ORDER PO-1798
Appeal PA‑990353‑1
Liquor Control Board of Ontario
NATURE OF THE APPEAL:
The Liquor Control Board of Ontario (the LCBO) received a request from a journalist under the Freedom of Information and Protection of Privacy Act (the Act) for access to expense records of the Chair of the LCBO for the years 1996 through 1999. The requester specified that he wanted access to “all travel, accommodation, meals, entertainment and other charges, domestic and international”.
The LCBO identified 150 pages of responsive records, and disclosed 115 pages in full, 14 pages in part, and withheld access to the remaining 21 pages. The exemptions relied on by the LCBO were sections 17(1)(a), 18(1)(c), (d) and (f), and 21(1) of the Act.
The requester, now the appellant, appealed the LCBO’s decision.
During mediation, the LCBO notified 15 individuals whose names and related information appeared in the undisclosed portions of the records (the affected persons). Five affected persons consented to the disclosure of information relating to them, and the two pages containing this information were subsequently provided by the LCBO to the appellant. The remaining ten affected persons did not provide consent.
Also in mediation, the appellant narrowed the scope of his request to 12 records, all of which had been partially disclosed by the LCBO. The appellant also raised the possible application of the public interest override provided by section 23 of the Act.
I sent a Notice of Inquiry initially to the LCBO and the ten remaining affected persons. Representations were received from the LCBO and three affected persons. In its representations, the LCBO withdrew the sections 17 and 18 exemption claims. After reviewing the LCBO's representations, I gave the Chair of the LCBO an opportunity to provide representations in his personal capacity as an affected person. The Chair advised me that he did not wish to make representations. I then sent the Notice of Inquiry to the appellant, together with the non-confidential portions of the representations provided by the LCBO and the three affected persons. The appellant submitted representations in response to the Notice.
RECORDS:
The records remaining at issue consist of 12 pages, all entitled “Statement of Travelling Expenses.” The undisclosed portions of these pages consist of the names of individuals who attended lunch or dinner meetings with the Chair and, in some instances, the topics discussed at the meeting.
DISCUSSION:
PERSONAL INFORMATION
Section 2(1) of the Act reads in part:
"personal information" means recorded information about an identifiable individual, including,
(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,
(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;
The LCBO submits:
The personal information in the severed portions fall into the following categories:
Information suggesting personal purchasing habits at the LCBO;
Information related to employment matters;
Information related to legal advice;
Information related to potential financial transactions.
The LCBO’s representations elaborate on the specific type of personal information contained in each record.
Records 1, 2, 3, 7, 9, 10, 11 and 12
The LCBO submits:
Each of the individuals are customers of the LCBO, in their personal capacity. (Although some severances refer to an organization at which the affected individual is employed, that reference was not intended to describe the capacity in which such individual met with the Chair).
On occasion, the Chair of the LCBO entertains customers of the LCBO. The LCBO submits that the inclusion of a customer’s name, in the context of an expense claim submitted by the Chair of the LCBO, constitutes “personal information” of that individual, because it is reasonable to expect that this permits an inference to be drawn regarding the amounts and types of beverage alcohol purchased by such individual from the LCBO. One might reasonably conclude that an individual who is entertained by the Chair of the LCBO is a person who makes significant purchases at the LCBO. One might also reasonably draw conclusions regarding such individuals’ incomes. Therefore, it is submitted that an individual’s name, placed in the context of an entertainment expense claim submitted by the Chair of LCBO, is “personal information” of that individual because it discloses, or reasonably suggests, that individual spends a significant amount for beverage alcohol purchases.
A lawyer representing two affected persons made joint representations in response to the Notice of Inquiry. His representations support the LCBO’s position as follows:
The disclosure of this information amounts to an unjustified invasion of personal privacy. The fact that our clients dined with [a named individual] who works for the LCBO is solely their business as are the personal matters they may have discussed. Our clients advise us that at no time did they discuss matters related to LCBO business with [a named individual]. Our clients’ names are, moreover, irrelevant to LCBO business and to this inquiry.
