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Exemptions

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Draft By-Laws, Records of Closed Meetings (s.6 MFIPPA)

Section 6 of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) is a discretionary exemption. There is no comparable section in Freedom of Information and Protection of Privacy Act (FIPPA). It is intended to protect the free discussion of sensitive subjects where legislation allows a municipality or local board to discuss those subjects in camera. This exemption cannot be relied on if the records are over 20 years old. The compelling public interest override in s.16 does not apply to this exemption.

Draft By-laws

s.6(1)(a)

This exemption permits the head to deny access to a draft by-law or private bill, unless the draft has been considered in an open meeting. The term "considered" involves examination or deliberation. Only the draft by-law itself would be exempt as this provision does not exempt from disclosure records that would reveal the contents of drafts.

For example: Disclosing background records used in preparing the draft by-law may allow an accurate inference to be drawn about the nature of the draft by-law but this exemption can not be applied to prevent their release.

Closed Meetings

s.6(1)(b)

This subsection permits the head to prevent disclosure of a record which reveals the substance of deliberations of a closed meeting of a council, board, commission or other body or a committee of one of them. In order to qualify for this exemption, the institution must establish:

that a meeting was held in the absence of the public, and
that a statute authorizes the holding of the meeting in the absence of the public, and
that disclosing the record would reveal the actual substance of deliberations of the meeting.

The term "substance of deliberations" has been interpreted to mean the theme or subject matter that has been considered through discussion. If the subject matter of the deliberations is later considered in an open meeting, this exemption no longer applies to the record. However, a distinction has to be made between the results of the deliberations and the subject matter. A mere disclosure or reporting of a decision made at an in-camera meeting cannot be characterized as a "consideration" of the subject matter of the in-camera deliberations. As well, a discussion of the product or results of deliberations does not necessarily reveal details about subject matter discussed in-camera.

For example: A consolidated budget which was deliberated in an in-camera meeting was formally adopted at a public meeting. Because the line items of that budget were not discussed at the public meeting, their substance would not have been revealed.

Cabinet Records (s.12 FIPPA)

Section 12 of Freedom of Information and Protection of Privacy Act (FIPPA) is a mandatory exemption. There is no comparable section in Municipal Freedom of Information and Protection of Privacy Act(MFIPPA). Its purpose is to prohibit disclosure of records where disclosure "would reveal the substance of deliberations of an Executive Council or its committees". The right to claim this exemption is not restricted when the record has been disclosed without the knowledge of the institution.

"Executive Council" means Cabinet.

The exemption applies to:

Cabinet and committees of Cabinet including: Policy and Priorities Board, Management Board, Legislation and Regulations, and Cabinet committees established for various policy areas or that are constituted from time to time.
Records not sent to Cabinet or its committees, if disclosure of the record would permit an accurate inference concerning the substance of deliberations of Cabinet or its committees.

The exemption does not apply to:

Records sent to Cabinet in a manner that is outside the normal Cabinet submission process. For example, the exemption does not apply where a non-governmental third party sends a proposal directly to Cabinet.

It is not necessary to show that any injury would result from disclosure in order to claim the exemption.

The compelling public interest override in s.23 does not apply to this exemption.

Substance of Deliberations

s.12(1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberation of Cabinet or its committees, including certain records referred to in clauses (a) through (f). The use of the word "including" indicates an expanded definition of the types of records which are deemed to qualify as subject to the exemption, regardless of whether their disclosure would reveal the substance of deliberations of Cabinet. At the same time, the types of records listed in clauses (a) through (f) are not the only ones eligible for the exemption. Any record whose disclosure would reveal the substance of deliberations of Cabinet or its committees qualifies for the exemption in s.12(1). Only in rare circumstances would a record which has never been placed before Cabinet reveal the "substance of deliberations" of Cabinet.

