Canada: The X-Cess Files: When Is A Property File Personal?

Local Governments routinely deal with informal requests to access property and licensing files at the "counter" as well as more formal freedom of information requests. Information in those files may typically seem to be "about" the property or business. In some cases, however, the property information will have a personal dimension. As a result, the Local Government may be required to withhold that information without consent to disclose or providing notice under FOIPPA.

How can Local Governments manage these requests?

The recent Alberta Court of Appeal decision in Edmonton (City) v. Alberta (Information and Privacy Commissioner), 2016 ABCA 110 gives us some guidance.

A resident of Edmonton, Ms. McCloskey, asked the City to provide her with all records relating to herself or her property. The interpretation and application of "personal information" was key to the question of whether the City was entitled to charge a fee for Ms. McCloskey's request. The City took the position that Ms. McCloskey's request went beyond personal information because she asked for records relating to herself and her property. The original adjudicator disagreed, holding that there are situations in which information about a business or property has a sufficiently "personal dimension" to fall within the statutory definition. In this case, the file included complaints that related back to Ms. McCloskey's personal conduct in relation to the property.

On appeal, the Court agreed that personal information must essentially be "about a person" and not an object but that drawing this line in a given case may be imprecise because most objects and properties have some relationship with a person. The Court also commented on the City's redactions and refusals to produce on the basis that it would be an unreasonable invasion of a third party's (complainant's) personal privacy. The adjudicator agreed that it was open to the City to redact documents but that it had to provide more information about why it had redacted otherwise relevant documents. It was not enough to merely say that they were protecting the rights of third parties. The Court upheld this decision, but left open the question of the extent of additional detail the City had to provide.

The Court also addressed the allegation that the City failed to perform its obligations to assist Ms. McCloskey and to properly respond to her application. The Court noted that privacy law raises tricky questions and a public body applying the statute in good faith does not breach its obligations merely because it errs in its interpretation.

Turning to the particulars of the alleged breaches of duty, the Court held that the requirement for disclosure to be "accurate" refers to the thoroughness of the search and subsequent production of documents that are tailored to the request. A search does not become inaccurate because an adjudicator subsequently finds that it was not responsive to the request. The City complied with its obligation to make every reasonable effort to assist Ms. McCloskey because it sought clarification over the phone from her after receiving her request. It did not matter that the City misinterpreted the scope of the request. Good faith and a prompt response meant that the City had made every reasonable effort. Ultimately, the City would not have known the parameters until the adjudicator or court clarified the scope of production.

Implications

The decision in Edmonton provides some useful information for Local Governments responding to formal freedom of information requests as well as informal requests.

First, the Court's interpretation of "personal information" broadens the scope of records that fall into this category. FOIPPA contains a similar definition of "personal information", which means that a court may find that a business or property record has a sufficiently personal dimension to constitute personal information. In Edmonton, the Court held it was reasonable to draw the line at the point where a complaint related to the individual's conduct in addition to being about her property. At times this connection is easy to see – a complaint about a resident not clearing snow from her property relates both to her conduct and her property. On the contrary, if she were to own a corporation that in turn owned that property then this connection is one step removed in the sense that the conduct complained of relates to persons acting on behalf of a legal "person", but not to an identifiable individual. It will remain a challenge for Local Governments to identify in each case whether any particular information in a property or licensing file has a sufficiently personal dimension such that it is personal information.

If records will now more commonly contain a personal dimension, then staff may have to be vigilant. In cases where there is personal information about a third party in the file, the Local Government must consider whether the disclosure would be an unreasonable invasion of the third party's personal privacy. As well, the property file may include third party business information. If the Local Government has reason to believe the responsive records contain information that might be excepted from disclosure, absent consent, it is obliged to follow the notice regime before releasing the third party information.

Secondly, there remains some uncertainty as to the amount of information Local Governments must provide in connection with decisions to redact and/or refuse to produce documents. Some explanation beyond stating the protection of a third party's privacy interest will probably be required.

Finally, the Court's conclusions as to the City's compliance with its obligations to proactively respond to information requests should provide some comfort. Local Governments are duty bound to assist the applicant and respond to requests openly, accurately and completely. Staff should promptly respond to requests and seek clarification, where appropriate, regarding the scope of the request – preferably in writing – to demonstrate good faith. Perfect interpretation of the statute and scope of disclosure will probably not be expected.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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