The appellant disputes the LCBO’s position. He submits:
The LCBO, on page 3 of its representations, notes that records 1, 2, 3, 7, 9, 10, 11 and 12 refer to individuals who are customers of the LCBO. Further, they note that some of the references refer to an organization. I take this as an indication that these are individuals who have significant dealings with the LCBO. Story A, referred to earlier [in the appellant's representations], shows that [the Chair] maintained a privileged ordering list for his friends, and used LCBO resources to do so. This irregular practice relates, I believe, to some of the names in these 12 records. I do not consider this "personal information" but rather information related to how a government agency does business.
Previous orders of this Office have drawn a distinction between an individual’s personal, and professional or official government capacity. The seminal order regarding non-government employees is Order 80. In that case, the institution had invoked section 21 to exempt the names of officers of the Council on Mind Abuse (COMA) appearing on correspondence with the Ministry concerning COMA funding procedures. Former Commissioner Sidney B. Linden rejected the institution’s submission:
The institution submits that "... the name of the individual, where it is linked with another identifier, in this case the title of the individual and the organization of which that individual is either executive director or president, is personal information defined in section 2 of [the Act] ... All pieces of correspondence concern corporate, as opposed to personal, matters (i.e. funding procedures for COMA), as evidenced by the following: the letters from COMA to the institution are on official corporate letterhead and are signed by an individual in his capacity as corporate representative of COMA; and the letter of response from the institution is sent to an individual in his corporate capacity. In my view, the names of these officers should properly be categorized as "corporate information" rather than "personal information" under the circumstances.
(See also Orders P-113, P-118, P-300 and P-478).
In Reconsideration Order R-980015, Adjudicator Donald Hale stated the following in the context of an argument that letters authored by officials of various organizations constituted the personal information of those officials under the definition of “personal information”:
... the information associated with the names of the affected persons which is contained in the records at issue relates to them only in their capacities as officials with the organizations which employ them. Their involvement in the issues addressed in the correspondence with the Ministry is not personal to them but, rather, relates to their employment or association with the organizations whose interests they are representing. This information is not personal in nature but may be more appropriately described as being related to the employment or professional responsibilities of each of the individuals who are identified therein. Essentially, the information is not about these individuals and, therefore, does not qualify as their “personal information” within the meaning of the opening words of the definition.
While, on their face, the undisclosed portions of Records 2, 3 and 12 would appear to list individuals as representatives of organizations, I find that the LCBO and the two affected persons whose names appear in these records have provided me with sufficient evidence to support the position that these individuals were acting in a personal capacity while meeting with the Chair. Records 9, 10 and 11 contain the names of the same affected persons listed in Records 2 and 3, and I accept their evidence that these meetings were also held in a personal capacity. Finally, I accept the LCBO’s evidence that the undisclosed portions of Records 1 and 7 contain the names of the affected persons who were meeting with the Chair in their personal capacities as customers of the LCBO. Accordingly, I find that the undisclosed portions of Records 1, 2, 3, 7, 9, 10, 11 and 12 contain personal information of the affected persons within the meaning of section 2(1) of the Act.
Records 6 and 8
The LCBO submits that the information severed from Records 6 and 8 falls within the scope of paragraph (b) of the definition of personal information. The LCBO states:
Information relating to the employment history of a person is personal information, under clause (b) of the definition of "personal information". It is submitted that information that discloses that an individual met with the Chair of the LCBO to discuss an employment opportunity with the LCBO is "personal information" of such individual.
Neither of the affected persons identified in Records 6 and 8 submitted representations.
Based on the representations provided by the LCBO, I accept that the name of the affected person severed from Record 8 would reveal that he/she had attended a meeting with the Chair to discuss employment opportunities with the LCBO. Although I do not accept the LCBO’s position that this constitutes the affected person’s “employment history”, I nonetheless find that it is information “about” this individual in a personal capacity, and constitutes his/her personal information for the purposes of section 2(1).
