Privacy violation arises out of failure to notify of FOI request

On September 21st, the Information and Privacy Commissioner/Ontario held that a municipality breached the Municipal Freedom of Information and Protection of Privacy Act by failing to notify an affected person of an FOI request.

The complainant discovered that the municipality had released e-mails he had sent to councilors about a planning matter in responding to FOI requests and without providing notice. MFIPPA requires notification of a request for records containing personal information if the head has “reason to believe” their release “might constitute an unjustified invasion of personal privacy.”

The IPC held that the municipality had not met this requirement. It reasoned:

As indicated above, the County disclosed the complainant’s name, address and views and opinions about Hastings Drive without notifying him pursuant to section 21(1)(b). Given the nature of the complainant’s personal information at issue, in my view, the disclosure of at least some of this information might have constituted an unjustified invasion of his personal privacy.

In my view, the complainant should have been notified and given an opportunity to make representations as to why the Emails should not have been disclosed. As noted in Investigation Report MC-000019-1, except in the clearest of cases, fairness requires that the person with the greatest interest in the information, that is, the complainant, be given a chance to be heard. In this matter, he was not given that opportunity.

The complainant had sent his e-mails to politicians about a matter of apparent public interest. The standard for notification is low, but the notice requirement here was at least debatable.

Unfortunately, the IPC does not address the balancing of interests contemplated by the unjustified invasion exemption. For notice to be required there must be “a reason to believe” – a reason based on a provisional application of the unjustified invasion exemption. “Clearest of cases” is not the legal test, and it is wrong to notify simply because “at least some” information responsive to a request is bound to trigger the notification requirement.

This is a mild warning to institutions. There is a statutory immunity that offers some protection from civil claims for failure to notify, but the IPC has shown itself to be strict.

PRIVACY COMPLAINT MC17-35, 2020 CanLII 72822 (ON IPC).

FOI reconsideration order highlights important timing issue for Ontario institutions

On May 14th, the IPC/Ontario dismissed a request for reconsideration based on an asserted change of circumstances, a somewhat common happening given the lengthy period of time it now takes to process an FOI appeal.

The IPC had earlier affirmed a decision to deny access to certain information about the OPP’s use of cell site simulators on the basis that the information could reasonably be expected to “reveal investigative techniques and procedures currently in use in law enforcement.” After the IPC made this appeal decision, the requester learned that the OPP had switched to a new model of simulator, apparently after she made her request and before the IPC made its decision. The requester asked for reconsideration so she did not have to start again (by filing a new request and potentially re-arguing an appeal). The requester argued the Ministry’s exemption claim could not stand in light of the “new evidence.”

Assistant-Commissioner Liang declined the reconsideration request, but only on the basis that the newly proffered evidence would not have led her to make a different decision in any event. Assistant-Commissioner Liang noted that the Ministry had not deliberately withheld key evidence, which the IPC has treated as a basis for reconsideration. She did not comment on whether the Ministry ought to have brought forward the change in circumstances or whether its failure to do so might warrant reconsideration.

Appeal hearings are about the propriety of an access decision that is made at a point in time, though can invite respondent institutions to make representations about prospective harms. It goes without saying that institutions should not misrepresent the state of affairs in existence at the time they file their materials with the IPC. And if they have made accurate representations and the circumstances later change, there should be no duty to bring those circumstances to the attention of the IPC and no consequence for failing to do so. This would be a very heavy and impractical burden to bear, and would do harm to the finality owed to respondents. Requesters can and should be made to file new requests that can be the subject of fresh consideration and new access decisions.

Ontario (Solicitor General) (Re), 2020 CanLII 34928 (ON IPC).

OCA says Children’s Lawyer records not under MAG’s custody or control

On June 18th the Court of Appeal for Ontario held that the Ministry of the Attorney General is not in custody or control of records in a Children’s Lawyer litigation file even though the Children’s Lawyer, for administrative purposes, is part of MAG. The finding turns on the Children’s Lawyer’s independence and the privacy interests of the children it represents. These kind of contextual factors are important to the custody or control analysis. As stated by the Court, “an organization’s administrative structure is not determinative of custody or control for purposes of FIPPA.”

This decision is consistent with other law that suggests records within an institution are not always in custody or control of an institution – e.g., certain faculty records and personal e-mails. Custody or control is therefore no simple concept to administer and is prone to dispute. At least for now IPC decisions will be subject to judicial review on the correctness standard, another (surprising) finding the Court of Appeal made in rendering its decision.

Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 (CanLII).


