principal, superintendent and trustee constitute their personal information.

In addition, I find that the records contain the personal information of other individuals, including that of several parents and students.

Once it has been determined that a record contains the personal information of an individual other than the requester, section 14(1) of the Act prohibits the disclosure of this information except in certain circumstances.

Sections 14(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of personal information would result in an unjustified invasion of personal privacy. Where one of the presumptions in section 14 (3) applies to the personal information found in a record, the only way such a presumption against disclosure can be overcome is if the personal information falls within section 14(4) or where a finding is made that section 16 of the Act applies to the personal information (Order M-170).

If none of the presumptions in section 14(3) apply, the institution must consider the application of the factors listed in section 14(2) of the Act, as well as all other relevant circumstances.

The reporter has not provided any submissions in support of disclosing the personal information of those individuals other than the teacher, superintendent, trustee and principal. Thus I find that disclosure of this information would constitute an unjustified invasion of the personal privacy of these individuals and the mandatory exemption in section 14(1) of the Act applies.

PRIVACY CONSIDERATIONS:

THE PRESUMPTIONS

Section 14(3)(d)

The Board claims that portions of Record 8, the Superintendent's Activity Log, relate to the employment or educational history of the teacher and thus fall within the presumption in section 14(3)(d) of the Act. The Board states that entries related to disciplinary actions taken and references to other schools fall within this category of personal information.

The Board has not identified which portions of the nine pages referred to in its submissions, pages 8-2, 4, 5, 7, 8, 9, 10, 19 and 20, constitute such personal information. Nor has it provided any further submissions or argument to assist me in ascertaining the entries which it suggests should be considered under section 14(3)(d).

Nonetheless, I have independently reviewed these pages and find that the personal information of the teacher contained in these pages is more appropriately analyzed under section 14(2) of the Act. Accordingly, I will address these pages in the discussion which follows.

Section 14(3)(g)

The Board also submits that portions of Record 8 consist of personal recommendations or evaluations, character references or personnel evaluations so as to satisfy the presumption in section 14(3)(g). The Board states that the entries related to the opinions of the Superintendent of Education regarding the actions or conduct of the staff members or complainants constitute this type of information.

In this regard, it refers to pages 8-10, 13, 16, 17, 18, 19, 25, 27, 30, 31 and 33. Again, the Board's submissions contain no references to the specific passages on these pages which it maintains constitutes personal information falling within the presumption.

It is clear that the views or opinions of the superintendent about other individuals would constitute the personal information of those other individuals under clause (g) of the definition of "personal information" found in section 2(1) of the Act. However, previous orders of the Commissioner's office have found that in order for the presumption in section 14(3)(g) to apply, the opinions must constitute assessments made according to measurable standards (Order P-447). This is based on the definition of the word "evaluate" (evaluation) as found in the concise Oxford Dictionary: "ascertain amount of; find numerical expression for; appraise, assess". In these circumstances, I find that any opinions of the superintendent about the individuals referred to in Record 8 are just that, opinions rather than "evaluations".

Thus, I find that the presumption set out in section 14(3)(g) does not apply to any of the portions of Record 8 referred to by the Board.

Section 14(3)(b)

The teacher states that the section 14(3)(b) presumption (the personal information was compiled and is identifiable as part of an investigation into a possible violation of law), is applicable as questions (c) and (d) make reference to contacts with the CCAS and the police regarding possible Criminal Code and/or Child and Family Services Act violations.

I disagree. There is no evidence before me to indicate that any of the records at issue were assembled for or forwarded to either agency. In fact, the description of the records as provided by the Board clearly indicates that they consist of documents sent to employees of the school or the Board or that they were created by Board employees or parents for the purpose of the Board's review of the incidents in question. Accordingly, the presumption in section 14(3)(b) does not apply.

I will now consider the application of the factors listed in section 14(2), as well as all the other relevant circumstances of this case.

THE FACTORS IN SECTION 14(2)

In its representations, the Board claims that the following factors contained in section 14(2) of the Act weigh in favour of privacy protection:

the individual to whom the information relates will be exposed unfairly to harm (section 14(2)(e));
the personal information is highly sensitive (section 14(2)(f));
the personal information is unlikely to be accurate or reliable (section 14(2)(g));

• the personal information has been supplied by the individual to whom the information relates in confidence (section 14(2)(h));

• the disclosure may unfairly damage the reputation of any person referred to in the record (section 14(2)(i)).