As far as Record 6 is concerned, the name of the affected person who attended the lunch meeting with the Chair has already been disclosed. The subject matter of the lunch, which is the portion of this record that has not been disclosed, does not relate to this affected person in a personal capacity. Rather, it identifies two topics concerning the professional relationship between the LCBO and the office of the Minister of Privatization. I find that these topics relate to the affected person in his official government capacity and are not “about” him within the meaning of section 2(1) (see Orders P-257, P-427, P-1412 and P-1621).
Record 4
This record concerns a lunch meeting attended by the Chair and a lawyer. Unlike the other records, the LCBO claims that this record contains the Chair’s personal information, because the meeting dealt with legal issues concerning both the LCBO and the Chair in his personal capacity.
Based on the LCBO’s evidence, I find that the disclosure of the lawyer's name would reveal personal information about the Chair, specifically that he met with this lawyer to obtain personal legal advice. Accordingly, I find that the undisclosed portion of Record 4 contains the personal information of the Chair within the meaning of section 2(1) of the Act. The lawyer was clearly attending this meeting in his professional capacity, and the undisclosed portions of Record 4 do not contain his personal information.
Records 5
Record 5 concerns a lunch meeting attended by the Chair and one affected person. The severed portion of the record includes the person’s name, his/her company name and the topic discussed at the lunch.
The LCBO submits that this affected person met with the Chair “to discuss the possibility of developing business opportunities with the LCBO”, and goes on to state.
This information relates to potential financial transactions in which [the affected person] would have been involved. Accordingly, it is submitted that this information constitutes "personal information", under clause (b) of the definition of "personal information".
This affected person states that his/her company has never done business with the LCBO and that his/her connection to the Chair is “... personal in nature, extending back approximately 20 years ... When we meet, we discuss issues of public policy, as friends with a longstanding common interest.”
The appellant, on the other hand, makes the following submissions in respect to Record 5 and other records:
The LCBO raises the issue of financial transactions. This again, is not personal information. This is the business of the LCBO. The expense was approved and paid out. These individuals were meeting with the chair, the LCBO says, to discuss business opportunities with the LCBO. They were acting in a corporate capacity, not in a personal capacity. (See Order 80 and Reconsideration Order R-980015).
I accept the appellant’s position as it relates to Record 5. Unlike the lunch or dinner meetings reflected in Records 1, 2, 3, 7, 9, 10, 11 and 12, which the LCBO maintains were held with personal customers of the LCBO, Record 5 was a lunch meeting which the LCBO acknowledges was held for the purpose of discussing “possible business opportunities with the LCBO”. This position is supported by the fact that the individual is listed in the record along with his/her company name, and the topic identified in the record is consistent with the LCBO’s position that the lunch dealt with business issues. Based on the evidence provided by the LCBO, and the content of the record itself, I find that this affected person attended the lunch meeting in his/her professional capacity, and that the undisclosed portions of Record 5 are not “about” him/her in a personal sense. For these reasons, I find that Record 5 does not contain this affected person’s personal information (see Order 80 and Reconsideration Order R-980015).
In summary, I find that the undisclosed portions of Records 1, 2, 3, 7, 8, 9, 10, 11 and 12 contain personal information of the various affected persons identified in these records; that Record 4 contains the personal information of the Chair only; that Record 5 does not contain the personal information of the affected person identified in the record; and that the undisclosed portions of Record 6 do not qualify as the personal information of the government official whose name has already been disclosed to the appellant.
Although the LCBO has withdrawn the section 17 exemption claim, because this is a mandatory exemption I have also considered Records 5 and 6 in that context. Record 6 involves a government official so clearly does not qualify for exemption as third party commercial information. Record 5 was created by the LCBO, not supplied by the affected person listed in these record, and I find that it is not reasonable to conclude, particularly given the position of the LCBO that section 17 does not apply to this record, that lunch meetings of this nature were held on a confidential basis. Therefore, I find that section 17 has no application in the circumstances of this appeal.
INVASION OF PRIVACY
Where a requester seeks personal information of another individual, section 21(1) of the Act prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) through (h) of section 21(1) applies. In the circumstances, only the exception that could apply is section 21(1)(f) which reads:
A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,
if the disclosure does not constitute an unjustified invasion of personal privacy.