IPC comments on use and disclosure of OSR in litigation

On June 15th, the Information and Privacy/Commissioner Ontario dismissed a privacy complaint that alleged a school board breached the Education Act and MFIPPA by producing a student’s OSR in response to his human rights application.

The Board produced the OSR and filed it in a brief of documents to be used at a pending Human Rights Tribunal of Ontario hearing, all pursuant to the Tribunal’s rules. The complainant objected, and in a preliminary hearing, the HRTO directed the complainant to consent or face dismissal of his application. The complainant did not consent, his application was dismissed and he subsequently filed a privacy complaint with the IPC.

The IPC held that MFIPPA prevails over the statutory privilege provision in the Education Act and that the IPC is therefore “not bound to consider section 266 of the Education Act in its deliberations.” It also held that the OSR was information “otherwise available” to the Board and therefore open to its use under the provision of MFIPPA that stipulates that MFIPPA “does not impose any limitation on the information otherwise available by law to a party to litigation.”

The IPC did recommend that, going forward, the Board refrain from unilaterally handling the OSR when its potential use and disclosure is in dispute: “… the Board should make efforts to seek direction from an administrative tribunal or court prior to disclosing the information contained within an Ontario School Record during the course of litigation.”

 York Region District School Board (Re), 2016 CanLII 37587 (ON IPC).


Reasonable necessity not enough to justify collection under Ontario’s public sector statutes

Section 38(2) is an important provision of Ontario’s provincial public sector privacy statue. It requires institutions to satisfy a necessity standard in collecting personal information. Ontario’s municipal public sector privacy statute contains the same provision.

On May 4th, the Divisional Court dismissed an Liquor Control Board of Ontario argument that the Information and Privacy Commissioner/Ontario had erred by applying a higher standard than “reasonable necessity” in resolving a section 38(2) issue. The Divisional Court held that the Court of Appeal for Ontario’s Cash Converters case establishes just such a standard:

The LCBO relies upon Cash Converters to support its submission that the IPC erred in not interpreting “necessary” as meaning “reasonably necessary.” However, Cash Converters does not interpret “necessary” in this way. In fact, it suggests the opposite. Arguably, something that is “helpful” to an activity could be “reasonably necessary” to that activity. Yet, the Court of Appeal makes it clear that “helpful” is not sufficient.

It’s hard to fathom a legislative intent to prohibit a practice that is, by definition “reasonable.” If the LCBO seeks and is granted leave to appeal this could lead to an important clarification from the Court of Appeal on a strict interpretation of section 38(2) that has stood for some time. The LCBO practice at issue – which involves collecting the non-sensitive information of wine club members to control against the illegal stockpiling and reselling of alcohol – is a good one for testing the line.

Liquor Control Board of Ontario v Vin De Garde Wine Club, 2025 ONSC 2537.

Review of IPC exclusion decisions now (officially) subject to reasonableness review

A friend just brought a notable FIPPA judicial review from February 24th to my attention. In it, the Divisional Court affirmed an IPC order to disclose the full names of FRO employees in response to a request for personal information.

The IPC held that the employment-related records exclusion in FIPPA did not apply to certain records containing employee names – records of services provided to the requester. The Court reviewed this on the reasonableness standard, finding that pre-Alberta Teachers case law supporting a review on the correctness standard no longer applies. On the application of the exclusion, the Court rejected an argument that the records of service provided were employment-related in the context:

To qualify for the exclusion, the record must be about labour relations or employment-related matters. The dictionary definition of the word “about” requires that the record do more than have some connection to or some relationship with a labour relations matter. “About” means “on the subject of” or “concerning”: see Concise Oxford English Dictionary, 11th ed., 2004, s.v. “about”. This means that to qualify for the exclusion the subject matter of the record must be a labour relations or employment-related matter.

Adopting the Ministry’s broad interpretation of “about” would mean that a routine operational record or portion of a record connected with the core mandate of a government institution could be excluded from the scope of the Act because such a record could potentially be connected to an employment-related concern, is touched upon in a collective agreement, or could become the subject of a grievance. This interpretation would subvert the principle of openness and public accountability that the Act is designed to foster.

This should be read to be consistent with the Divisional Court’s earlier decision that there need only be “some connection” with excluded subject matter for the exclusion to apply: see Ministry of Attorney General and Toronto Star, 2010 ONSC 991 (CanLII). Records that have some connection (i.e. a partial connection) to excluded subject matter are arguably still excluded, but the connection must be real, not speculative and not driven by the context in which a request is made.

The Court also affirmed the IPC’s finding that full name information is not exempt under the “unjustified invasion of personal privacy” exemption.