I will now address each of these considerations. The submissions of the teacher, principal and superintendent support the Board's position.

Section 14(2)(f) - Highly Sensitive Personal Information

The personal information contained in the records describes allegations of abuse made against the teacher. It describes the actions certain parents took in reporting these allegations to the principal, superintendent and trustee. The records describe the responses of these individuals and the manner in which the parents reacted to the way in which the Board personnel dealt with the parents' concerns. Given the nature of this information, I am satisfied that it is "highly sensitive" within the meaning of section 14(2)(f) of the Act. This applies to the personal information of the teacher, principal, superintendent and trustee. Thus section 14(2)(f) is a relevant factor favouring privacy protection with respect to this category of information.

Section 14(2)(h) - Personal Information Supplied in Confidence

The Board states that:

As stated previously, these documents were presented to the Board in confidence at a Private/Private meeting of our General Committee ... the parties involved were notified of the procedures we would follow in hearing their presentations and, indeed, at least one of the documents is marked Private/Private and several are addressed to the Committee/Board.

I do not entirely accept the Board's submissions on this point.

In order for section 14(2)(h) to apply, the personal information must have been supplied to the Board by the individual to whom it relates.

However, much of the personal information concerning the teacher, the principal, superintendent and trustee has been supplied by the parents who complained about the actions of the Board's personnel. For example, the personal information of the Board personnel contained in the letters of complaint written by the parents was supplied by the parents themselves. In these

circumstances, the privacy protection afforded by the consideration in section 14(2)(h) of the Act applies only to that personal information which was supplied by the individual to whom it relates.

Sections 14(2)(e) and 14(2)(i) - Unfair Exposure to Harm and Reputation

The applicability of the considerations in sections 14(2)(e) and (i) is dependent on whether the damage or harm envisioned by these sections would be unfair to the individual involved.

As I have previously indicated, the Board submits that the records contain unsubstantiated allegations. It argues that if the records are disclosed, the teacher, principal, trustee and the superintendent would be exposed to harm in that "...the rumours will appear to be substantiated by the documents attained from the Board". In my view, the fact that the allegations are contained in Board documents does not mean that they are to be treated as credible. It merely indicates that the allegations had been submitted to the Board and that the Board documented the measures it undertook to address the concerns.

The Board submits that :

These records consist of unsubstantiated allegations of child abuse which have been investigated by the Catholic Children's Aid Society and by the Police. Charges have not been laid against the staff member concerned [the teacher] and the CCAS, as recorded in document #11, has conducted two investigations and alternately found that there was insufficient evidence to support the accusations of abuse and that in one instance where an interview was conducted the allegation of abuse was not substantiated. Clearly then, the accusations have not been substantiated and, therefore, are "unlikely to be accurate or reliable".

The Board relates these submissions to the application of section 14(2)(i) in that it states that "The nature of the unsubstantiated allegations contained in each of the documents would clearly harm the reputations of those concerned if released". The Board makes essentially the same argument with respect to the application of section 14(2)(e). It submits that disclosure of the records would harm the reputation of the staff members and adversely affect their standing in the community.

As I read these submissions, the Board's position appears to be that the release of personal information about the teacher and staff would unfairly damage the reputations of these individuals and unfairly affect their standing in the community because the investigations concluded that the accusations had not been substantiated. With respect to Record 11 in particular, the Board claims that the knowledge that the CCAS conducted an investigation would damage the reputation of the teacher. I accept that, in determining whether an employee's reputation might be unfairly damaged by the release of such information, it is relevant to consider the outcome of an investigation which judges the conduct of that individual.

However, I also agree with the comments made by Assistant Commissioner Irwin Glasberg in Order P-634 that:

... in interpreting section 21(2)(i) [of the provincial Act, the equivalent to section 14(2)(i) of the Act], it is also necessary to reflect on the nature of the allegations raised, the type of records at issue and the position occupied by the government employee whose conduct is being questioned.