In this situation, sections 21(2) and (3) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of the personal privacy of the individual to whom the information relates. Section 21(2) provides some criteria for the institution to consider in making this determination. Section 21(3) lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy. Section 21(4) refers to certain types of information the disclosure of which does not constitute an unjustified invasion of personal privacy. The Divisional Court has stated that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in 21(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 1993 CanLII 3388 (ON CTGDDC), 13 O.R. (3d) 767].
A section 21(3) presumption can be overcome if the personal information at issue falls under section 21(4) of the Act or if a finding is made under section 23 of the Act that a compelling public interest exists in the disclosure of the record in which the personal information is contained which clearly outweighs the purpose of the section 21 exemption.
Section 21(3)
The LCBO’s submissions on section 21(3) consist of the following statements:
Of the presumptions that a disclosure would constitute an unjustified invasion of privacy (which are set out in sub-section 21(3)), category (d) refers to employment matters of the named individuals, and should be applied to Records 6 and 8. The LCBO further submits that category (f) applies to disclosure of personal information that is suggestive of an individual’s beverage alcohol purchases, because it is suggestive of the finances or income of the affected individuals.
Sections 21(3)(d) and (f) read:
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;
(f) describes an individual's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;
The appellant states:
Section 21(3) shows the following criteria for an ‘unjustified invasion of personal privacy’. Neither a, b, c, e, g, or h apply at all. While d and f might some how be construed to apply, I believe you will find the link to be tenuous, and unworthy of an exemption.
I have already determined that Record 6 does not contain personal information.
As far as Record 8 is concerned, previous orders have found that a person's name and professional title, without more, would not constitute “employment history" within the meaning of subsection 21(3)(d) (see, for example, Orders 170, M-32, P-216, P-235 and P-611 and Reconsideration Orders R‑980012 and R-980015). The only information severed from Record 8 is the name of the affected person who attended the lunch meeting. Applying the reasoning from these past orders, I find that the name alone, and even when combined with the name of his/her then-employer, which has already been disclosed, does not constitute the employment history of this affected person, and section 21(3)(d) does not apply.
As far as the undisclosed portions of Records 1, 2, 3, 7, 9, 10, 11 and 12 are concerned, I do not accept the LCBO’s position that disclosure of this information would constitute a presumed unjustified invasion of privacy under section 21(3)(f). These records contain no financial information of the affected persons whatsoever. In addition, any inference that could be made about the amount of liquor purchased by these individuals simply from the fact that they attended a lunch or dinner meeting with the Chair, never mind the required linkage between purchase patterns and their incomes, is tenuous at best. I find that section 21(3)(f) has no application in the circumstances of this appeal.
The LCBO’s representations on section 21(3) make no reference to Record 4, and I find that the personal information of the Chair contained in this record does not satisfy any of the requirements of a presumed unjustified invasion of privacy.
Section 21(2)
The following factors in section 21(2) have been raised by either the LCBO, the appellant or one of the affected persons:
(a) the disclosure is desirable for the purpose of subjecting the activities of the Government of Ontario and its agencies to public scrutiny;
(f) the personal information is highly sensitive;
(h) the personal information has been supplied by the individual to whom the information relates in confidence;
(i) the disclosure may unfairly damage the reputation of any person referred to in the record.
Section 21(2)(a)
The LCBO’s submissions on section 21(2)(a) are as follows:
The LCBO recognizes that the disclosure of the manner in which public funds are expended is desirable for subjecting the activities of an agency to public scrutiny. However, the disclosure of the severed portions of these Records is not necessary to subject the activities of the LCBO to public scrutiny, because the information in the unsevered portion clearly discloses the dates of the meetings in question, the places at which meetings were held and the funds expended. It is submitted that the information that has been disclosed is sufficient to allow a fair assessment of the expenditures in question.
The appellant submits:
Disclosure of the individual’s names and/or organizations will help scrutinize the activities of the LCBO. For example, previously released information revealed that [the Chair] was frequently the guest of Bacardi (the LCBO’s biggest rum supplier), which contravened LCBO policy. A new government policy has been promised to further prevent this activity. That was the result of my scrutiny. I wish to bring the same objective scrutiny to bear on the 12 records at issue here.
