Review Reports:
Below are the five most recent Review Reports issued by the Review Officer. Reports are generally posted within 7 to 10 days of being sent to the parties. These documents are in PDF format, so you may need to install a free version of Acrobat Reader.
Report Release Date: July 14, 2010
Public Body: Department of Community Services
Issues: Whether the Department of Community Services
[“Community Services”] properly withheld portions of the Record in
accordance with the Freedom of Information and Protection of Privacy
Act [“Act”], and in particular:
1. Whether the Record contain third parties’ personal information.
2. Whether disclosure of this information would be an unreasonable
invasion of a third party’s personal information.
3. Whether the withheld information in the Record meets the criteria
of solicitor-client privilege.
4. Whether Community Services has properly exercised its discretion
to withhold the portion of the Record under s. 16 of the Act.
Record at Issue: Pursuant to s. 38 of the Act, Community
Services has provided the Freedom of Information and Protection of
Privacy [“FOIPOP”] Review Office with a copy of the complete Record,
including the information withheld from the Applicant. At no time
are the contents of the Record disclosed or the Record itself
released to the Applicant by the FOIPOP Review Officer or my
delegated staff. The Record consists of the Applicant’s file for the
time spent in foster care, in the care of Community Services, for
the period from 1988 to 1991. The original Application for Access to
a Record was for the period 1971 to 1991. The Applicant is a former
child in care in the care of a child welfare agency prior to 1988
and those records do not form part of this Review. The Record,
therefore, is for the period of 1988 to 1992 when the Applicant was
in foster care as a child in care with Community Services.
Summary: An Applicant requested a Review of Community
Services’ decision to sever part of the Record based on the
solicitor-client privilege and third party personal information. The
Record sought is the complete file related to the Applicant while in
foster care.
Findings: The Review Officer made the following Findings:
1. Section 5(3) of the Act preserves the custom at Community
Services to give foster and former foster children access to their
children in care files. Based on Community Services’ custom to give
access to former children in care and relying on s. 5(3) of the Act,
I find the Applicant is entitled to everything s/he was given in the
1990s – liberal access to his/her entire child in care file. In
future, Community Services should continue with that custom as it is
consistent with openness, transparency and accountability to former
children in care. If an individual remains dissatisfied after that
customary procedure is completed, s/he can make a choice thereafter
to formalize the request by filing an Application for Access to a
Record under the Act with the public body and thereafter if
unsatisfied, a Request for Review with the Review Officer. I find
that it would result in a disservice to former foster children if
the customary procedure is replaced by the formalized process under
the Act.
2. The best interests of the child is the paramount consideration in
matters involving child protection, which test is reflected in the
United Nations Convention on the Rights of the Child, and the Nova
Scotia Community and Family Services Act. Every child has the right
to information about family, both foster and biological. The key
principle under protection legislation is best interests. I find
that in most instances, the best interests of children are served by
access to information about their complete family history.
3. The Children in Care and Custody Manual read together with s.
5(3) of the Act could have disposed of this request for the bulk of
information sought by the Applicant. For the remainder of the
Record, the personal information of foster parents, the Applicant
would file an Application for Access to a Record and Community
Services would have given notice to the third party foster parents
and sought their consent to release some or all of their personal
information. Community Services seeking consent of the third parties
would have been the most expeditious and respectful way to proceed.
It is not appropriate to ask the former foster child to obtain the
consent of his/her biological or former foster parents.
4. In the future, if Community Services believes a foster parent may
object, I find that its remedy is to provide him/her with timely
notice in accordance with s. 22 of the Act of its intention to
release his/her personal information and seek consent and if consent
is not forthcoming the former foster parent can file a Third Party
Request for Review.
5. Section 20 of the Act provides that it is not an unreasonable
invasion of a third party’s personal privacy if there are compelling
circumstances affecting anyone’s health or safety. I find that the
need for the Applicant to know about his/her family medical health
history and for his/her own opportunity to heal based on a medical
Representation are compelling circumstances sufficient to meet the
presumption is s. 20(4)(b) of the Act.
6. Reading sections of the CFSA as a whole establishes for the
purpose of this Review that foster parents are delegates of the
Minister. I find that while they do not fall within the definition
of salaried employees or agencies, foster parents are a child care
facility under CFSA and a member of the Minister’s staff under s.
20(4)(e) of the Act. I find that foster parents are a child care
facility and a delegate of the Minister in his/her role as
substitute parent and fall under s. 20(4)(e) of the Act and,
therefore, the presumption that release of personal information is
not an unreasonable invasion of personal privacy applies.
7. Personal information is defined in the Act in a non-exhaustive
list of factors including name, address, telephone number, race,
national or ethnic origin, family status, inheritable
characteristics, health history and anyone else’s opinion about the
individual. In the case of the Applicant, some of his/her personal
information overlaps in those categories of personal information
with his/her biological parents. One of the purposes of the Act is
to give individuals access to personal information about themselves.