Agendas and Minutes

s.12(1)(a)

An agenda, minute or other record of the deliberations or decisions of the Cabinet or its committees is exempt. "Other records" have to be of the same nature as an agenda or minute.

Policy Options and Recommendations

s.12(1)(b)

A record containing policy options or recommendations submitted or prepared for submission, to Cabinet or its committees is exempt. This includes a Cabinet submission (or policy submission) that proposes alternative courses of action to resolve a problem, provides discussion of the merits of the alternatives and makes recommendations.

There must be evidence that the record either was sent to Cabinet for consideration or was prepared with the specific intention of presenting it to Cabinet.

Background Explanations and Analyses

s.12(1)(c)

This subsection provides an exemption for records that do not contain policy options or recommendations referred to in s.12(1)(b), but that do contain background explanations or analyses of problems submitted or prepared for submission to Cabinet or its committees for consideration in making decisions before those decisions are implemented. For this exemption to apply, it is not enough for the issues to have been considered, but rather the record itself must have been submitted or prepared for submission to Cabinet for its consideration.

A Cabinet submission is sometimes accompanied by a record which provides a background explanation or analysis of the problem which the Cabinet submission is intended to address. Such accompanying material is only exempt from disclosure under this subsection until Cabinet has decided the course of action it will take in relation to the issue and the decision has been implemented. A decision has been implemented when steps have been taken to give effect to the decision.

For example: Cabinet may decide to introduce legislation, but the decision is not implemented until the legislation is tabled in the Legislative Assembly.

Even though not exempt under this subsection, background explanations and analyses may be exempt if these records would reveal the "substance of deliberations" of Cabinet.

Consultation Among Ministers

s.12(1)(d)

This subsection provides an exemption for records used for or reflecting consultation among Cabinet Ministers on matters relating to making government decisions or formulating government policy. Such records would usually be memoranda to and from ministers and minutes of meetings of ministers. Records not exempt would include those used for consultations among public servants.

Briefing to Minister

s.12(1)(e)

This subsection provides an exemption for a record to brief a Cabinet Minister on matters that currently are, or are proposed to be, brought before Cabinet or its committees, or that are the subject of consultation among ministers relating to government decisions or formulating government policy. Such records are ordinarily prepared by the institution’s staff or the minister’s political advisors and would typically contain information that would inform the minister of the essential facts and circumstances respecting a matter. An index or list of topics or briefings considered by a minister would not contain sufficient information to fall within the subsection.

Briefing notes should include information on why the note was prepared. This is particularly important if the issue is before Cabinet or its committees (e.g. Management Board of Cabinet) and a claim is made that the record should be exempt under s.12.

Draft Legislation

s.12(1)(f)

Draft legislation (including regulations) is exempt from disclosure. However, this subsection only applies where disclosure of the record would reveal the substance of deliberations of Cabinet. The exemption does not, therefore, inhibit the practice followed by many ministries of distributing legislation for comment to interested parties when the draft legislation is under development by a ministry but has not yet been submitted to Cabinet. Where the draft has been considered by Cabinet, Cabinet may consent to distribution of the draft for comment.

Exceptions to Exemption for Cabinet Records

Documents More Than Twenty (20) Years Old

s.12(2)(a)

A head shall not refuse to disclose a record under s.12(1) where the record is more than 20 years old. This subsection does not place an obligation on an institution to retain a record for 20 years. Record retention schedules will be followed in determining the appropriate disposition of Cabinet records.

Consent of Cabinet

s.12(2)(b)

The Cabinet for which, or in respect of which, the record has been prepared can consent to access being given to a Cabinet record before the 20-year period has expired. Consent will normally be reflected in a Cabinet minute.

This exception to the exemption only applies to the Cabinet for which the record was prepared. One Cabinet cannot consent to the release of another’s records. A Cabinet is considered to have changed where there has been, for example, an election or a change of government.