The appellant goes on to discuss his investigative work on issues related to the LCBO, and states:
My investigation revealed that the LCBO operates in a haphazard fashion. I interviewed over 200 people and business which do business with the LCBO. The majority made serious complaints about the manner in which the LCBO does business. Following publication of the attached story [included with the appellant’s representations], I received 250 telephone calls and e-mails from the public. Again, the majority complained about the way they do business. The public needs to know how the LCBO does business. Stories already published revealed serious problems: top officials accepting benefits from corporations the LCBO does business with; the chair operates a personal order service for his friends, etc. I believe that it is the duty of the media to scrutinize the activities of government agencies.
In Order M-1074 I found that two elements must be established for section 21(2)(a) to be a relevant factor:
(1) the activities of the institution must have been publicly called into question; and
(2) the disclosure of the personal information of the affected persons is desirable in order to subject the activities of the institution to public scrutiny. Evidence to establish both of these elements must be provided by the appellant.
In my view, the appellant has provided sufficient evidence to establish that the activities of the LCBO, and specifically the Chair, have been called into question through the media coverage generated by journalists such as himself, public debate in the Legislature, and interest expressed by members of the public. As far as the second element of section 21(2)(a) is concerned, I do not accept the LCBO’s position that the extent of disclosure provided to the appellant is sufficient to address these demands for public scrutiny. The public debate surrounding the Chair of the LCBO relates to whether or not he used his position to favour certain individuals and organizations. Lunch and dinner meetings held by the Chair are directly related to this debate and, in my view, disclosure of the information concerning individuals which appears on these claims, including the Chair in the case of Record 4, is directly related to the operation of the LCBO and is desirable in order to subject the Chair’s activities to public scrutiny.
For these reasons, I find that section 21(1)(a) is a relevant factor, which weighs strongly in favour of disclosure in the circumstances of this appeal.
There is another related but unlisted factor which I think is relevant in the circumstances of this appeal. This factor related to whether “the disclosure of the personal information could be desirable for ensuring public confidence in the integrity of the institution” (Orders 99, P-237, M-129, M-173 and M-278). I find that the appellant’s submissions on the issue of public interest speak to this unlisted factor, where he states:
Is there a public interest? Yes. As stated above, the LCBO is a crown corporation. It is an agency which much public comment is made about ... The crown corporation is the retailer and regulator of beverage alcohol in Ontario. [The Chair of the LCBO] has been a public figure for most of his career. He was Sarnia mayor, Conservative leader, and chairman for 10 years. The activities of [the Chair] are of great public interest.
The Chair is a senior public official whose actions reflect upon the operation of the LCBO. The disclosure of the Chair’s expense reports and who he entertained or met with at the expense of taxpayers is desirable for ensuring public confidence in the integrity of the LCBO. Consequently, I find that this relevant factor also weighs heavily in favour of disclosure.
Section 21(2)(f)
As far as section 21(2)(f) is concerned, the LCBO submits:
The LCBO believed that the personal information was highly sensitive to the affected individuals. The affected individuals were notified of the request, and in those cases where the individual consented, the severed portion of the record was released. Consent was not provided for the Records at issue.
For information to be considered highly sensitive, its disclosure must reasonably be expected to cause excessive personal distress to the affected persons. (Orders M‑1053, P‑1681 and PO-1736).
In Order P-256, which also involved the LCBO, I dealt with a request for access to a report created out of an investigation into the travel expense claims for a particular employee. In dealing with section 21(2)(f) in that case I stated:
In my view, the nature of the information contained in the record cannot properly be characterized as ‘highly sensitive’. It relates solely to an examination of expense claims which are routinely submitted by government employees for verification and approval.
