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).

 

Ontario master questions state of jurisprudence on OSR privilege

On January 22nd, Master Muir of the Ontario Superior Court of Justice held that answers to discovery questions that would disclose information contained in the Ontario Student Records of non-party students should not be answered based on the statutory privilege in section 266 of the Education Act.

Master Muir held that he was bound by Pandremenos v Riverdale Collegiate Institute, [1998] OJ No 1480 (GD), but not without expressly stating his disagreement with an interpretation of section 266 that precludes access to information contained in an OSR (as opposed to an OSR itself). He said:

In my view, the relevant portions of the Act make it clear that it is the OSR file itself that is privileged and not necessarily all of the information that may find its way into the OSR. Section 266(2) of the Act creates the privilege. It provides that “a record [that is, the OSR] is privileged” [emphasis added]. It says nothing about the specific information that section 265(1)(d) of the Act requires the principal to collect for inclusion in the OSR. This is to be contrasted with sections 266(9) and 266(10) of the Act. Section 266(9) states that “no person shall be required in any trial or other proceeding to give evidence in respect of the content of a record” [emphasis added]. Section 266(10) provides that “every person shall preserve secrecy in respect of the content of a record” [emphasis added]. It is noteworthy that the word “content” is absent from section 266(2).

In my view, if the legislature had intended to extend the privilege to any piece of information that may end up in an OSR (such as something as basic as a student’s address or date of birth, for example) it would have used much broader language that would clearly extend the privilege to the contents and to all information that may be found in an OSR. In my view, the interpretation suggested by Northmount could lead to an absurd situation where certain basic information about an individual could never be disclosed or introduced into evidence in a civil proceeding simply because he or she happens to be a student to whom the Act applies and the information in question can also be found in his or her OSR.

Master Muir noted other decisions by the Court in which discovery was allowed because the information at issue was not required to be contained in the OSR by the Ministry’s guideline. Master Muir said these decisions are distinguishable from cases in which the information at issue is required to be contained in the OSR as in Pandremenos and the matter before him.

Robinson v Northmount School for Boys, 2013 ONSC 1028 (CanLII).

Case Report – Records ordered to be produced despite arguments made about youth privacy

On May 5th, the Ontario Superior Court of Justice ordered parts of a student’s Ontario Student Record and various records in custody of the police to be disclosed to a plaintiff in a civil action.

The lawsuit related to a violent incident by one grade seven student against another, who later sued the offending student’s guardian and others for an alleged lack of supervision.

In ordering the offending student’s OSR to be disclosed, the Court explained how the statutory privilege in section 266 of the Education Act has not been interpreted as a barrier to production, in particular when the student or his or her guardian is a party.

In my view [three cases] establish the principle that where a person’s school record is relevant and producible in accordance with Rule 30.10, and a party is either the student or the parent or guardian of the student, then the court should order the student (if an adult) or the parent or guardian to sign a consent and take all reasonable steps to have the record holder produce the record for the purpose of the litigation.

Regarding the police records, the offending student was never prosecuted, so the police did not oppose the motion and took the position that the Wagg screening process need not be engaged. The Children’s Lawyer argued, however, that records should not be produced because the police had no right to obtain any statement from the offending student because they were not investigating any offence and because the child was not afforded a right to counsel and to have a guardian present. The Court rejected this argument, stating:

The general common law rule is that evidence in civil cases is admissible regardless of how it is obtained. In criminal cases, this rule is overridden by the Charter where the evidence is obtained by the state. There appears to be an evolving concept that the court has the discretion to exclude evidence in civil cases if it is obtained in breach of the Charter. These propositions are discussed in Paciocco and Stuesser, The Law of Evidence, 4th ed., Irwin Law, 2005 at p. 355 ff.

Although making this statement, the Court held that, in any event, the admissibility of evidence should be determined at trial and potential inadmissibility is not a barrier to production. This is the same principle that underlies the limiting interpretation of section 266.

Lee v. McNeil, 2008 CanLII 20984 (ON S.C.).

Case Report – IPC says personal information in OSR shall not be released

On April 11th the IPC/Ontario denied a parent’s appeal for access to information about an incident that led to the suspension of two students, and in doing so made a significant statement on a student’s privacy interest in information contained in the Ontario Student Record.  

The records at issue were about two students other than the parent’s child, so the Board claimed they were exempt based on the exemption in section 14 – i.e., it claimed that disclosure would constitute an “unjustified invasion of privacy.” It also argued that disclosure should be presumed to constitute an unjustified invasion of privacy based on section 14(3)(d) of MFIPPA (the “educational history” presumption) because the records had been included in the OSR pursuant to the Ministry’s Violence-Free School Policy.  The IPC acknowledged that the OSR is “the core of a student’s educational history” and held that the presumption applied.

It also rejected the requester’s claim that the “public interest override” applied.  Although it recognized that a parent’s interest in ensuring a safe environment for his or her own children and other children was a “compelling public interest,” it did not find that this interest outweighed the special privacy interest of youth at risk:  

I note that Canadian legislation aims to protect young people from negative publicity about activities that may not reflect well on them.  This policy initiative clearly underlies significant provisions about non-publication of information found in the Youth Criminal Justice Act.

Order MO-2291 (11 April 2008, I.P.C./Ont.).