Subsection 12(2)(b) does not impose a mandatory requirement but rather provides the head with discretion to seek Cabinet consent where he/she feels a record could be released and where a reasonable expectation may exist that Cabinet will not withhold its consent.

The following are factors that the head might consider in deciding whether to seek the consent of Cabinet to the disclosure of a record:

the subject matter;
whether or not the government policy contained in the record has been announced or implemented;
whether the record would reveal the nature of Cabinet discussion on the position of the institution;
whether the record has, in fact been considered by Cabinet.

The head has a duty in every case to consider whether to seek Cabinet consent. On an appeal, the institution must be able to present evidence that the head has considered the seeking of consent. Generally, however, where a body such as the Cabinet of a previous government no longer exists it will not be practical to seek its consent to disclosure.

Advice or Recommendations (s.13 FIPPA / s.7 MFIPPA)

Subsection 13(1) Freedom of Information and Protection of Privacy Act (FIPPA)/s.7(1) Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) provides a discretionary exemption for records where disclosure would reveal the advice or recommendations of officers or employees of institutions or of consultants retained by an institution. Officers or employees include those persons who work for an institution or who perform duties under a contract of employment. The advice of an officer or employee of another institution cannot be exempted under this section, nor can advice of a volunteer.

FIPPA/MFIPPA applies to this exemption, except for the records over 20 year old that would qualify for the subsection 3 exception.

Advice and Recommendations

s.13(1) FIPPA / s.7(1) MFIPPA

Please note: the wording of FIPPA/MFIPPA differs somewhat for this section

The exemption is for advice or recommendations. There is some overlap between the terms advice and recommendations. Recommendations refers to formal recommendations about courses of action to be followed which are usually specific in nature and are proposed mainly in connection with a particular decision. Advice refers to less formal suggestions about particular approaches to take or courses of action to follow. The advice or recommendations must be communicated between individuals employed by or in the service of the institution, and must be made in the course of the deliberative process of decision-making and policy-making. If an accurate inference concerning the advice given may be drawn from a record, it would be exempt. An employee’s memo to file on the other hand, has not been communicated and would therefore not be included in this exemption.

For example: A draft letter containing advice which is communicated to another person may be advisory, but where there is no communication of the draft letter (such as with a letter never sent but simply filed), it does not fall under the exemption.

Advice must contain more than mere information. Advice and recommendations, however, do not cover the whole range of activities carried out by employees of institutions in the course of policy development, administration of programs, operation of facilities and adjudication. Advice pertains to the submission of a suggested course of action which will be accepted or rejected during the deliberative process.

For example: Draft reports or briefing materials not intended for Cabinet or not qualifying for the closed meeting exemption available to local institutions, would normally fall within this exemption.

This exemption is not time limited. A record may continue to be exempt under this exemption, even though an institution may have completed its decision-making on a matter. However, the fact that a decision on the subject-matter of the advice has been made is one of the factors that the head should consider in exercising his/her discretion to disclose the record.

The Exceptions

Section 13(2) FIPPA / s.7(2) MFIPPA requires that the head shall not refuse, under s.13(1) FIPPA / s.7(1) MFIPPA, to disclose specified types of records and information despite the exemption contained in s.13(1) FIPPA / s.7(1) MFIPPA. These "exceptions" are intended to insure that factual or statistical information is publicly available. Where factual or statistical information and advice and recommendations are contained in the same record, the advice and recommendations may be severed and withheld. However, severing may not be possible and the document withheld in whole, where the factual information is so intertwined with the advice and recommendations that it is not possible to disclose factual information without disclosing exempt information.

In addition, subsection 13(2) FIPPA / s.7(2) MFIPPA requires that certain reports, studies, plans and reasons for final decisions be released, even though they may contain advice or recommendations.

It should be noted that subsection 13(2) FIPPA / s.7(2) MFIPPA is an exception only to s.13(1) FIPPA / s.7(1) MFIPPA. Therefore, a record such as an environmental impact statement which contains advice or recommendations cannot be exempt under subsection s.13(1) FIPPA / s.7(1) MFIPPA. It may, however, be covered by other exemptions.

