CITATION: Saiyegh v. Ontario (Information and Privacy Commissioner), 2014 ONSC 741
DIVISIONAL COURT FILE NO.: DC-13-1920
DATE: 20140131
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: FARIS HAZIM ABDUL-RAHEEM SAIYEGH, Applicant
and
INFORMATION AND PRIVACY COMMISSIONER/ONTARIO, THE UNIVERSITY OF OTTAWA and ATTORNEY GENERAL OF ONTARIO, Respondents
BEFORE: Hackland R.S.J., J. Wilson and Thorburn JJ.
COUNSEL: Faris Hazim Abdul-Raheem Saiyegh, Self-represented
Dustin Kenall and William S. Challis, for the Information and Privacy Commissioner of Ontario
Julie Sicotte, for the University of Ottawa
Meagan Williams and Judie Im, for the Attorney General of Ontario
DATE HEARD: January 28, 2014
THORBURN J.
E N D O R S E M E N T
[1] This is an application for judicial review of a decision of an adjudicator under the Freedom of Information and Protection of Privacy Act (“FIPPA”) R.S.O. 1990, c. F.31.
Background Facts
[2] The Applicant, Faris Hazim Abdul-Raheem Saiyegh, alleges that, on October 21, 2009, as he was sleeping at a computer terminal at the University of Ottawa computer laboratory, an individual approached him and attempted to steal his backpack. He awoke and the individual left. The incident was recorded by two cameras. University Security and the Ottawa Police were contacted. After an investigation, they concluded that the suspect was not attempting to steal his bag.
[3] The Applicant sought access to videotaped footage and information relating to the incident that was collected by the University of Ottawa. The University granted access to the security report and four of the nine photographs, but withheld portions of five photographs and a one minute video recording.
[4] The Applicant appealed the University’s denial of access, asserted that additional responsive records exist, and requested certified copies of the records. The Appeal was heard by an adjudicator with the offices of the Information and Privacy Commissioner of Ontario.
The Adjudicator’s Decision
[5] The adjudicator for the Information and Privacy Commissioner upheld the decision of the University and refused to disclose a video recording and other records relating to an individual whom the Applicant suggests was trying to steal from him. In her decision of February 28, 2013, she held that:
(a) the University’s search was reasonable and there was no reason to believe that other relevant documents existed;
(b) the University was not obliged to created “certified” records;
(c) the records sought contain the personal information of several individuals pursuant to section 2(1) of FIPPA;
(d) the University had the discretion to withhold these records as they were exempt from disclosure under section 49(b) of FIPPA as disclosure would be an unjustified invasion of the privacy rights of others; [^1] and
(e) disclosure of the records would involve an unjustified invasion of the privacy rights of the individual the Applicant suspected of attempted theft and of three other unidentified university students in the video.
[6] The adjudicator chose not to address the Applicant’s conspiratorial and other claims as she held that they did not assist in her determination of the issues.
The Issues
[7] The issues before the adjudicator were as follows:
a) Did the University conduct a reasonable search for records, or are there additional records which ought to have been discovered?
b) Was the University required to provide a “certified” copy of the security report requested by the Applicant?
c) Do the documents requested contain “personal information” of individuals other than the Applicant pictured in the photos and videotape? If so, would the disclosure of that personal information be an unjustified invasion of their personal privacy? Did the University illegally destroy one of the video records? and
[8] In addition the Applicant seeks from this court relief requested in his Second Amended Notice of Application, namely:
i. A declaration that the University committed fraud and perjury against the Commissioner;
ii. An order to enforce fraud and perjury charges under section 61 of FIPPA for offences committed against it by the University; and/or
iii. An order staying civil proceedings in which the Applicant is involved?
Analysis of the Issues and Conclusion
[9] Sections 2(1) and 6 of the Judicial Review Procedure Act, R.S.O. 1990 c. J.1 provide that the Divisional Court has jurisdiction to review this request for judicial review seeking mandamus, certiorari and declaratory relief.
[10] The standard of review is reasonableness.
[11] The Supreme Court of Canada has affirmed that deference will usually be afforded where tribunals have interpreted their own enabling statutes.[^2] Moreover, the courts have held that the reasonableness standard applies to the Commissioner’s interpretation and application of the definition of personal information, under section 2 of FIPPA, the personal privacy exemption contained in section 21, and the question of whether disclosure would constitute an unjustified invasion of privacy under section 21(1)(f), in light of the factors and presumptions in subsections 21(2)-(4).[^3]
[12] For the reasons that follow, we find that the Adjudicator’s decision is reasonable and discloses no reviewable error. A consideration of the issues is set out below.
A. Was the University’s Search for Additional Records Reasonable?
[13] The investigator with the University’s Protection Services was an experienced employee knowledgeable in the subject matter of the request expended a reasonable effort to locate records which are reasonably related to the request.The investigator indicated that her method covered the contents of the search, search time and period covered. The University provided a reasonable and acceptable explanation as to why more footage did not exist.
[14] The Applicant’s written fax to request access to the records came almost two years after the event in question. The University is not required to keep records for more than one year and no longer had one of the video recordings made of the incident in question.[^4]
[15] For these reasons, the adjudicator had sufficient evidence before her to reasonably conclude that an experienced employee of the University had conducted a reasonable search for records and no additional records existed at the time of her search.
B. Provision of “Certified” or “Official” Copies of a Record
[16] An institution is generally not obliged to “create a record” under FIPPA. Moreover, there is no requirement, when a record is produced, to produce a “certified” copy.
[17] The adjudicator’s decision that the University met its obligations by providing the Applicant with a copy of the security report and did not need to certify the report was reasonable.
