The following are summaries of decisions that will be of interest to the access to information community, whether you are governed by the federal, provincial or municipal 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 M/FIPPA as well as the federal ATIA and PA.
Also, we have our schedule in place for the 2012 Ontario Hospital FIPPA Forum teleconferences. These teleconferences are designed for people interested in and responsible for FIPPA issues within their hospitals. The next teleconference will be held September 12, 2012 at 8:30am. For those that wish to register please register online at www.accessprivacy.ca.
Summaries of Decisions of Interest
Courts Decide When Your Home Address and Postal Code may be "Personal Information"
The Divisional Court in Northstar Aerospace v. Ontario (Information and Privacy Commissioner), 2011 ONSC 2956, interpreted the definition of "personal information" broadly and overturned Order PO-2763. The Court held that because it is arguable that street addresses coupled with confidential chemical leak test results of an individual's home could be "about" an individual, it therefore fell within the definition of "personal information".
However, in Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2012 ONCA 393, the Court of Appeal upheld the Divisional Court and Order PO-2811 to find that the first three digits of a postal code coupled with the number of sex offenders residing within that area was not considered to be "personal information," since it would not be possible to identify a particular sex offender from this information.
IPC Vigorously Upholds Research Exclusion
In Order PO-3084, the IPC vehemently applied the research material exclusion under section 65(8.1) of FIPPA to expense reports of a university professor on the basis that the expense reports related to eligible expenditures for research activities. The exception to this exclusion under 65(9) for funding amounts received relating to research, was not found to apply. The importance of academic freedom was highlighted in the Order as a "Commissioner's Message". Specifically, the Commissioner stated that "academic freedom permits our universities to freely engage in research and the exploration of controversial issues, without the fear of interference by government or the public [...] Academic freedom is a critical underpinning of our institutions of higher learning. It is a value I am delighted to be able to uphold."
Tactful Deployment of Police Protected by Law Enforcement Exemption
In Order MO-2769-R, the IPC reconsidered and reversed two previous orders relating to the law enforcement exemption under subsection 8(1)(e) of MFIPPA. The IPC found that police diagrams and information describing command words and signals used by the police during the June 2012 G20 summit relating to training or instructions given to police officers were exempt under subsection 8(1)(e). Disclosure of these records could reveal the tactful deployment of the police during crowd control and could reasonably be expected to endanger the life or physical safety of the police or other people.
Broad application of Custody and Control
The IPC often examines the mandate of an institution to determine whether the records relate to a legitimate business purpose and can be considered under the custody and control of an institution. In this vein, Order PO-3083-R, the IPC considered a number of factors but noted that there was "more than a mere connection between the Ministry's mandate and the records at issue." The request was not for day-to-day records of the transfer payment agency; rather, it was for information that went directly to the Ministry's obligation to ensure accountability for the provincially funded service. Therefore it was held that the records held by a transfer payment agency were under the "control" of the Ministry.
The IPC once again applied the "custody or control" test broadly to capture detailed cellular phone records of a former city mayor in Order MO-2771. The former mayor submitted summary invoices to the city for cellular phone reimbursement. Although the detailed cellular records were mailed directly to the former mayor and were never in the custody of the City, the IPC held that due to a city policy that directs members of council to retain supporting documentation and invoices for expenses, the IPC held that because the city could reasonably be expected to obtain a copy of the records upon request, they were under the "control" of the City.
The IPC in order MO-2773 took a different approach to records relating to a harassment complaint against a city councilor. Records solely in the councilors possession were not considered in the "custody or control" of the municipality. These records contained personal notes, communications and documents relating to the harassment complaint.