Former foster children are in a unique position, which Community
Services should acknowledge and make every effort to provide them
with as much information as possible. Based on the definition of
personal information as discussed above, because the statutory
definition is not exhaustive, and based on the actual information
subject to this Review, I find that all of the information about the
Applicant’s biological family falls within the definition of his/her
personal information, access to which s/he is entitled.
8. The Representations by the Applicant, the former foster parent,
and the community organizations that provided support letters
constitute the evidence in favour of disclosure based on public
interest. In this case, I find that it is in the public interest to
provide this former foster child with the maximum amount of
information about the time s/he was in care including personal
information about the foster parents.
9. Community Services is not able to rely on the s. 16
solicitor-client exemption to refuse the Applicant access for two
reasons. First, there is nothing in the text of the letter that
constitutes advice, which is one of the essential elements for a
document to be withheld under the s. 16 exemption of the Act.
Second, I find that because the Applicant was, at the material time,
a child in care about whom the letter was written the lawyer was
acting for both the child and for Community Services. The
solicitor-client privilege belongs to both clients – Community
Services and the former foster child who is entitled as one of the
clients involved to access to this document. The other instructive
fact is that the letter, which contains no advice, refers to another
portion of the Record to which the Applicant was given unabridged
access. Community Services appears to apply the solicitor-client
exemption contained in s. 16 of the Act as if it were a mandatory
one. I find that this kind of blanket application of an exemption to
correspondence from a lawyer is not in keeping with how a
discretionary exemption should be applied.
10. Section 38 of the Act is to be given broad and liberal
interpretation. It clearly gives the Review Officer authority to
request any record and impose any requirement as I see fit. While
some of the key documents were provided, I find that Community
Services failed to respond to some of the Review Office’s requests
for information.
11. The question is not what the Applicant remembers, but what the
Applicant is entitled to by custom and under the Act.
Recommendations: The Review Officer made the following
Recommendations:
1. That Community Services release the complete child in care file
to the Applicant including all personal information about biological
parents, biological siblings, foster parents and the letter
inappropriately withheld under s. 16 of the Act.
2. That Community Services revise the wording of the Foster Care
Services Statement of Understanding Between Agency and Foster
Parents to include reference to the Act so that foster parents are
on notice that any representations of confidentiality made to them
by Community Services are not paramount to the Act.
Key Words: biological family, child in care, confidentiality,
Crown Ward, custom, delegate, discretion, expedited, family, foster
care, foster child, foster parents, manual, parents, personal
information, public interest, record, solicitor-client privilege,
third parties, video.
Statutes Considered: Nova Scotia Freedom of Information and
Protection of Privacy Act, ss. 3(1)(i), 5(3), 6, 16, 20, 21(4), 22,
27(b), 31, 38, 45; United Nations Convention on the Rights of the
Child, Articles 7.1, 8.1, 12 and 13; Nova Scotia Children and Family
Services Act.
Case Authorities Cited: Nova Scotia Review Reports FI-02-20,
FI-02-23, FI-05-08; Re House, [2000] N.S.J. No. 473 S.C.; Dickie v.
Nova Scotia (Department of Health), S.H. No. 124275; Grant v.
Torstar Corp., 2009 SCC 61; O’Connor v. Nova Scotia, 2001 NSSC 6; R.
v. Fuller, 2003 NSSC 58; Ontario Order P-1115; McLaughlin v.
Halifax-Dartmouth Bridge Commission, (1993) S.H. No. 85235.
Other Cited: Foster Care Services Statement of Understanding
Between Agency and Foster Parents; Department of Community Services’
Children in Care and Custody Manual, Section 9; Foster Care Services
online videos “Through the Children’s Eyes”; “What Makes a Good
Foster Parent”; “The Parent’s Experience”; and “Foster Families
Include Everyone”; Children and Family Services Act Regulations;
Nova Scotia Freedom of Information and Protection of Privacy Act
Regulations, Form 3.
FI-08-39
Report Release Date: March 3, 2010
Public Body: Department of Economic Development
Issue: Has the Department of Economic Development [“Economic
Development”] appropriately withheld the Record in accordance with
the Freedom of Information and Protection of Privacy Act [“Act”] and,
specifically:
Does s. 21 of the Act require Economic Development to sever the final
bid amounts for two unsuccessful proposals?
Record at Issue: Pursuant to s. 38 of the Act, Economic Development
has provided the Freedom of Information and Protection of Privacy
Review Office with a copy of the complete Record, including the
information withheld from the Applicant. At no time are the contents
of the Record disclosed or the Record itself released to the Applicant by
the FOIPOP Review Officer or her delegated staff. The responsive
Record is made up of two sections from four separate proposals
submitted in response to a Request for Proposals [“RFPs”] by three
separate companies [one company submitted two separate proposals].