C. Production of Remaining Records Constitutes Personal Privacy of Third Persons
[18] Under section 2(1) of FIPPA, “personal information” means recorded information about an identifiable individual. The adjudicator found that, “The records contain images of the appellant and other individuals that pinpoint the locations, movements and activities of the appellant and these individuals at certain times on a specific day. Previous orders of this office have found that images of individuals contained in photographs and video footage qualify as the personal information of those individuals.”
[19] The University was not in a position to obtain the consent of those third parties for the release of their personal information. Moreover, the adjudicator found the angles of the redacted photos show that even a truncated video would still show the “suspect” as well as one of the other third party individuals.
[20] For this reason, the adjudicator reasonably found that the images of three third parties in the five photographs and the video constitute their personal information.
D. The University had the Discretion to Withhold the Records and did not Illegally Destroy Them
[21] Section 49 of FIPPA gives an institution discretion to withhold records that contain both the requester’s and another individual’s personal information if disclosure would result in an unjustified invasion of privacy. Section 21(1) requires an institution to withhold records that disclose the personal information of a person other than the requester unless a specified exception applies. Section 21(2) provides a list of factors “relevant” to considering whether a disclosure constitutes an unjustified invasion of privacy, while section 21(3) provides a list of factors “presumed” to constitute an unjustified invasion of privacy.[^5]
[22] The University compiled the records as part of an investigation into a possible theft. They are therefore presumed to constitute an invasion of privacy in accordance with section 21(3) (b) of FIPPA.
[23] Furthermore, the Applicant’s civil claims have been dismissed, either as vexatious and/or for failure to state a claim. Moreover, the Applicant has presented no proof of his allegations of conspiracy, regarding persecution by the government or deliberate destruction of documents. Therefore, disclosure in order to promote a “fair determination of rights”, as per section 21(2)(d) is not a relevant consideration.
[24] Disclosure of the information in question is presumed to constitute an unjustified invasion of personal privacy as set out in section 21(3)(b), and for these reasons, the adjudicator reasonably exempted the information from disclosure pursuant to section 49(b) of FIPPA.
E. Court’s Jurisdiction to Grant Additional Relief
[25] The adjudicator found that the Applicant’s numerous conspiratorial and other claims were not helpful to her determination of the issues and she did not address those claims in her decision.
[26] The Divisional Court has confirmed that, pursuant to section 2(1) of the Judicial Review Procedure Act, on an Application for judicial review,[^6]
“…jurisdiction is limited to reviewing the decision [in question]. The Court has no jurisdiction to make any Order or grant any relief beyond the narrow parameters of his application.”
[27] More specifically, the reviewing court generally has no authority to substitute its own judgment in place of the decision of an inferior tribunal.[^7]
[28] The adjudicator reasonably declined to consider the conspiratorial and other claims and there is no basis to quash that decision.
Costs
[29] The Privacy and Information Commissioner and the Attorney General of Ontario filed material together. The Respondent, University of Ottawa, supported the position of the Information and Privacy Commissioner of Ontario but did not file materials.
[30] The three responding parties seek their costs on a partial indemnity scale. The Privacy Commissioner seeks costs in the amount of $5,143.48, the Attorney General seeks costs of $2,017.50 and the University of Ottawa seeks costs of $5,200.00.
[31] Having reviewed the respective bills of costs, we exercise our discretion to award the Privacy Commissioner the sum of $4,000.00, the Attorney General $2,000.00 and the University of Ottawa $2,000.00, which costs are inclusive of disbursements and HST.
Thorburn J.
Hackland R.S.J.
J. Wilson J.
Released: January 31, 2014
CITATION: Saiyegh v. Ontario (Information and Privacy Commissioner), 2014 ONSC 741
DIVISIONAL COURT FILE NO.: DC-13-1920
DATE: 20140131
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Hackland R.S.J., J. Wilson and Thorburn JJ.
BETWEEN:
FARIS HAZIM ABDUL-RAHEEM SAIYEGH
Applicant
and
INFORMATION AND PRIVACY COMMISSIONER/ONTARIO, THE UNIVERSITY OF OTTAWA and ATTORNEY GENERAL OF ONTARIO
Respondents
E N D O R S E M E N T
THORBURN J.
Released: January 31, 2014
[^1]: Unjust invasions are set out in section 21 of the Act. Section 21(3)(b) provides that disclosure will not be required where the documents relate to a law enforcement investigation and there is no basis for the allegation, and section 21(2)(e) provides that disclosure will not be required where the individual accused could suffer pecuniary or other harm. (The Applicant has commenced a civil action and the unidentified person is currently named as “University of Ottawa Computer Lab’s Thief”).
[^2]: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61.
[^3]: See para. 25 of the Respondents’ factum; the Respondents cite numerous cases: Ontario(Ministry of Health and Long Term Care) v. Ontario (Assistant Information and Privacy Commissioner) (2004), 2004 43693 (ON CA), 73 O.R. (3d) 321 (C.A.); Ontario (Attorney General) v. Pascaoe, 2002 30891 (ON CA), [2002] O.J. No. 4300 (C.A.).; and O.S.S.T.F., District 39 v. Wellington Board of Education (1995), Toronto Doc. 407/93 (Ont. Div. Ct.).
[^4]: General, R.R.O. 1990, Reg. 460, s. 5(1).
[^5]: See Appendix I for an excerpt of s. 21.
[^6]: Whitney v. Information and Privacy Commissioner of Ontario, 2013 ONSC 996.
[^7]: R. v. Thomson (2005), 2005 8664 (ON CA), 74 O.R. (3d) 721 (C.A.).