I make the same finding in the present appeal. The affected persons met with the Chair over lunch or dinner. Neither the LCBO nor the affected persons provide any indication as to why the meetings involved highly sensitive personal issues, and the absence of consent, as identified by the LCBO, does not in and of itself imply sensitivity. In the absence of evidence to the contrary, I find that disclosure of the fact that an individual met with the Chair for a meeting would not cause excessive personal distress to any of the affected persons. The fact that certain inferences may be drawn from having a meeting with the Chair of the LCBO is not sufficient to find that disclosure of the identities of these lunch or dinner guests cause excessive personal distress. The LCBO’s representations do not deal directly with Record 4. According to the LCBO, the luncheon meeting that is the subject of Record 4 was held to discuss legal matters involving the LCBO, as well as legal issues involving the Chair personally. These personal legal issues are not described, nor are they identifiable from the record itself. I have insufficient evidence to conclude that disclosure of the remaining portions of Record 4 would cause excessive personal distress to the Chair.
For these reasons, I find that section 21(2)(f) is not a relevant factor in the circumstances of this appeal.
Section 21(2)(h)
The appellant maintains that section 21(2)(h) is not a relevant factor. He states:
The information (the name of the guest) was not supplied in confidence. If the individual did not want his name known, he or she would have asked [the Chair] not to record the name. The fact that an individual dined with [the Chair] in a public restaurant shows that their meeting (with a high profile Toronto executive, who was a former politician and is well known) was not clandestine or secretive.
The LCBO and the affected persons did not deal directly with this factor in their representations.
I accept the appellant’s position on this issue. The meetings attended by the affected persons were held in public locations, and in some instances involved other individuals whose identities have already been disclosed to the appellant. In my view, confidentiality has not been established, and section 21(2)(h) is not a relevant factor in the circumstances.
Section 21(2)(i)
The lawyer who submitted representations on behalf of two of the affected persons identified section 21(2)(i) as a relevant factor. He states:
The disclosure of our clients’ names could damage their reputation in light of the negative publicity regarding this matter to date which cannot be supported on any factual basis.
In Order P-256, referred to above, I also dealt with section 21(2)(i) as a factor. In that order I stated:
In my view, the public has a right to expect that expenditures made by employees of government institutions during the course of performing their employment-related responsibilities are made in accordance with established policies and procedures ... In submitting expense claims for reimbursement, government employees should do so on the basis that they may be called upon to substantiate every expenditure, both internally to the management staff of the institution, and externally to the public.
One of the affected persons who raised this factor has already been identified in the various media reports associated with the controversy involving the Chair. Any damage to this person’s reputation has already taken place and, in my view, confirming that he/she attended lunch and/or dinner meetings with the Chair cannot reasonably be expected to add to any damage in this respect. Even if it could, I do not accept that any such damage would be “unfair” in the circumstances. The conduct of the Chair, who is a senior public official, has been called into question, and the basis for the concern relates to allegations of preferable treatment for certain individuals and interests. The Chair’s reputation has no-doubt been affected by these events and, unavoidably, so has the reputation of other individuals associated with the controversy. In my view, there is nothing unfair about this situation; it simply flows by necessity from the fact that the Chair chose to submit expense claims associated with these meetings for reimbursement from public funds. For these reasons, I find that section 21(2)(i) is not a relevant factor in the circumstances of this appeal.
Findings
I find that the factor of public scrutiny under section 21(2)(a) on its own, and also when combined with the unlisted factor of ensuring public confidence in the integrity of the LCBO, weigh heavily in favour of disclosure. In contrast, I have not identified any factors that favour privacy protection in the circumstances. Although section 21(1) is a mandatory exemption claim, section 21(1)(f) does provide an exception which recognizes that disclosure of personal information can occur when it would not constitute an unjustified invasion of privacy. In my view, this is one case where the section 21(1)(f) exception applies, and I find that the undisclosed portions of Records 1, 2, 3, 4, 7, 8, 9, 10, 11 and 12 should be disclosed to the appellant.
ORDER:
2 I order the LCBO to provide the appellant with a copy of Records 1-12 in their entirety by August 10, 2000 but not before August 7, 2000.
3 In order to verify compliance with Provision 1 of this order, I reserve the right to require the LCBO to provide me with a copy of the records which it provided to the appellant.
Original signed by: July 6, 2000
Tom Mitchinson
Assistant Commissioner