Two of the proposals were successful and two were not. During the
Review process, the Applicant narrowed the focus to the final bid
amounts of the two unsuccessful proposals received from a Third Party
[Company #1].
Findings: 1. The Applicant is only interested in the final bid amounts
for the two unsuccessful bids, submitted by the same company. I find
the final bid information falls clearly within the definition of
“commercial” and/or “financial” information for the purpose of s. 21
of the Act.
2. I find that in this case the Third Party had explicitly and implicitly
provided the information on a confidential basis.
3. Economic Development has not provided any evidence and therefore
has not met its onus to show how the release of the final bid amounts
could reasonably be expected to harm or cause undue financial loss to
any person and, in particular, the Third Party.
4. I find that Economic Development has not met the threshold three
part test in s. 21 of the Act and, therefore, is not compelled to
withhold the information.
5. Economic Development successfully met its duty to assist this
Applicant while initially processing the access request.
Recommendation: Economic Development should provide the
information contained in the Record, the two final bid amounts from
the Third Party unsuccessful proponent [Company #1], to the Applicant.
Key Words: bid, business information, commercial information,
confidential, consent, duty to assist, financial information, internet,
proponent, request for proposals, RFP, significant harm, tender, third
party, undue financial loss or gain.
Statutes Considered: Nova Scotia Freedom of Information and
Protection of Privacy Act s. 2, 5, 7, 21(1), 21(4), 38, 45(1).
Case Authorities Cited: NS Review Reports FI-07-38, FI-07-12;
McLaughlin v. Halifax-Dartmouth Bridge Commission (1993), CanLII
3116 (NS C.A.); McCormack v. Nova Scotia (Attorney General) (1993)
CanLII 3401 (NSSC); Atlantic Highways Corporation v. Nova Scotia
(1997), 162 N.S.R.(2d) 27; BC Order 331-1999; Chesal v. Nova Scotia
(Attorney General), [2003] NSCA 124.
Other Cited: Atlantic Provinces Standard Terms and Conditions Goods
and Services, effective 2007 April 1, s. 23.
Report Release Date: January 26, 2010
Public Body: Department of Justice
Issues: Whether the Department of Justice [“Justice”] has appropriately withheld the Record (DVDs) in full in accordance with the Freedom of Information and Protection of Privacy Act [“Act”] and, in particular:
1.Whether s. 20 of the Act requires Justice to withhold the DVDs in full or in part because disclosure of any personal information on the DVDs would be an unreasonable invasion of a third party’s personal privacy.
2.Whether s. 15(1)(c) of the Act allows Justice to withhold the DVDs in full because release of the DVDs would harm the effectiveness of investigative techniques or procedures currently used in law enforcement.
3.Whether s. 15(1)(e) of the Act allows Justice to withhold the DVDs in full because release of the DVDs could reasonably be expected to endanger the life or physical safety of a law-enforcement officer or any other person.
4.Whether s. 15(1)(i) of the Act allows Justice to withhold the DVDs in full because the release of the DVDs would be detrimental to the proper custody, control or supervision of a person under lawful detention.
Record at Issue: Pursuant to s. 38 of the Act, Justice has provided the Freedom of Information and Protection of Privacy Review Office with a copy of the complete Record, which is all of the information withheld from the Applicant. At no time are the contents of the Record disclosed or the Record itself released to the Applicant by the Freedom of Information and Protection of Privacy Review Officer or her delegated staff.
The Applicant was provided with a redacted copy of the paper portion of the responsive Record. The Form 7 Request for Review did not raise any issues with respect to the severances made. The only portion of the responsive Record under Review is a series of DVDs that have been withheld in full. The Record consists of 11 disks [DVDs], each representing a specific date. There are a total of 23 separate segments on the DVDs of various length and quality, some with sound – audio and video – and some with only video.
At Justice’s request, the Record – the full set of the original DVDs – has been returned to Justice with this Review Report at the conclusion of the formal Review.
Findings: The Review Officer made the following findings:
1.The original responsive Record included paper files as well as the DVDs. Justice released a redacted copy of the paper Record to the Applicant. The Applicant did not seek a Review of the severances applied to the paper files. The only Record at issue was the 11 DVDs.
2.Justice withheld all of the DVDs in what appears to be the application of a blanket exemption despite its claim it does not use blanket exemptions. Justice’s lack of specificity with respect to which exemption was being applied to which portion of the Record [to each of the 43 segments] and failure to provide evidence or explanation to support the claim of harm under s. 15 demonstrates that it is probable that Justice applied blanket exemptions to the DVDs. In the last Review that has come before this Office involving videotapes in a correctional setting the Record had been withheld in full and Justice at that time stated that it never released videotapes.
