ORDER P-1207
Appeal P-9500701
Ministry of the Attorney General
NATURE OF THE APPEAL:
The Ministry of the Attorney General (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for copies of all records in its possession concerning a named individual. The requester indicated that she was acting as the agent of the named individual and enclosed a waiver authorizing the release of the requested information to her. The requester advised the Ministry that the named individual had been investigated by the Ontario Provincial Police in 1989 but that no charges had been laid. For ease of reference, in this order I will refer to the named individual as “the appellant”.
The Ministry located numerous records responsive to the request and granted partial access to them.
The appellant filed an appeal of the denial of access. During mediation, the appellant substantially narrowed the scope of the appeal. As a result, only the following exemptions remain at issue:
third party information - section 17(1)
invasion of privacy - sections 21(1) and 49(b)
information publicly available - section 22(a)
The Ministry has applied these exemptions to the records at issue in the following manner:
(1) Page 126 of Record N - a letter dated January 31, 1989 from a named organization to the executive of an umbrella organization: sections 21(1) and 49(b)
(2) Record 109 - a videotape from the television program NOVA entitled “Cheating Scientists” - sections 17(1) and 22(a)
(3) Record 110 - a videotape of a debate involving the appellant - sections 17(1) and 22(a)
(4) Record 111 - an audiotape of the radio program Talkback, dated January 27, 1989 in which the appellant was interviewed - sections 17(1) and 22(a)
I shall refer to the records as numbers 1, 2, 3 and 4 in this order.
This office sent a Notice of Inquiry to the Ministry, the appellant, and both the author and the recipient organizations of Record 1 (the affected parties). Representations were received from the appellant and the Ministry. In its submissions, the Ministry indicated that it was no longer relying on the application of the exemption in section 17(1) of the Act.
PRELIMINARY ISSUE:
THE APPLICATION OF SECTION 17
This is a mandatory exemption which reads, in part, as follows:
A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to,
(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization;
(b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied;
(c) result in undue loss or gain to any person, group, committee or financial institution or agency;
As it is mandatory, I have independently reviewed the records to determine if this section could apply despite the Ministry’s indication that it is no longer relying on it. In my view, given the nature of Records 2, 3 and 4 as tapes of publicly broadcast television and radio programs, the element of confidentiality necessary for the application of section 17(1) is absent with respect to these records. Accordingly, I will only consider whether the Ministry properly exempted them pursuant to section 22(a) of the Act.
Based on the content of Record 1, and, in the absence of submissions from either of the affected parties, I cannot conclude that any of the harms set out in section 17(1)(a), (b) or (c) could reasonably be expected to occur upon disclosure of this document. Therefore, I will only consider whether sections 21(1) or 49(b) apply to Record 1.
INVASION OF PRIVACY - PERSONAL INFORMATION
In order for either of sections 21(1) or 49(b) of the Act to apply to Record 1, it must contain the personal information of an individual or individuals other than the appellant.
Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded information about an identifiable individual, including 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.
The record contains the personal information of the appellant in that it discusses certain legal options involving him. The issue is whether it contains the “personal information” of any other identifiable individuals.
The letter was written by an individual in her capacity as the president of the organization that sent it. It conveys the results of a resolution passed by the organization, and the manner in which the organization proposes to support the recipients of the letter in dealing with the legal matter involving the appellant. The recipients are only referred to as “The Executive” of the umbrella organization.
In my view, correspondence submitted to an institution by a representative of a group or association is not the personal information of the author of the correspondence (Order P-300). Furthermore, where, as here, any views or opinions of the author have been endorsed by the organization’s corporate Board, they are referable to the Board and the organization, as opposed to the individual author and, as such, do not constitute the personal information of the author (Order P-78).
Accordingly, I find that Record 1 does not contain the personal information of any identifiable individuals apart from the appellant. In these circumstances, sections 21(1) or 49(b) of the Act cannot apply. As the Ministry has not claimed that any other exemptions apply to the record, it should be disclosed to the appellant.
INFORMATION PUBLICLY AVAILABLE
The Ministry submits that Records 2, 3 and 4 are subject to the exemption in section 22(a) which reads as follows:
A head may refuse to disclose a record where,
the record or the information contained in the record has been published or is currently available to the public;
The Ministry’s submissions on this point state:
The Ministry submits that the audio cassette and the two video cassettes contain information which has been broadcast over the public airwaves and accordingly, should be considered as “published” information subject to the s.22 exemption. In addition, this information may be subject to copyright. The appellant should be directed to contact the broadcasters of these programs.
In its decision letter, the Ministry provided the appellant with a list of all the records it claimed were exempt pursuant to section 22(a). The decision letter described the three tapes at issue in the manner I have indicated on page 1 of this order.
It has been established in a number of previous orders that in order for this exemption to apply, the records