The allegations raised are of a most serious nature, that of abuse by a teacher of six year old students. Moreover, given the nature of the request, the records which are sought are those which would indicate whether the Board followed its own policies on child abuse in this particular instance. One of these policies, which is also mandated by the Child and Family Services Act, requires that individuals who are apprised of allegations of abuse report them to the CCAS. Teachers hold a position of trust in our society which, in this case, is heightened by the fact that the students were so young. Moreover, the principal, superintendent and trustee had a responsibility to ensure that the concerns of the parents and the allegations were dealt with according to the law and Board policy. I will elaborate on these points in a later section of my order.

I have carefully reviewed the records, and the submissions of the parties. In view of the nature of the allegations, and the results of the police, CCAS and Board investigations, I find that disclosure of some of the personal information contained in the records "may unfairly damage the reputations" of the teacher, the principal, the superintendent and the trustee and may "unfairly expose them to the harm of negative community comment".

In the result I find that the considerations set out sections 14(2)(e) and (i) of the Act are matters which I will consider in determining whether disclosure of the personal information of the teacher, principal, trustee and superintendent would constitute an unjustified invasion of personal privacy.

Section 14(2)(g) - Information Unlikely to be Accurate or Reliable

The Board maintains that, as the records contain unsubstantiated allegations, they should not be disclosed as they contain personal information which is unlikely to be accurate or reliable. In characterizing the allegations as "unsubstantiated", the Board has referred to the fact that no charges were laid by the police and that the CCAS found that there was insufficient evidence to support the accusations of abuse and, in one instance where an interview was conducted, the allegation of abuse was not substantiated.

However, in my view, this does not necessarily mean that the personal information is unlikely to be accurate or unreliable in terms of actually reflecting the information received by the Board in this connection. The records, themselves, indicate the reasons why the matter was not pursued any further by the CCAS and the police. With no evidence to the contrary, the allegations, as outlined in the complaint letters written or reported by the parents or children themselves, appear to represent the parents' concerns over this matter. Thus, I am not satisfied that the information contained in the records is unlikely to be an accurate or reliable reflection of the information provided by the parents as part of their complaints. Therefore, I find that section 14(2)(g) is not a relevant factor in determining whether the personal information should be disclosed.

To summarize, I make the following findings with respect to the personal information of the teacher, the principal, the superintendent and the trustee:

(1) The personal information is highly sensitive (section 14(2)(f));

(2) Some of this information was provided by these individuals to the Board in confidence (section 14(2)(h)); and

(3) Disclosure of portions of this information would expose these individuals unfairly to harm and may unfairly damage their reputations (sections 14(2)(e) and (i)).

These are relevant factors which weigh in favour of privacy protection.

DISCLOSURE CONSIDERATIONS

The Factors in Section 14(2)

As I have previously indicated, the reporter has raised the application of section 16 of the Act, public interest in disclosure. As I understand them, the reporter's submissions also raise the possible application of section 14(2)(a) of the Act in that they relate to subjecting the activities of the Board to public scrutiny.

In order for section 14(2)(a) to apply in the circumstances of an appeal, it must be established through evidence provided by the reporter, and following a review of the relevant records, that the disclosure of the personal information found in these records is desirable for the purpose of subjecting the activities of the institution to public scrutiny.

The reporter indicates that she has received information which casts some doubt on the manner in which the Board dealt with the allegations of abuse. She states that she was contacted by the parent of a child who had been in the teacher's class. The parent claimed that the child, as well as other children in the class, had been physically abused by the teacher over some months. The reporter has indicated that this parent had raised the matter with Board authorities but that the concerns were ignored and that the principal notified the CCAS which investigated the parent. The parent claimed that the principal stated that no other parent had raised such concerns but subsequently discovered that some other parents had approached the authorities and had been similarly treated. The parent had also claimed that this was not the first time such allegations had been made about this teacher and that the Board's response had been to move the teacher to new schools.

However, without access to the Board's records, the reporter states that it is impossible to know whether the parent's comments can be corroborated. She emphasizes that she is seeking information which would indicate whether the Board followed its own policies in this case.

She further argues that, while she is sympathetic to the privacy concerns at issue in this case, these should be weighed against concerns of parents whose children may be taught by an individual "... whose employment history may or may not inspire confidence". She cites

examples of incidents in which institutions have transferred personnel elsewhere thus putting other children at risk and argues that how the Board dealt with this case calls for public scrutiny of its activities.