A "report" or "study" within subsection 13(2) FIPPA / s.7(2) MFIPPA means a completed document ready for presentation and would not include working papers used in preparation such as notes and preliminary drafts.

Factual Material

s.13(2)(a) FIPPA / s.7(2)(a) MFIPPA

Records or parts of records containing factual material must be disclosed.

"Factual material" means a coherent body of facts which can be separated from the rest of the advice or recommendations, for example, an appendix of factual information supporting a policy document. Where factual material and advice or recommendations are contained in the same record, the advice or recommendations may be severed and withheld. However, it may not be possible to sever advice and recommendations and still leave meaningful factual information. In this circumstance, severing may not be appropriate, and the information should not be disclosed.

Statistical Survey

s.13(2)(b) FIPPA / s.7(2)(b) MFIPPA

A statistical survey must be disclosed unless another exemption applies.

A statistical survey is a record showing the collection, analysis, interpretation and presentation of aggregate data in relation to a topic or issue which is the object of study, for example, a poll. Any information identifying individuals must be removed before the record is disclosed.

Valuator’s Report

s.13(2)(c) FIPPA / s.7(2)(c) MFIPPA

A valuator is someone with specific expertise appointed to determine or estimate the value, price or merit of an article. He or she need not be an officer of the institution. A valuator’s report would include an appraisal of the value of real property.

Environmental Impact Statement

s.13(2)(d) FIPPA / s.7(2)(d) MFIPPA

An environmental impact statement or similar record must be disclosed.

An environmental impact statement is a record containing a technical assessment, including findings and conclusions respecting the social, cultural, economic and environmental consequences of projects such as buildings and highways.

Test Report

s.13(2)(e) FIPPA

An institution cannot under subsection 13(1) refuse to disclose a report of a test carried out on a product for the purpose of government equipment testing or a consumer test report.

In this subsection, "government" includes ministries and all the agencies and other bodies designated as institutions. Product and environmental testing is discussed under subsection 18(2) FIPPA.

Report on Performance

s.13(2)(f) FIPPA / s.7(2)(e) MFIPPA

A report or study on the performance or efficiency of an institution is not exempt under s.13(1) FIPPA / s.7(1) MFIPPA. The report or study may be of a general nature or about a particular program or policy.

For example: a final audit report, including its findings and conclusions would not be exempt.

Feasibility Study

s.13(2)(g) FIPPA / s.7(2)(f) MFIPPA

A feasibility or other technical study, including a cost estimate, relating to an institution’s policy or project must be disclosed unless another exemption applies.

A feasibility or other technical study is prepared by experts in the relevant discipline to determine whether a proposed policy or project can be accomplished within certain given assumptions and constraints. If the study is classified as a feasibility study, the record will be fully disclosed, including cost estimate information.

For example: a feasibility study for a micrographics program would not be exempt from disclosure under this subsection.

Field Research Report

s.13(2)(h) FIPPA / s.7(2)(g) MFIPPA

The exemption in s13(1) FIPPA/ s.7(1) MFIPPA does not apply to a report setting out the findings and conclusions of field research on an issue or problem which is undertaken before the formulation of a policy proposal.

Proposal to Change or Establish a Program

s.13(2)(i) FIPPA / s.7(2)(h) MFIPPA

This subsection requires disclosure of a final plan or proposal to change or establish a program, including a budgetary estimate, or, in the case of FIPPA, whether or not the plan or proposal is subject to approval.

This section must be considered in relation to the exemption in s.18(1)(f) FIPPA / s.11(f) MFIPPA, and refers to a final plan or proposal to alter or establish a program which provides a service to the public and which is developed or implemented to carry out the institution’s responsibilities. Subsection 18(1)(f) FIPPA / s.11(f) MFIPPA covers internal administrative arrangements relating to personnel which do not fundamentally alter the nature and content of the programs being delivered to the public.

