Recently, in Order MO-3426, Ontario's Information and Privacy Commissioner upheld a municipality's decision not to disclose records of complaints received regarding the requestor's property.
Background
The requestor submitted a request to City of Toronto under the Municipal Freedom of Information and Protection of Privacy Act for records generated by the City in reviewing an application for a permit to landscape his front yard "including all records of verbal and written complaints, comments, objections and the like with names not redacted". The City granted only partial access on the basis that most of withheld information met requirements for mandatory exemption under sections 14(1) (unjustified invasion of personal privacy) and the discretionary law enforcement exemption 8)1(d) (confidential source).
The requestor appealed the City's decision to the Commissioner. Following an unsuccessful mediation, the matter came before Adjudicator Jennifer James.
Issues
The issues before the Adjudicator were:
- Do the records contain "personal information" as defined in section 2(1) and, if so, to whom does it relate?
- Would disclosure of the personal information at issue constitute an unjustified invasion of personal privacy under section 14(1)?
- Does the discretionary exemption at section 8(1) apply to the remaining information at issue?
Decision
Issue # 1: the records contain "personal information" of the complainant, not the requestor
The information at issue related to the complainant and was contained in email chains duplicating the complainant's name, address, home phone, cell phone, personal email address, and other of the complainant's "personal information".
The Adjudicator found that none of the information was personal information of the requestor because it was information about the requestor's property and information about a property is not "personal information" unless it reveals something of a personal nature about an individual, which this information did not.
Issue # 2: disclosure of the complainant's "personal information" would constitute an unjustified invasion of privacy
After reviewing the section 14(1) mandatory exemption, the Adjudicator found that the information was supplied by the complainant in confidence pursuant to paragraph (h) of section 14(3). This raised the presumption that disclosure of the information would be an unjustified invasion of personal privacy under section 14.
In so concluding, the Adjudicator had regard to the fact that the City had an established practice of protecting the privacy of individuals filing complaints. The Adjudicator took note as well that the City's website contained a statement that its collection of personal information was subject to the Act. These facts demonstrated that both the City and the complainant had a reasonable expectation that the personal information at issue would be kept in confidence.
Issue # 3: the remaining information must be disclosed
The remaining information consisted of a photo of the subject property, a survey and schedule, and small portions of email exchange between the City and complainant. The City submitted that this information qualified for an exemption under section 8(1)(d) because its disclosure could reasonably be expected to "disclose the identity of the confidential source of information in respect of a law enforcement matter".
After confirming that a municipal investigation into a possible by-law violation is a "law enforcement matter", the Adjudicator held that the information must, nevertheless, be disclosed because it did not contain any of the complaint's personal identifiers. Therefore, disclosure could not reasonably be expected to disclose the complainant's identity.
Conclusion
The Adjudicator upheld the City's decision to withhold the complainant's personal information contained in the responsive records and ordered the City to disclose the remaining information at issue.
Order MO-3426 is notable for two reasons. First, it provides useful guidance for municipalities seeking to rely on the section 14(1) mandatory exemption to justify not disclosing complainants' personal information. Second, it clarifies that evidence of municipal policies and established practices inform the "objective assessment" of whether both the municipality and the complainant had an expectation that the information at issue would be treated confidentially and whether that expectation was reasonable in the circumstances.
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.