She notes further that the Board has filed a libel suit against an individual who criticized its handling of the matter. Because of the pending litigation, the Board has refused to comment publicly on the matter.

The Board's submissions, on their face, relate to the application of section 16 of the Act, the public interest override. However, as I read them, they are also relevant to the application of section 14(2)(a). The Board makes reference to the number, nature and results of the investigations which have already dealt with this matter and contends that it is not engaged in a "cover up" but is simply trying to protect the privacy of the teacher and other individuals involved. It also submits that there "... were only a handful of complainants against the staff members" while there were many people who supported the teacher and the staff.

Young children constitute some of the most vulnerable members of our society. In my view, when parents entrust them to the care of the school system, they are entitled to have absolute confidence in the reporting structures developed and implemented by school systems to investigate any allegations of abuse by school employees. Parents, and society as a whole, are entitled to know that when such accusations are made, they are taken seriously, reported promptly to the proper authorities as required by Board policy and the Child and Family Services Act, and generally dealt with in a manner that ensures that parents and the public can trust that the system functioned properly.

Based on the information contained in some of the records, as well as that provided by the reporter, it is clear that some of the parents whose children were allegedly abused are not satisfied with the manner in which this entire matter was addressed. This includes the response of the principal, superintendent and trustees to the allegations, as well as the Board's decision with respect to the teacher whose actions had been called into question.

Having considered the submissions and evidence of the parties, I find that section 14(2)(a) of the Act is a relevant factor in this appeal favouring disclosure of some of the personal information of the teacher, principal, trustee and superintendent.

"All the Relevant Circumstances"

The preamble to section 14(2) indicates that, in deciding whether disclosure would be an unjustified invasion of personal privacy, "all relevant circumstances " should be considered.

In Order P-237, Commissioner Tom Wright identified another factor under the authority of section 21(2) of the provincial Freedom of Information and Protection of Privacy Act , the equivalent to section 14(2) of the Act. He stated as follows:

In addition to the criterion identified in section 21(2), in very unusual circumstances, disclosure of the personal information could be desirable for the purpose of ensuring public confidence in the integrity of an institution. This could be considered as an additional unlisted circumstance to be taken into consideration under subsection 21(2).

I will now consider whether this factor applies in this appeal. In my view, the topic of child abuse is an issue of considerable public interest. In this case, allegations of abuse have been made against a teacher of very young children. The Board, the CCAS and the police all conducted investigations into the allegations. The Board acknowledges that the CCAS and police reports were inconsistent. The materials provided by the Board, as well as the information relayed by the reporter, indicate that even some of the parents of the allegedly abused students, did not understand the steps that Board staff took to deal with the allegations. Moreover, the records indicate that at the time the request was made, the teacher had been transferred to and was teaching at another school.

The public has a right to know that it can confidently entrust its children to both the public and separate school systems. It has a further right to expect that, in the event that allegations are made about the propriety of the actions of teachers, Board staff will promptly report the concerns to the proper authorities and keep those who made the allegations apprised of the situation. In my view, the facts of this appeal fall within the very unusual category of circumstances described by Commissioner Wright in Order P-237. For this reason, I find that this unlisted factor, which favours disclosure, applies to the personal information to which I have applied section 14(2)(a).

BALANCING THE PRIVACY AND DISCLOSURE CONSIDERATIONS

The balancing of competing interests under section 14(2) of the Act is usually difficult. This case is particularly so.

The mandatory nature of the personal privacy exemption in section 14 of the Act is designed to further one of the primary purposes of the Act as set out in section 1(b). That is, to protect the privacy of individuals with respect to personal information about themselves held by institutions.

However, the Legislature has recognized that these privacy rights are not absolute. They are subject to the six exceptions in section 14(1), one of which, section 14(1)(f) (disclosure does not constitute an unjustified invasion of privacy) is the subject of this appeal. The Act also lists a series of factors - some favouring privacy protection and others favouring disclosure - to be

balanced in determining when and to what extent personal information may be disclosed to a requester. In addition, the Act requires that all the relevant circumstances must be taken into account when this decision is made.

I acknowledge that disclosure of the personal information of the teacher, principal, superintendent and trustee would constitute an invasion of their personal privacy. However, the decision which I must make is whether such disclosure would be unjustified.