3.The faces, bodies and voices [of employees of two public bodies and of other inmates that are captured in the video images and the audio track on DVDs] do fall within the definition of personal information.
4.The third parties on the DVDs are employees of Justice and health care workers. The latter provide medical services at the correctional facility under an arrangement between a district health authority and Justice. Those visible on the DVDs are working in their capacity as professionals working for a public body. While the workers’ images are their personal information, an analysis under s. 20 concludes that the presumption that there is no invasion of personal privacy applies because the personal information is captured in the course of their work as employees of a public body.
5.At all material times on the DVDs, the employees are seen to be engaged in routine institutional enforcement procedures and not covert investigative techniques. The one technique cited by Justice as potentially being compromised was the use of hand signals; two of which are apparent from my review of the DVDs but Justice has not specified the uniqueness or covertness of these techniques. Although I cannot reveal the content of the Record, similar information is widely available and publicly available through the internet.
6.The Applicant successfully argued that three of the relevant circumstances that a public body was required to consider under s. 20(2) were applicable: the disclosure is desirable to allow for public scrutiny of the activities of a public body, disclosure would promote the health of the Applicant and the personal information of the Applicant is relevant to a fair determination of his/her rights.
7.The Applicant relied on ss. 7 and 11(d) of the Charter to support his/her claim that release of the Applicant’s personal information was relevant to a fair determination of his/her rights.
8.Justice failed to provide any evidence to demonstrate that s. 20(2)(e) – a third party would be exposed unfairly to harm if the information was disclosed – applied to the Record.
9.Because s. 15(1)(k) was not claimed by Justice either in its decision letter to the Applicant nor in its Representations as a late exemption, for example, any argument to withhold the Record based on harm to the security of the property or system has not been considered.
10.In order for Justice to rely on exemptions in s. 15 of the Act it must demonstrate that the release of the Record could reasonably be expected to harm, prejudice, reveal, endanger, deprive or be detrimental. Justice failed to provide an evidence to meet that test. The harm cannot be speculative. The public body must show evidence that links the release of the Record to the harm expected to occur.
11.It is clear from the Record that additional recordings were taken with a handheld video camera, which recordings have not been produced as part of the responsive Record placing search at issue.
12.The credibility of an administrative oversight body such as the Review Officer is based on its independence, impartiality and consistency. To that end, it is appropriate to rely on precedents that are relevant to any Review before the Review Officer.
13.Section 38 of the Act gives the Review Officer the power to request the production of all information deemed to be relevant for examination during the course of the Review process.
Recommendations: The Review Officer recommended the following:
1.That Justice release the Record to the Applicant severing the images of third parties, such as any other inmates if any, but not any of the correctional or health care employees.
2.Alternatively, and as a minimum step, that Justice permit the Applicant, the Applicant’s agent, a lawyer, and/or the Expert witness to view the DVDs onsite or at an agreed location as many times as needed to satisfy their needs.
3.That Justice search again for additional recordings taken with the handheld video camera, dates for which recordings are being provided to Justice under a separate cover.
4.If and when the additional videos are found, that Justice make an access decision to the Applicant consistent with recommendations 1 and 2, above.
Key Words: agent, audio, blanket exemption, camera, cell, confidential information, constitutional, correctional facility, disks, duty, DVD, employee, examination, Expert witness, fair trial, harm, health care workers, inmates, institutional, investigative techniques, mental health, on-site, privacy, power, precedents, prisoners, production, psychiatric, regulation, relevant, search, security, surveillance, technology, unreasonable invasion, video.
Statutes Considered: Nova Scotia Freedom of Information and Protection of Privacy Act s. 2; 3(1)(b); 3(1)(e); 3(1)(k); 3(1)(i); 4(3)(a); 5; 15(1)(c); 15(1)(e); 15(1)(i); 20(1); 20(2); 20(4); 38; 41; 42.
Case Authorities Cited: NS Review Reports FI-07-72; FI-07-59; FI-04-09(M); Ontario Order M-44; Re, House, [2000] N.S.J. No 473 (S.C.); Cuddy Chicks Ltd. V. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Ontario Order MO-2300; Canada (Information Commissioner) v. Canada (Prime Minister) (T.D.), [1993] 1 F.C. 427.
Other Cited: Canadian Charter of Rights and Freedoms, Constitution Act, Part 1, 1982, ss. 7 and 11(d); Nova Scotia Freedom of Information and Protection of Privacy Act Regulations, Forms 10 and 11.
Report Release Date:January 18, 2010
Public Body: Department of Community Services
Issues: Whether the Department of Community Services [“Community Services”] has properly withheld portions of the Record in accordance with the Freedom of Information and Protection of Privacy Act [“Act”], and, in particular:
1.Whether the Record contains the personal information of a third party or third parties.
