Order F19-41 (2019 BCIPC 46) from the Office of the Information & Privacy Commissioner ("OIPC") reviews a professor's requests for records from a university's disciplinary investigations into his conduct at work and the university's decision to withhold certain documents pursuant to ss. 13 and 22 of the Freedom of Information and Protection of Privacy Act ("FIPPA"). The records in dispute were emails, memos and key message documents about communication matters, security officer incident reports, summaries of events, an investigator's notes, and the minutes of a department meeting.
It is important for post-secondary institutions and other public bodies to be apprised of the documents they may withhold, and those that must be disclosed if requested. This case helps to clarify what information can and cannot be withheld.
Section 13(1) of FIPPA authorizes the head of a public body to refuse to disclose information that would reveal advice or recommendations developed by or for that public body. The process for determining whether this subsection applies is to first determine whether the disclosure would reveal advice or recommendations. If such information would be revealed, then it must be determined if the information falls into one of the listed exceptions under subsection (2), in which case, the public body may not refuse to disclose the information. One such exception is factual material (13(2)(a)).
The OIPC found much of the information related to advice and recommendations, but found certain information was of a narrative and factual type about what was said and done, decisions made, and instructions given. In particular, information that was found to be factual included a report of events; interview questions to be put to the applicant; factual statements and/or reasons for a decision; a recounting of what was said to the media and how the media responded; and factual comments and questions about a report.
The OIPC then went on to review whether any information may be withheld under s. 22, which requires public bodies to refuse to disclose personal information if its disclosure would be an unreasonable invasion of a third party's privacy. The first step involves determining if the information is personal information, then determining if that information falls under exceptions in s. 22(4) where a disclosure is not an unreasonable invasion of privacy, and, lastly, determining whether ss. 22(3) applies to presume the information to be an unreasonable invasion of privacy.
The OIPC found that personal information about students' courses, academic activities, concerns, and other institutions were covered as a presumptive invasion of privacy. However, the OIPC found that factual information about what third parties observed, said and did in the context of their interactions with the applicant was not presumed to be an unreasonable invasion of privacy. The OIPC also found that some communications that included the opinions about third parties were also not a presumed invasion of privacy. Additionally, investigator notes that included factual information received from third parties were also not covered as a presumed invasion of privacy.
The OIPC then went on to consider if any of the presumptions of invasions of privacy were rebutted in the circumstances under ss. 22(2) and found that they were not. The OIPC stated that the dispute was clearly one person's employment dispute with his employer, nothing larger was at stake, and the details of the third party personal information would not add anything to the public's understanding of the activities.
This case clearly shows that when reviewing materials for potential disclosure under FIPPA, attention should be paid to information that may be considered factual or narrative and simply recounts what occurred as such information may not properly be withheld. Of particular note is that the information was to be disclosed from a variety of sources, including emails and investigator's notes. Additionally, the case also shows the OIPC's willingness to uphold the presumptions in s. 22(3) where applicable.
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