In my view, this decision is not, as the reporter suggests, nor should it be, related to her desire to corroborate the information she has received from the parents. Nor is it a question of whether the Board acted properly and followed its own policies and the legislation.

Rather, in the words of the Williams Commission, whose report was the progenitor of freedom of information legislation in Ontario:

We do not feel, however, that the privacy protection interest should be considered as absolute. It is an important value, of course, but one which must yield on occasion to the public interest in access to government information. Although each individual might prefer to mask all information concerning himself from others, the rationale of open government provides a competing interest which, in appropriate cases, will have a higher claim. [emphasis added] (Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy/ 1980 ("Williams Commission Report"), vol. 2, p. 325).

Public scrutiny of the activities of an institution and public confidence in its integrity can only be achieved if the public is afforded the opportunity to "see for itself" what the Board did in response to the allegations that were made. To satisfy these goals, the public requires access to information related to the allegations made against the teacher and the actions taken by the teacher, principal, superintendent and trustee to respond to them.

The manner in which the Board or its staff have dealt with the allegations has never been disclosed publicly. Based on the information contained in the records and the other documents provided to this office by the Board, it is not clear that even the parents of the children who were allegedly abused were apprised of exactly how the Board addressed the situation.

The privacy interests involved in this appeal are indeed substantial. However, in my view, this is one of those cases referred to by the Williams Commission, in which the competing disclosure considerations are more substantial. Accordingly, after considering all the relevant circumstances of this appeal, and balancing the competing interests of disclosure and privacy protection, I find that the interests in subjecting the Board to public scrutiny and ensuring public

confidence in the Board outweigh the privacy interests of the teacher, the principal, the superintendent and the trustee. Thus, I find that release of some of the personal information of these individuals would not constitute an unjustified invasion of personal privacy.

However, consistent with the approach taken in previous orders, I have decided that an appropriate level of public scrutiny can be achieved without disclosing the names or other identifying information of these individuals. In addition, the records contain certain highly sensitive personal information about the teacher, the disclosure of which, I believe, is not necessary to ensure public scrutiny of the Board and to ensure public confidence in its actions.

PUBLIC INTEREST IN DISCLOSURE

The reporter submits that there exists a compelling public interest in the disclosure of the information related to the teacher, principal, trustee and superintendent under section 16 of the Act.

There are two requirements contained in section 16 which must be satisfied in order to invoke the application of the so-called "public interest override": there must be a compelling public interest in disclosure; and this compelling public interest must clearly outweigh the purpose of the exemption.

As previously discussed, many of the arguments of the Board and the reporter addressing the application of section 16 are also related to the application of section 14(2)(a).

The only information which I have found to be exempt under section 14(1) of the Act is the names or other identifying information of the teacher, principal, superintendent and trustee, the personal information of the parents and children, and certain highly sensitive information about the teacher which I have described in the previous section of this order. In my view, given the

amount of disclosure in this case, there exists no compelling public interest which clearly outweighs the purpose of the section 14(1) exemption with respect to this limited personal information.

PART II - RECORDS IDENTIFIED BY THE BOARD AS BEING RESPONSIVE TO PARTS M-O

INVASION OF PRIVACY

I have set out the definition of "personal privacy" in PART I of this order. The records which the Board has identified as responsive to questions (m) - (o) contain the teacher's employment contract and teaching record. Having reviewed these documents, I find that they contain the personal information of the teacher.

Once it is determined that a record contains personal information, section 14(1) of the Act prohibits the disclosure of this information except in certain circumstances. As set out in PART I above, sections 14(2), (3) and (4) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of personal privacy.

The record identified by the Board as responsive to questions (m) - (o), Record 10, contains listings of university courses taken by the teacher, as well as listings of the schools at which this individual has taught, including the dates of employment and salary. The Board has claimed section 14(3)(d) in denying the appellant access to this document. I find that this record clearly relates to the employment and educational history of the teacher in question. Accordingly, the presumption in section 14(3)(d) of the Act applies.

As set out above, the only way a section 14(3) presumption can be overcome is if the personal information falls under section 14(4) of the Act or when a finding is made under section 16 of the Act that a compelling public interest exists in the disclosure of the record which clearly outweighs the purpose of the section 14 exemption.

I have considered section 14(4) and find that none of the personal information contained in the record falls within the ambit of this provision.

