Ontario civil | Privacy and Freedom of Information | Provincial privacy legislation | General principles
Public Health unit ordered forensic investigation into controversy that had arisen during applicant’s tenure leading it and, although she contributed to report on understanding that it would remain confidential, unit later decided to release entire report to media outlet. Applicant’s appeal to Information and Privacy Commissioner was dismissed, on basis of public interest override in s. 16 of Municipal Freedom of Information and Protection of Privacy Act, as was her request for reconsideration. Applicant’s application for judicial review was granted. Commissioner appealed. Appeal allowed. Application judges erred in finding Commissioner’s reasons inadequate since approach required where only s. 14 of Act was engaged, of identifying each piece of personal information protected from disclosure so that it could be redacted, was not required for analysis under s. 16 of Act. Key issue in applying s. 16 of Act was determining whether compelling public interest clearly outweighed purpose of protecting privacy, and Commissioner did not have to follow set formula in balancing purposes of providing access and protecting privacy or to specifically identify and balance each piece of protected information, as public interest was in disclosure of story told when whole of protected information was disclosed. Despite applicant’s failure to specifically rely on ss. 14(2)(e) and (i) of Act, Commissioner was alive to legitimate concerns raised by such provisions and there was no reason for Commissioner to refer to s. 14(2)(g) of Act in decision where applicant did not raise concerns as to accuracy of report. There was no basis to interfere with Commission’s finding that report contained new information or to reweigh factors relevant to assessing public interest in disclosure, including choice to take into account and place weight on unit’s assessment of public interest. Commissioner adequately addressed issue of whether any personal information should have been redacted. Commissioner’s reasonable conclusion that applicant’s privacy interest was clearly outweighed by compelling public interest should be deferred to. Commissioner reasonably exercised discretion not to reconsider decision, where reconsideration request contained new arguments and evidence.
Barker v. Ontario (Information and Privacy Commissioner) (2019), 2019 CarswellOnt 5347, 2019 ONCA 275, Paul Rouleau J.A., K. van Rensburg J.A., and L.B. Roberts J.A. (Ont. C.A.); reversed (2017), 2017 CarswellOnt 20037, 2017 ONSC 7564, F. Kiteley J., R. Tzimas J., and W. Matheson J. (Ont. Div. Ct.).
