On September 27, 2013 the Information and Privacy Commissioner/Ontario issued a significant decision on the exemption from the right of access to personal information in section 38(b) of MFIPPA (and 49(b) of FIPPA by implication) by finding that a disclosure that is presumed to constitute an unjustified invasion of privacy for the purpose of answering a general records access request is not so presumed for the purpose of answering a request for access to one’s own personal information.
Individuals have a right of access to their own personal information that is in the custody or control of Ontario institutions subject to a number of discretionary exemptions, including an exemption that applies if “the disclosure would constitute an unjustified invasion of another individual’s personal privacy.” This exemption often arises in cases in which individuals seek access to personal information about themselves that is contained in complaints and incident reports (which record information from witnesses, complainants and others about more than one person).
The “unjustified invasion” question is informed by the mandatory exemption for unjustified invasion of personal privacy that applies to “general records” access requests. The mandatory exemption includes a provision that deems certain disclosures to be a presumed unjustified invasion. Here is the MFIPPA provision:
14(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,
(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;
(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;
(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels;
(d) relates to employment or educational history;
(e) was obtained on a tax return or gathered for the purpose of collecting a tax;
(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;
(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or
(h) indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations.
In Seguin Township, Adjudicator Cropley held that the application of this deeming provision does not end the analysis in a personal information request as it does in a general records request. A head should go on to consider the other relevant factors (including those listed in the Act) to determine if, on the balance, the invasion of privacy to the person other than the requester is “unjustified” in the circumstances. Adjudicator Cropley said that her interpretation consistent “legislature’s intent in creating a separate, discretionary exemption claim that makes a distinction between an individual seeking another individual’s personal information and an individual seeking his own personal information.” It invites both greater access to personal information and greater uncertainty in dealing with access to personal information requests.
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