Summaries of Decisions of Interest

The following are summaries of decisions that will be of interest to the access to information community, whether you are governed by the provincial, municipal or federal freedom of information statutes. For more information, please refer to our online subscription based tool, the Public Source, available at www.accessprivacy.ca, your source for information about Ontario's and M/FIPPA as well as the federal ATIA and PA.

911 transcripts and notes held by the police are protected by the personal privacy exemption

In order MO-2931, the requester sought access to transcripts and notes pertaining to a 911 emergency services phone call made by a named individual as it pertained to his encounter at the named individual's home with CBC's This Hour Has 22 Minutes. The police identified responsive records, but denied access to these records, relying on the personal privacy exemption at section 14(1) of MFIPPA. The IPC held that even though the individual was occupying an official role at the time, the information in the responsive records appeared in a personal context - that is, the individual using the 911 emergency services to contact the police. The encounter also took place at the individuals personal residence, not a place of official business. The IPC found that the disclosure of this information would constitute an unjustified invasion of the individual's personal privacy.

Contracts in the hospital sector disclosed in full

The IPC maintains the application of the "supplied" test as it applies to the hospital sector. In both PO-3230 and PO-3237, the IPC upheld the institutions decision to disclose the requested contract in full, despite objections by a third party to the contrary. The IPC held that the "supplied" portion of the third party exemption had not been met.

Exercise of Discretion still a recurring issue in light of the SCC's decision

Pursuant to the Supreme Court of Canada's decision in Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23, the ministry's claim that an entire police brief was exempt under section 14 of FIPPA was returned to the IPC for reconsideration of the ministry's exercise of discretion. In order PO-3231-I, the IPC considered the ministry's exercise of discretion and found that the ministry's decision was flawed, in that it took into account irrelevant factors, while failing to take into account considerations that were relevant. Ultimately, the ministry was ordered to re-exercise its discretion by properly weighing a number of factors, as outlined in the process set out by the SCC.

IPC emphasizes the importance of maintaining emails in a retrievable manner

In June of 2013, the Information and Privacy Commissioner of Ontario, Dr. Ann Cavoukian, released a Special Investigation Report, Deleting Accountability: Records Management Practices of Political Staff, in which she made findings critical of the email management practices of political staff, that were identified through hearings taking place before the Standing Committee on Justice Policy. She also commented on the failure of political staff to retrieve emails responsive to motions of the Standing Committee and to a number of freedom of information requests. Included in this Report was her conclusion that emails, once deleted from the government email system, were unlikely to be retrievable.

Subsequently, however, Dr. Cavoukian asserted that she was provided with new information material to her initial investigation, which should have been provided to her at the time of her initial investigation. Thus, in August of 2013, she prepared an addendum to her original work, which described the circumstances surrounding the disclosure of new information provided by Ministry of Government Services (MGS) staff, as well as other detailed information that was not previously provided. Dr. Cavoukian confirmed, in light of the new information, that she would have arrived at a different conclusion regarding the ability of MGS staff to retrieve the relevant emails. However, she emphasized that the other findings and recommendations in her original report were not affected and continued to be accurate.

Dr. Cavoukian's newest findings contained in her addendum to the Special Investigation Report established, in contrast with her original report's findings, that the email records in question were indeed retrievable through the OPS Enterprise Email System, and that the MGS staff was indeed able to retrieve potentially relevant information.