Court of Appeal for Ontario

Ontario (Information and Privacy Commissioner), 2012 ONCA 393

Date: 2012-06-08

Docket: C54647

Before: Laskin, Sharpe and Epstein JJ.A.

Between:

Ministry of Community Safety and Correctional Services Applicant (Appellant)

and

Information and Privacy Commissioner, and John Doe, Requester Respondents (Respondent in appeal)

Application Under the Judicial Review Procedure Act, R.S.O. 1990, c. J. 1

Counsel: Sara Blake, for the appellant William S. Challis, for the respondent

Heard and released orally: June 4, 2012

On appeal from the order of the Divisional Court (Aston, Low and Hourigan JJ.), dated June 7, 2011, with reasons by Aston J. and reported at 2011 ONSC 3525, 282 O.A.C. 199, which dismissed the application for judicial review of Order PO-2811 made on August 7, 2009, by an adjudicator employed by the Information and Privacy Commissioner, reported at [2009] O.I.P.C. No. 127.

Endorsement

[1] A request was made under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 for disclosure of a record containing a list of the first three characters of Ontario’s postal codes in one column with a second corresponding column of figures representing the number of individuals residing in each area who are listed in the Ontario Sex Offender Registry. The Ministry resisted the request based on its assertion that the information in the record may lead to the identification of the whereabouts of registered offenders. The Information and Privacy Commissioner ordered that the record be disclosed.

[2] The Divisional Court dismissed the Ministry’s application for judicial review of the Commissioner’s decision.

[3] The Ministry obtained leave to appeal to this court based on its submissions that, given its concern about the potential use of the requested record in terms of locating registered offenders, the record is exempt from disclosure under s. 14 of the Act, as it contains information that may reasonably lead to an expectation of harm (s. 14(1)(e)) or may facilitate the commission of an illegal act or hamper the control of crime (s. 14(1)(l)).

[4] The Commissioner found that the evidence did not support the Ministry’s concern and therefore concluded that the Ministry had failed to provide a basis for exempting the record from disclosure.

[5] We agree with the Divisional Court that the Commissioner’s conclusion was reasonable.

[6] The Ministry offered little, if any, evidence that the partial postal code information contained in the record, alone or together with other information, may be used to locate convicted sex offenders within communities or may engender an offender’s subjective heightened perception of this possibility, thereby adversely affecting compliance with the Sex Offender Registry.

[7] The Commissioner applied the correct test. And his findings of fact were supported by the evidence. It was therefore open to the Commissioner to hold that the Ministry had not met the evidentiary burden described in Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information & Privacy Commissioner) (1998), 1998 CanLII 7154 (ON CA), 41 O.R. (3d) 464 (C.A.).

[8] The appeal is therefore dismissed. There will be no order as to costs.

“John Laskin J.A.”

“Robert Sharpe J.A.”

“Gloria Epstein J.A.”