John Higgins

The Minister of Health responded to two freedom of information requests by refusing to confirm or deny the existence of responsive records, relying on s. 21(5) of the Freedom of Information and Protection of Privacy Act.

The Information and Privacy Commissioner held that the Minister must establish both that disclosure of the records would constitute an unjustified invasion of personal privacy, and that disclosure of the mere existence of the records would itself convey information constituting an unjustified invasion of privacy.

The Divisional Court quashed the Commissioner's decision.

On appeal, the Court of Appeal held that the standard of review was reasonableness and that the Commissioner's interpretation of s. 21(5) was reasonable.

The appeal was allowed and the application for judicial review was dismissed.

Three requesters sought access to information in the possession of Ontario government ministries.

The ministries denied access, claiming the records were excluded from the Freedom of Information and Protection of Privacy Act under ss. 65(6)1 and 65(6)3.

The Assistant Privacy Commissioner ruled the Act applied, interpreting 'interest' as a 'legal interest' and finding no current or anticipated proceedings.

The Divisional Court dismissed the ministries' application for judicial review.

On appeal, the Court of Appeal held the standard of review is correctness.

The Court found the Commissioner erred by restricting 'interest' to 'legal interest' and by introducing a time element into the exclusions.

The appeal was allowed and the Commissioner's decisions were quashed.