2.Whether the Record contains the personal information of the Applicant.
3.Whether s. 20 of the Act requires Community Services to withhold the Record in full. Alternatively, whether Community Services could have severed portions of the Record or provided the Applicant with a summary of the Record.
4.Whether the Review Officer will accept Community Services’ late exemption claim, the Representations for which were provided in-camera.
5.If yes, whether the late exemption claimed allows Community Services to withhold the Record in part and whether Community Services properly exercises its discretion in applying the late exemption to the Record.
6.Whether the information included in the disclosure decision was open, accurate and complete.
Record at Issue: Pursuant to s. 38 of the Act, Community Services has provided the Freedom of Information and Protection of Privacy Review Office with a copy of the complete Record, including the information withheld from the Applicant. At no time are the contents of the Record disclosed or the Record itself released to the Applicant by the Freedom of Information and Protection of Privacy Review Officer or her delegated staff. The Record at issue consists of two handwritten letters written by a third party. The Applicant has confirmed that s/he is seeking access to the letters in full, which includes access to his/her own personal information, and the personal information of third parties.
Findings: The Review Officer made the following findings:
1. The Record contains the personal information of third parties. The bulk of the information contained in the Record is the personal information of third parties, which if released would be an unreasonable invasion of the third parties’ privacy, and as such the Applicant is not entitled to have access to any third party personal information.
2. There are parts of the Record that contain the Applicant’s personal information to which, prima facie, s/he is entitled. During the Representation phase of the Review, Community Services made a submission that in addition to s. 20, the Record should be withheld under the late exemption claimed.
3. A great deal of information provided to Community Services is often provided on a confidential basis and is protected by law. However, writing to Community Services about confidential matters does not necessarily protect the whole of the communication. The subsections of s. 20 relied upon by Community Services serves to protect certain information from disclosure.
4. Because of the nature of the letter and to whom it is directed, I find that a third party supplied most of the information in the Record on a confidential basis. This is supported by the information provided by Community Services that the recipient of the letter forwarded it to child protection. The portion of the Record that contains the personal information of the Applicant, however, cannot be withheld because part or most of the Record is personal information about a third party. Based on that finding, Community Services was obliged to consider providing the Applicant with a summary of his/her personal information contained in the Record. Community Services argues that there is no way to sever the Record without disclosing the identity of a third party. I agree that severing the handwritten Record could disclose the identity of a third party. I find, however, that a summary of the portions containing only the Applicant’s personal information can be prepared for the Applicant without the disclosure of third party personal information, the release of which could compromise a child protection matter.
5. Community Services provided sufficient information to the Review Officer to support a finding that its Representations could be considered in-camera with respect to a late exemption and that the late exemption remain confidential.
6. I find that because s. 20 is applicable to all of the third parties’ personal information it is not necessary for me to consider the applicability of the late exemption to that information.
7. In regards to the applicability of the late exemption to the Applicant’s personal information, I consider there was insufficient evidence provided to support the reliance on the late exemption. In order for that exemption to apply a public body must provide evidence that there is a real and probable connection between the late exemption and the evidence in the case. There was some evidence that supported considering the matter in-camera. Sufficient evidence demonstrating that the late exemption ought to apply, however, was not provided to the Review Officer.
8. I find that Community Services in its initial decision did not meet the standard of its duty to assist the Applicant. This is because Community Services merely cited s. 20 and s. 20(1) of the Act and failed to clarify which subsections it was applying and therefore did not meet the test of “open, accurate and complete.” This was later fully rectified when the file was transferred from a regional delegated office to the main FOIPOP office at Community Services during the course of the Review.
Recommendation: The Review Officer recommended the following:
That Community Services prepare a summary of the Applicant’s personal information contained in the Record.
To this end, a sample of what the summary could look like has been prepared and provided to Community Services only with this Review Report. This summary is intended to demonstrate that such a summary can be prepared that would include the personal information of the Applicant that may have been provided by a host of individuals and would not identify the third party.
Key Words: balance, confidential, handwritten, in-camera, letters, mandatory, open, accurate and complete, personal information, privacy, probable, right of access, summary, third party, third party personal information.
Statutes Considered: Nova Scotia Freedom of Information and Protection of Privacy Act ss. 2, 5, 3(1)(i), 3(1)(l), 5(2), 20, 20(1), 20(2), 20(2)(c), 20(2)(f), 20(3)(a), 20(3)(c), 20(3)(d), 20(4), 38, 44, 45(2).