Question. Why not argue that the information at issue – full names or identifying information – is not “personal information” to which the right of access to personal information applies? The right of access to personal information applies to information and not whole records. In the absence of a special context, the identity of employee/service provider names should not constitute the requester/service recipient’s personal information.

Ministry of Community and Social Services v Doe et al (2014), 120 O.R. (3d) 451.

IPC says full balancing applies in mixed personal information cases

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.

Seguin (Township) (Re), 2013 CanLII 64274 (ON IPC).

The ins and outs of the e-FOI process

Here’s a presentation I delivered today in an Ontario Hospital Association webcast. I’ve been following “e-FOI” developments for a while and was happy to finally build and deliver a presentation to lend some structure to the topic. Stay tuned for more!

BC Information and Privacy Commissioner Orders Release of Union Pension Plan Information

The British Columbia Information and Privacy Commissioner (IPC) recently released a decision ordering the provincial pension regulator (Financial Institutions Commission or FICOM) to release certain information about union-run pension plans to the Independent Contractors and Business Association (ICBA), an employers’ association.  What is interesting about this case is the basis upon which the unions and trustees of the union pension plans attempted to avoid disclosure; they argued that release of the requested information would harm the business interests of the pension plans.

ICBA requested copies of pension plan filings for 16 pension plans that the trade unions had sponsored.  The information requested related to the following issues: the average annual pension paid; the average accrued monthly pension; the surplus or unfunded liability from the previous valuation report; and the surplus or unfunded liability from the current valuation report for each of the pension plans.  ICBA has asked for this information to be extracted from the filings made with FICOM, rather than copies of the actual documents which were filed with FICOM.  FICOM withheld some of the information under s. 21 of the Freedom of Information and Protection of Privacy Act (FIPPA) on the grounds that disclosure would harm the business interests of the pension plans.   FICOM subsequently changed its decision to apply s. 21 of FIPPA and gave the trustees of the 16 pension plans formal notice under FIPPA that it would release the information in full.  Trustees of 13 of the 16 pension plans (“Objecting Trustees”) objected to the disclosure of the information about their pension plans and requested that the IPC review the decision of FICOM to release the information.

The pension plans were all registered under the Pension Benefits Standards Act (PBSA) which includes a provision allowing any person to request pension plan documents (generally understood to be the plan texts and amendments, rather than filings regarding funded status).  This is unlike most other provinces, which limit access to pension information to employers, members and other beneficiaries of pension plans.  (As an aside, British Columbia will be enacting new pension legislation in 2014 and has not carried this broad right of access through to the new legislation.)

In opposition to the disclosure, the unions and Objecting Trustees made the following arguments:

1. The Objecting Trustees asserted that despite being averages, two pieces of requested information “provide personal information about the members of the plans, being the income plan members draw in retirement and the amount Plan members accrue each year before reaching retirement.”  The Objecting Trustees referred to this as “sensitive personal information about its members”.

The IPC found that because the information consists of only average amounts, the information at issue was not about identifiable individuals and the information would also not reveal information about identifiable individuals, and therefore did not constitute “personal information”.

2. The Objecting Trustees argued, with the support of FICOM, that they submitted the filings from which the requested information would be obtained in confidence.  Both the Objecting Trustees and FICOM took the position that s. 22 of the PBSA did not apply to financial filings, only pension plan documents, and the financial filings were submitted in confidence.

The IPC accepted that the filings were submitted in confidence and also found that just because the filed documents may be available to pension plan members does not make such documents widely or publicly available.

3. The Objecting Trustees and the unions argued that ICBA’s motives were tainted with anti-union malice and that the ICBA’s goal is to promote an “open-shop” workplace.  The unions focused on the fact that the ICBA offers retirement savings plans (group RRSPs) that directly compete with the union pension plans.  The Objecting Trustees argued that FIPPA is not intended to give a competitive advantage, and that it is relevant that the ICBA is not seeking the information in order to ensure that FICOM is accountable, but to assist its own members in their competition for labour.

With respect to the harm to the pension plans or the unions, the IPC held that the ICBA’s motivations in seeking release of the information cannot be relevant to the outcome of the FIPPA analysis and specifically stated that whether the ICBA was motivated by a legitimate desire to promote government accountability or by its opposition to unions was not a matter which needs to be adjudicated. 

4. The Objecting Trustees also argued that  the information at issue would be used to  “undermine political and economic support for the pension plans” by allowing ICBA to generate a comparison between the pension benefits paid and accrued under the plans and the benefits paid under RRSP arrangements, with a particular focus on the under-funded status of the union pension plans.  Similarly, the unions also argued that disclosure would harm their financial interests in collective bargaining on the basis that if an employer was aware of the actual funded status of the pension plan, this would significantly and negatively affect the bargaining position of union with respect to negotiating employer contributions to the pension plan.

