CITATION: York (Police Services Board) v. (Ontario) Information and Privacy Commissioner, 2012 ONSC 6175
DIVISIONAL COURT FILE NO.: 585/11
DATE: 20121030
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, LAX and MACKINNON JJ.
B E T W E E N :
THE REGIONAL MUNICIPALITY OF YORK POLICE SERVICES BOARD
Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO and YORK REGIONAL POLICE ASSOCIATION
Respondents
Daniel E. Kuzmyk and Catherine Virgo
for the Applicant
William Challis
for the Respondent the Information and Privacy Commissioner
Gary Hopkinson
for the Respondent York Regional Police Association
HEARD at Toronto: October 30, 2012
PARDU J. (ORALLY):
[1] The applicant seeks judicial review of a decision of an adjudicator with the Information and Privacy Commissioner of Ontario ordering that base salaries of the York Region Chief of Police and two deputies had to be disclosed under the Municipal Freedom of Information and Privacy Act. The adjudicator held that while the information sought was personal information which presumptively constituted an unjustified invasion of personal privacy there was a compelling public interest in the disclosure of the record which outweighed the purpose of the exemption as envisaged by s.16 of the Municipal Freedom of Information and Privacy Act.
[2] The parties agree that the standard of review is reasonableness. The applicant alleges that the adjudicator’s decision was unreasonable because:
He failed to balance the privacy interests of the persons affected by disclosure.
There was no compelling private interest justifying disclosure of the information.
The Public Sector Salary Disclosure Act was the sole statutory mechanism governing disclosure of the income of public servants and disclosure of the base salary was not required by that legislation.
[3] It is apparent from the reasons of the adjudicator that he balanced the privacy interest and the public interest in disclosure:
In my view, the compelling public interest in disclosure of the withheld portions of the records at issue clearly outweighs the purpose of the section 14 exemption in this case. The public has a right to know to the fullest extent possible how taxpayer dollars have been allocated to public servants’ salaries, and this has particular force with respect to public servants at senior levels who earn significant amounts of money paid out of the public purse. Certainly the PSSDA is one important tool for ensuring such openness and transparency. However, in my view, to limit disclosure to only those amounts that are disclosed under the PSSDA seems incongruent with the government’s commitment to openness and transparency and, in turn, accountability for the allocation of public resources. In my view, when an individual enters the public service he/she accepts that his/her salary may be exposed to public scrutiny. In this case, the amounts at issue exceed the PSSDA $100,000 threshold and the impact on the affected parties’ privacy is limited to the amounts provided for pay for performance in 2009, which can be extrapolated from a comparison of the base salary amounts in the records with the salaries published under the PSSDA for that year. In my view, the need for complete transparency in this case outweighs the limited privacy interests of the affected parties.
[4] He recognized that the Public Sector Salary Disclosure Act required disclosure of the total income paid to the Chief and deputies. The effect of his order was to reveal the portions of that income which were represented by base salary and the portions that represented pay for performance.
[5] It was open to the adjudicator to conclude that the privacy interests of the Chief and deputies in disclosure of this remaining information were somewhat attenuated. The adjudicator did in fact balance the interests of the persons affected and the public interest in transparency of salary and benefits afforded to public servants. This lies at the core of his mandate and his decision is owed deference. The result is well within the range of reasonable outcomes. The interplay between the Public Sector Salary Disclosure Act and the Municipal Freedom of Information and Privacy Act lay equally within his field of expertise.
[6] The application is dismissed for reasons delivered orally. Based on the consent of the parties, costs against the applicant ordered in favour of the York Regional Police Association fixed at $7,000.
PARDU J.
LAX J.
MAcKINNON J.
DATE OF REASONS FOR JUDGMENT: October 30, 2012
DATE OF RELEASE: November 5, 2012
CITATION: York (Police Services Board) v. (Ontario) Information and Privacy Commissioner, 2012 ONSC 6175
DIVISIONAL COURT FILE NO.: 585/11
DATE: 20121030
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PARDU, LAX and MACKINNON JJ.
B E T W E E N :
THE REGIONAL MUNICIPALITY OF YORK POLICE SERVICES BOARD
Applicant
– and –
INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO and YORK REGIONAL POLICE ASSOCIATION
Respondents
REASONS FOR JUDGMENT
PARDU J.
DATE OF REASONS FOR JUDGMENT: October 30, 2012
DATE OF RELEASE: November 5, 2012