Case Authorities Cited: NS Reports FI-07-75, FI-06-71(M); BC Order F08-02; ON Orders PO-2230, PO-2706, PO-2230; Re House, [2000] N.S.J. No. 473 (S.C.); McCormack v. Nova Scotia (AG), [1993] N.S.J. No. 625; Keating v. Nova Scotia (AG), 2001 N.S.S.C. 85.
Report Release Date: December 3, 2009
Public Body: Department of Community Services
Issues: Whether the Department of Community Services [“Community Services”] appropriately applied the Freedom of Information and Protection of Privacy Act [“Act”] and, in particular:
1. Whether the information
withheld is “personal information” under the Act.
2. If yes, whether Community Services is required to sever the
information as its release would constitute an unreasonable invasion of
personal privacy.
3. Whether s. 16 allows Community Services to sever information from the
Record.
4. Whether Community Services properly exercised its discretion under s.
16 of the Act.
5. Whether the information included in the disclosure decisions was
open, accurate and complete in accordance with the duty to assist.
Record at Issue: Pursuant to s. 38 of the Act, Community Services has provided the Freedom of Information and Protection of Privacy [“FOIPOP”] Review Office with a copy of the complete Record including the information withheld from the Applicant. At no time are the contents of the Record disclosed or the Record itself released to the Applicant by the FOIPOP Review Officer or her delegated staff. In FI-08-35 the Record under Review is one document, a running record related to the Applicant created by Community Services. In FI-08-54 the Record is composed of four documents: two emails, another document and the running record at issue in FI-08-35. As a result of the duplication of the Record under consideration in the latter, the two matters were reviewed together.
Findings: 1. As a result of the four decisions and four releases of parts of the Record, I find Community Services has provided the Applicant with generous access by:
a. Only severing the documents where it has relied on the solicitor-client privilege exemption rather than withholding them in full. [pages 6 and 9]
b. Only severing under s. 20 of the Act to very specific information while at the same time releasing employee names even though Community Services believes that in accordance with FI-06-69 they could have withheld them under s. 18.
2. With respect to employees of banking institutions, these names do not fall within the definition of personal information and can be released [pages 1, 2, 10, 12 and 13].
3. The personal information of the other third party is personal information within the definition of the Act and was appropriately severed by Community Services. Section 20(3)(c) establishes a presumption of an unreasonable invasion if the information relates to a third party’s eligibility for social assistance. No Representation was received from the Applicant to meet the onus to demonstrate release of the third party’s personal information would not result in an invasion of personal privacy [page 5].
4. Community Services has been subjected to repeated demeaning and condescending language from the Applicant particularly in relation to the department’s abilities in processing an Application for Access to a Record. This is wholly inappropriate and should not be tolerated as behaviour inconsistent with and prohibited by the Respectful Workplace Policy [“Policy”] that applies to all provincial government workplaces. The Review Office has a practice that if any applicant through his or her behaviour does not comply with the Policy, in order to preserve the wellbeing of all employees, access to the Review Office will be restricted. In the opinion of the Review Office, were a public body to adopt a similar policy, such a policy would not be considered inconsistent with the duty to assist under the Act.
5. Whether or not a public body has met its duty to assist is an issue that can be raised by an Applicant on his or her Form 7, in his or her Representations or by the Review Office, where appropriate. Throughout this Application for Access to a Record, it appears that this Applicant has presented him/herself in such a manner as to make it nearly impossible for Community Services to meet all of his/her demands. In such circumstances, applicants must realize that under the legislation they too bear some burden to show that the release of personal information of third parties would not be unreasonable. Applicants also have a responsibility for being reasonable and respectful including the duty to provide sufficient particulars to identify the Record. The public body under s. 7 of the Act – the duty to assist – has to make every reasonable effort to be open, accurate and complete. I find that, in the circumstances of this case, Community Services has more than met its duty to assist in this case.
Recommendations: 1. Community Services release a copy of the Record as requested by the Applicant with the names of employees of banks included but with the personal information of the other third party severed.
2. Community Services re-confirm its decisions to withhold the personal information of one third party and the information for which solicitor-client privilege has been claimed.
Post Note: The public body in this case is Community Services. As part of its Representations, Community Services has appropriately argued that this case demonstrates the need for a provision with respect to trivial, frivolous, vexatious or not made in good faith use of the Act. This would require an amendment to the Act to enable administrative decision-makers including the Review Office to refuse a Request for Review or a complaint where there is clear evidence that the request or complaint is trivial, frivolous, vexatious or not being made in good faith. This type of discretionary provision is typical in ombudsman legislation including in Nova Scotia. It is a proposed provision in the new draft Personal Health Information Act for both FOIPOP Administrators and the Privacy Review Officer. A copy of this Review Report is being shared with the Department of Justice to request that it give strong consideration to proposing such an amendment in any future legislative review of the governing access and privacy statutes to grant this important discretionary provision.