The appellant's arguments in relation to section 16 of the Act are set out in PART I above. Having reviewed Record 10, I find that there does not exist a compelling public interest in disclosure which would outweigh the teacher's right to privacy with respect to this information.

As the presumption described in section 14(3)(d) has not been rebutted, the disclosure of the personal information contained in Record 10 would constitute an invasion of personal privacy of the teacher. Therefore , I find that this document is properly exempt from disclosure.

PART III - CLOSED MEETINGS - SECTION 6(1)(B)

The Board has also claimed that the closed meeting exemption applies to exempt Records 1-6 from disclosure. It submits that these records all relate to submissions considered by the Board's General Committee in Private/Private session or the Board's Human Resources Committee session.

In order for the Board to apply section 6(1)(b) of the Act, it must establish that:

a meeting of a board or one of its committees took place; and
a statute authorizes the holding of this meeting in the absence of the public; and
disclosure of the record at issue would reveal the actual substance of the deliberations of this meeting.

The Board has provided a copy of the minutes of the General Committee meeting held on November 15, 1993. It is clear that a meeting of the General Committee of the Board took place on that date. On this basis, the first part of the section 6(1)(b) test has been satisfied.

It is also clear from the minutes that the meeting resolved into private session, in the absence of the public, to deal with the matters addressed in Records 1-6.

The Board submits that section 207(b) of the Education Act the authority to hold this meeting behind closed doors. This provision states, in part, that:

A meeting of a committee of a board, including a committee of the whole board, may be closed to the public when the subject matter under consideration involves the discussion of intimate, personal of financial information in respect of a member of the board or committee, an employee or prospective employee of the board or a pupil or his or her parent or guardian.

Based on the evidence before me, I am satisfied that the matters discussed during the private session of the meeting fall with the ambit of section 207(b) of the Education Act. Accordingly, I find that the second part of the section 6(1)(b) test has been met.

In Orders M-184 and M-196, Assistant Commissioner Glasberg defined the term "substance" as the "theme or subject of a thing" and the word "deliberations" to mean "discussions with a view to making a decision".

Having reviewed the Board's representations and the records, I find that the "theme or subject" of the Committee's private session was how the Board should address the complaints of parents of pupils at a Board school against the teacher and the principal and superintendent. I also find that the private session reviewed the major concerns expressed by the parents with a view towards determining the propriety of the actions of the teacher and the principal and superintendent in responding to the parents' concerns. On this basis, I have concluded that the disclosure of the documents submitted to the November 15, 1993 General Committee, Private/Private session would reveal the actual discussions conducted by the Board and, hence, its deliberations. The third part of the section 6(1)(b) test has, therefore, also been met. Accordingly, section 6(1)(b) applies to Records 1-6.

Section 16 of the Act, the public interest override, does not apply to the exemption contained in section 6(1)(b).

However, as I previously noted in the Background section of this order on page 1, one of the parents involved in this matter had sent a package of materials outlining the parents' concerns to several individuals. This package consists of pages 14-71 of Record 6. The representations received from the Board do not identify whether the fact that these documents have been circulated by the parent has been considered in determining whether or not to rely on the section 6(1)(b) exemption. In my view, this is a factor which the Board should consider in exercising its discretion. Now that I have confirmed the existence of the records, it would be appropriate for the Board to contact the authors of the letters to ascertain their views on disclosure.

In addition, I feel that I have not been provided with sufficient information as to the reasons why the Board exercised its discretion in favour of not disclosing any of pages 6-1 to 6-9. These pages constitute the Board's report addressing the major issues raised by the parents alleging abuse. I have provided a copy of these pages of Record 6 to the Board in which I have highlighted those portions which I have found to be exempt under section 14 of the Act in accordance with the analysis I undertook in the "Invasion of Privacy" section of this order. I would request that the Board provide me with supplementary representations to indicate (1) the basis upon which it chose to exercise its discretion to withhold the non-highlighted portions of these pages and (2) whether it wishes to continue to rely on section 6(1)(b) with respect to these portions of the record.

CONCLUSION:

To summarize, although I have found that disclosure of some of the personal information of the teacher, principal, superintendent and trustee contained in Records 1-5 and pages 10-13 of Record 6, would not constitute an unjustified invasion of their personal privacy, these documents are exempt in their entirety pursuant to the closed meeting exemption in section 6(1)(b) of the Act.