FICOM also recognized that the type of information requested “could reasonably be expected to harm significantly the competitive position of the union, and interfere significantly with the negotiating position of the sponsoring union and other union and non-union employers when negotiating work rates since the financial information is key to establishing competitive wage or bid rates and securing business contracts”.  However, it decided to release the information because “the date of the data is no longer such that it would place the union sponsors under a competitive disadvantage or interfere with labour relations to the extent that significant harm might reasonably result from the disclosure of the records.”

As to whether the release of the information requested regarding the pension plans would cause harm to the business interests of the pension plans or the unions, the IPC was not persuaded that disclosure of the information at issue could reasonably be expected to cause the pension plans to lose members.  The IPC also accepted that the under-funded status of the pension plans was widely and publicly known, as it has been the source of public news and information for some time.  The IPC also did not accept that the release of the information would enable ICBA to develop significantly more attractive retirement vehicles than the registered pension plans offered by the unions.  Finally, the IPC found that past disclosures of similar information have failed to evidence the harm argued by the Objecting Trustees and the unions and the IPC found that the assertion the pension plans would lose members was merely speculative and was not supported by objective evidence. 

As a result, the IPC ordered FICOM to release the requested information to the ICBA.

Case Report – Ont. C.A. deals with creating records in Ontario FOI law

The the Ontario Court of Appeal has affirmed the IPC/Ontario’s position that records produced by replacing unique identifiers in a database with randomly generated numbers are “records” under Ontario freedom of information legislation.

The requester, a reporter from the Toronto Star, asked for access to information stored in two police databases. Presumably so he could accomplish his research without using personal information and engaging the unjustified invasion of privacy exemption, he asked that identifying information in the two databases be replaced with randomly generated and unique numbers. The evidence showed that the police board could extract the data in the form requested by writing an algorithm and relying upon its existing technical know-how, hardware and software.

In June 2007, the Divisional Court quashed an IPC order made in favour of the requester. The Court held that the request was not for “records” as defined in section 2(1)(b) of the Municipal Freedom of Information and Protection of Privacy Act:

2. (1) In this Act,

“record” means any record of information however recorded, whether in printed form, on film, by electronic means or otherwise, and includes,

(b) subject to the regulations, any record that is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution; (“document”)

Earlier today, the Ontario Court of Appeal reversed the Divisional Court’s judgement and restored the IPC order. The Court of Appeal decision is technically based on the standard of review – i.e. it only held that the IPC’s interpretation of the record definition was not unreasonable. This, however, hardly limits the force of the judgement. The Court reasoned that IPC’s order was consistent with the the text of the MFIPPA General Regulation, which has provisions that allow institutions to recover programing and related costs.  It also applied a very strong purposive analysis in construing the definition. Consider the following dicta:

A contextual and purposive analysis of s. 2(1)(b) must also take into account the prevalence of computers in our society and their use by government institutions as the primary means by which records are kept and information is stored. This technological reality tells against an interpretation of s. 2(1)(b) that would minimize rather than maximize the public’s right of access to electronically recorded information.

In my view, a liberal and purposive interpretation of those regulations when read in conjunction with s. 2(1)(b), which opens with the phrase “subject to the regulations,” and in conjunction with s. 45(1), strongly supports the contention that the legislature contemplated precisely the situation that has arisen in this case. In some circumstances, new computer programs will have to be developed, using the institution’s available technical expertise and existing software, to produce a record from a machine readable record, with the requester being held accountable for the costs incurred in developing it.

This decision makes clear that Ontario institutions must ordinarily undertake programming tasks that enable them to provide access to information stored in databases, even to mask personal information by substituting de-personalized unique identifiers for identifying information. There are two clear limits to this rule: (1) a record only capable of being produced through a proces that “unreasonably interferes with the operations of an institution” is deemed not to be a record and (2) a record that can only be produced with technical expertise not “normally used by [an] institution” is deemed not to be a record.  The Court left open whether a record that can only be produced with “hardware and software or any other information storage equipment” not normally used by an institution is deemed not to be a record but said this interpretation was “open to argument.”

The “creating records issue” is a significant one in civil litigation and in other circumstances where one has a simple right to a “record in custody or control” (see herehere and here for more).  This case is based on very specific statutory language, but is nonetheless significant to Ontario FOI-regulated institutions.

Toronto Police Services Board v. (Ontario) Information and Privacy Commissioner, 2009 ONCA 20.