Key Words: broad and liberal, business identity information, contact information, employees, exhaustive, frivolous, not made in good faith, personal information, precedent, running record, solicitor-client privilege, trivial, unreasonable invasion of personal privacy, vexatious.
Statutes Considered: Freedom of Information and Protection of Privacy Act, ss. 2, 3(1)(i), 5, 7, 16, 20; Ontario Freedom of Information and Protection of Privacy Act, s. 2(3); Personal Information Protection and Electronic Documents Act.
Case Authorities Cited: FI-08-12; Dickie v. NS (Department of Health), [1999] NSCA 7239; FI-08-66; FI-07-58; FI-06-69.
Other Cited: Nova Scotia Government’s Respectful Workplace Policy.
Report Release Date: December 2, 2009
Public Body: Atlantic Lottery Corporation
Issues: Whether
the Atlantic Lottery Corporation [“ALC”] appropriately
applied the Freedom of Information and Protection of Privacy Act[“Act”]
and, in particular:
1. Whether
the ALC properly exercised its discretion in severing
information under s. 15(1)(a), 15(1)(c) or 15(1)(k).
2. Whether
the release of the personal information contained in the Record would
constitute an unreasonable invasion of personal privacy pursuant to s.
20(1).
3. Whether
the information included in the disclosure decision was open, accurate
and complete in accordance with the duty to assist [s. 7].
Record at Issue: Pursuant to s. 38 of the
Act, ALC has provided the
Freedom of Information and Protection of Privacy [“FOIPOP”] Review
Office with a copy of the complete Record including the information
withheld from the Applicant. At no time are the contents of the
Recorddisclosed or the Record itself released to the Applicant by the
FOIPOP Review Officer or her delegated staff.
Part 1 and 4 of the Record – the ALC Investigation Reports
Reports from the investigations into retailer/ticket seller and ALC employee wins launched by the ALC during 2005. Note the Parts of the Record in this list for #1 and #4 are the same documents. The reports from the ALC investigations for the provinces of Newfoundland, Prince Edward Island and New Brunswick have been released, with severances pursuant to s. 15 and 20. The ALC has not released any of its 83 investigations for the province of Nova Scotia that are still under investigation by the RCMP.
9 documents (encompassing 25 pages) are emails that are responsive.
56 documents (encompassing 510 pages) are “investigation records.”
Part 2 of the Record - the ALC Press Releases of Big Winners
All press releases about winners of $25,000 or more in any game sponsored by the ALC since January 1, 2001, for all four Atlantic Provinces but excluding news releases currently available at www.alc.ca.
838 documents (encompassing 867 pages) are “winners media releases.”
Part 3 of the Record – the ALC Verification for Retailers’ Wins
Files, including but not limited to, the documents related to verifying the wins of the 44 retailers who claimed prizes of at least $25,000 between January 1, 2001 and December 31, 2006, for Newfoundland, Prince Edward Island and New Brunswick (except 4). The ALC has not released any of the verification for Retailers’ Wins for the province of Nova Scotia that are still under investigation by the RCMP.
48 documents (encompassing 450 pages) are “win verification” files.
Part 4 of the Record – see Part 1 above
Documents related to the 25 investigations the ALC conducted between January 1, 2001 and December 31, 2006. ALC acknowledged in its December 14, 2007 decision that a consultant study identified further investigation documents that were responsive to the Applicant’s Application for Access to a Record, and so expanded the scope of this last item. These documents appear to be identical to the documents in Part 1, and for ease of reference, I will address both as Part 1 in the remainder of this Review Report.
Findings: 1.The ALC provided a copy of the part of the Record related to the New Brunswick investigations during the final stage of the formal Review. On the Record, the ALC claims a new exemption, under s. 14 “advice”, though there is no reference to it in its decision letter to the Applicant. This late exemption is being made over two years since the original Application for Access to a Record and is well beyond the policy of the Review Officer for the time in which a late exemption can be claimed. In any event, based on s. 14(3) of the Act, the exemption in s. 14(1) cannot apply to a record that has been in existence for over five years, which this Record has been.
2. The ALC’s internal investigation information, which was handed over to the RCMP for its investigation, does not fall within the definition of law enforcement information as defined by the Act. The ALC has the ability to investigate under s. 30 of the Gaming Control Act but that legislation does not provide for a penalty or sanction being imposed at the conclusion of the investigation. The information held by the ALC in relation to its internal investigation does not fit within the definition of law enforcement and therefore neither s. 15(1)(a) nor s. 15(1)(c) exemptions of the Act apply.
3.The ALC failed to demonstrate there would be any harm to the security of property or system if the information was released and therefore the exemption in s. 15(1)(k) of the Act does not apply.