In the result only portions of Records 8, 11 and 12 and portions of pages 7_3 to 7_8 and 9_26 to 9_30 should be disclosed by the Board at this time. I have highlighted in yellow the portions which should not be disclosed on the copies of these records which are being sent to the Board’s Freedom of Information and Privacy Co_ordinator with a copy of this order.

Records 8 and 12 contain the names of and references to a number of individuals in addition to the teacher, the affected persons, the parents and the children. In some cases, it is obvious that the references are made to these people in their professional capacity or that their names appear in the context of their employment responsibilities. In other instances, I cannot determine if such information constitutes the personal information of these individuals. I have highlighted all of this information in blue on the copies of Records 8 and 12.

Prior to disclosing the non-highlighted portions of these records to the appellant, the Board should review the passages highlighted in blue to determine in what capacity these individuals were referenced in the records. The Board should disclose only the names of and references to individuals functioning in their professional or employment capacity.

I also require the Board to provide me with additional representations on the exercise of discretion in declining to disclose the non-highlighted portions of pages 6-1 to 6-9 and notify the authors of Records 6-14 to 6-71 prior to providing me with submissions on the exercise of discretion under section 6(1)(b) with respect to these documents.

ORDER:

I do not uphold the decision of the Board to refuse to confirm or deny the existence of Records 1-9, 11 and 12.
I uphold the decision of the Board to deny access to Records 1-5, 10 and pages 6-10 to 6-13 in their entirety and the portions of Records 6-1 to 6-9, 7, 8, 9, 11 and 12 highlighted in yellow on the copies of these documents which are being sent to the Board's Freedom of Information and Privacy Co-ordinator with a copy of this order.
I order the Board to review the blue highlighted portions of Records 8 and 12 to determine what information does not constitute the personal information of the individuals referred to in those passages.
I order the Board to disclose:

(a) the portions of Records 8, 11 and 12 and the portions of pages 7_3 to 7_8 and 9_26 to 9_30 which are not highlighted in yellow on the copy of the records which are being sent to the Board’s Freedom of information and Privacy Co_ordinator with a copy of this order; and

(b) the blue highlighted parts of Records 8 and 12 which the Board determines do not constitute personal information.

within thirty-five (35) days after the date of this order but not earlier than the thirtieth (30th) day after the date of this order.

I order the Board to provide me with additional submissions on the exercise

of discretion in refusing to disclose the non-highlighted portions of pages 6-1 to 6-9

within thirty (30) days after the date of this order.

I order the Board to notify the authors of pages 6-14 to 6-71 within thirty (30) days after the date of this order and, based on their responses, to provide me with additional submissions on the exercise of discretion in refusing to disclose these pages within sixty (60) days after the date of this order. The Board's representations should include reference to the fact that these letters have been sent to several individuals in the community at large.
In this order, I have confirmed the existence of records responsive to questions (a)-(l) of the appellant's request. I have released this order to the Board, the teacher, the principal, the superintendent and trustee in advance of the appellant in order to provide the Board and/or any of these individuals with an opportunity to review this order and determine whether to apply for judicial review with respect to the issue of the existence of the records.
If I have not been served with a Notice of Application for Judicial Review with respect to the issue of the existence of the records within fifteen (15) days of the date of this order, I will release this order to the appellant within five (5) days following the expiration of the 15-day period.
In accordance with the requirements of section 43(4) of the Act, I will give the reporter notice of the issuance of this order by a separate letter, concurrent with the issuance of the order to the Board, the teacher, principal, superintendent and trustee.
In order to verify compliance with this order, I reserve the right to require the Board to provide me with a copy of the records which are disclosed to the reporter pursuant to Provision 3.

Original signed by: October 18, 1995

Anita Fineberg

Inquiry Officer

APPENDIX A

INDEX OF RECORDS AT ISSUE

Appeal Number M-9400593

RECORD

NUMBER(S)

DESCRIPTION OF RECORDS WITHHELD

IN WHOLE OR IN PART

EXEMPTION(S) OR OTHER SECTION(S) CLAIMED

DECISION

ON RECORD

1 (pages 1-1 to 1-7)