4.The ALC has recently produced the New Brunswick investigation reports’ portion of the Record because the RCMP investigation in New Brunswick is now complete. The portion of the Record that is outstanding is all 83 ALC internal investigation reports in Nova Scotia. The RCMP advised the ALC not to release the Nova Scotia portion of the Record. No affidavit was provided by the RCMP. The RCMP do not have the authority to determine if something is available from the ALC under the provincial access to information legislation. That decision rests solely with the ALC and is subject to a Request for Review to the Review Officer. A policing body’s reluctance for a public body to release what it may consider relevant documentation to one of the policing body’s ongoing investigations is not the test for a public body to apply to its own Record.
5. While records related to Newfoundland and Labrador, Prince Edward Island and New Brunswick were part of the Application for Access to a Record and have been provided to the Applicant, the ALC has claimed a blanket exemption of all 83 Nova Scotia ALC internal investigations and, as such, is more comparable to the Ontario case where the Ontario lottery corporation had refused all of its record and the Commissioner ordered its release.
6. The Applicant focused his/her concerns regarding the s. 20 exemptions to the information severed in the winners media releases, as such, the other severances were not examined.
7. The ALC’s Policy states that it does not supersede access to information legislation. That is correct and in the case of at least Nova Scotia, the right of access to information under the Act supersedes the ALC Policy.
8. The ALC’s Policy governs how long the personal information the ALC collects from winners at the time of win verification can be released publicly by the corporation: one year without further consent being obtained. The Policy dictates how long the ALC can use the personal information. It does not determine if someone has a right to access a record from a public body, the ALC, under the Act.
9. The information in the Record, severed by the ALC under s. 20 of the Act did fall within the definition of personal information of the winners.
10. Because the third party winner’s personal information has already been in the public domain in the same format [media release], release of the information is presumed not to constitute an unreasonable invasion of personal privacy and, therefore, the ALC is not required to withhold the information requested.
11. In this age of information, if the ALC believes that its Prize Claim Form leads winners to believe that after the passage of one year, their personal information would obscure over time, it is mistaken as most of the information is available on the internet. The Prize Claim Form makes no reference to the Act.
Recommendations: The Review Officer recommends that:
1. The
ALC release:
a. Any
information previously withheld under s. 15.
b. All
information that was severed from the winners media releases.
2. The ALC
re-affirm its decision to withhold personal information from the
following documents, the severances which were not under Review:
a. The
investigation Record and all related documents.
b. The win
verifications.
3. The ALC
reconsider its decision to apply the discretionary exemption at s. 14 in
the closing stages of this Review, and release the information severed
pursuant to s. 14 in the New Brunswick investigation Record.
4. The ALC
amend its Prize Claim Form to make it clear that the personal
information provided to the ALC as part of the win verification process
is subject to the provisions of the Freedom of Information and
Protection of Privacy Act.
5. For
greater clarity, the ALC amend its Winners Information Publicity Policy
to make it clear that its agreement with winners regarding the
collection and use of their personal information is subject to the Nova
Scotia Freedom of Information and Protection of Privacy Act and
amend its consent forms to make reference to and subject to the
provisions of the Freedom of Information and Protection of Privacy Act.
6. The
ALC make it clear in all documentation with winners that the
ALC’s promise to contain the use it makes of personal information
gathered during the win verification process, is distinct from someone
making an application for information, which will be governed as an
access to information matter [disclosure] under the Act.
Key Words: access, balance, burden, disclosure, discretion, duty to assist, harm, indemnity, investigation, law enforcement, lottery, media, personal information, PIA, Privacy Impact Assessment, policy, privacy, reasons, release, representation, security, Wayback Machine, winners.
Statutes Considered: Freedom of Information and Protection of Privacy Act, ss. 2, 3(1)(e), 3(1)(i), 4(2)(b), 5, 7, 15(1)(a),(c),(k), 20(1), 20(3)(f), 20(4)(a), 26, 27, 45, 45(1), 45(2); Canada Business Corporations Act; Gaming Control Act, ss. 10(c), 35; Prince Edward Island Lotteries Commission Act; Newfoundland and Labrador Lotteries Act; New Brunswick Gaming Control Act; Alberta Freedom of Information and Protection of Privacy Act, s. 1(h).
Case Authorities Cited:
FI-07-58, FI-07-62,
FI-08-66, Ontario Order
P-1833, Ontario Order P-352,
FI-02-53, Ontario Order PO-2657, British
Columbia Order F06-18, Ontario Order PO-1799,
Re House, [2000]
N.S.J. No 473,(S.C.).
Other
Cited: “Citing Late Exemptions,” Nova
Scotia Freedom of
Information and Protection of Privacy Review Office; IPC Practices,
Number 9, Ontario Information and Privacy Commissioner; Atlantic Lottery Corporation Prize Claim Form; ALC Winners Information Publicity Policy.