If the plan or proposal is one that is to be presented to Cabinet or its committees, this section does not apply and s.12 FIPPA must be considered.

Interdepartmental Task Force Report (FIPPA)/Committee Report (MFIPPA)

s.13(2)(j) FIPPA / s.7(2)(i) MFIPPA

A report of a committee within an institution must be disclosed unless another exemption applies to the record.

Unless another exemption applies, this subsection requires disclosure of a report of an interdepartmental task force or similar body, or of a committee within an institution that has been established for the purpose of preparing a report. The word "interdepartmental" in this subsection means "inter institutional" in the sense of involving representatives of more than one institution designated under the Act.

For example: A report of a task force that included members from the Ministry of the Environment and Ontario Hydro is subject to this subsection.

Report of a Body Attached to Institution

s.13(2)(k) FIPPA / s.7(2)(j) MFIPPA

The type of body referred to in this subsection is one that consists primarily of representatives from outside the institution, and that undertakes inquiries and make reports or recommendations to the institution. The phrase "attached to an institution" indicates that the body has been appointed or invited to meet and deliberate by someone in an institution with appropriate authority. A local grants committee established to make recommendations regarding the awarding of grants is an example of one such body.

Reasons For a Final Decision

s.13(2)(l) FIPPA / s.7(2)(k) MFIPPA

Unless another exemption applies, this exception requires disclosure of the reasons for a final decision, order or ruling of an officer of the institution made during or at the conclusion of the exercise of a discretionary power under an enactment or scheme administered by the institution.

This exception covers a wide range of decisions made within an institution. It applies regardless of appeal rights and whether the reasons are recorded in internal memoranda, external correspondence, or given by the deciding officer or subsequently incorporated in a decision, order or ruling. Names and other features identifying individuals mentioned in the record may be subject to the personal information exemption.

Record More Than 20 Years Old

s.13(3) FIPPA / s.7(3) MFIPPA

Unless another exemption applies, an institution must release a record that is more than 20 years old. This subsection does not place an obligation on an institution to retain a record for 20 years. Retention schedules will be followed in determining the disposition of records.

Basis for Decision or Policy(FIPPA)

s.13(3) FIPPA

Under FIPPA a head shall not refuse to disclose a record under subsection 13(1) where he/she has publicly cited the record as the basis for making a decision or formulating a policy.

For example: This subsection applies where portions of a record have been disclosed to the media to explain a decision.

Law Enforcement (s.14 FIPPA/s.8 MFIPPA)

This section provides a discretionary exemption for records relating to police and by-law enforcement investigations and certain other investigative, adjudicative and protective functions.

Subsection (1) provides an exemption where disclosure could reasonably be expected to interfere with law enforcement and certain other activities.
Subsection (2) exempts certain types of law enforcement records.
Subsection (3) provides that a head may refuse to confirm or deny the existence of records in subsections (1) and (2).
Subsections (4) and (5) set out exceptions to the exemption.

Law enforcement is defined in s.2(1) of the Act. The phrase not only includes policing activities and prosecutions, but also investigations, or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed. This definition encompasses the enforcement of federal and provincial statutes and municipal by-laws. Law enforcement investigations do not include internal employment-related investigations for other than violations of the law.

For example: The enforcement of property standards by-laws by a municipality or the enforcement of a no-smoking by-law by a transit authority would constitute a law enforcement activity.

The term "could reasonably be expected to" as used in this section requires that the expectation of the harm coming to pass should the record be disclosed, not be fanciful, imaginary or contrived, but based on reason. An institution must establish a clear linkage between the disclosure of the information and the harm alleged.

The compelling public interest override in s.23 Freedom of Information and Protection of Privacy Act (FIPPA) / s.16 Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) does not apply to this exemption.

Law Enforcement Matter

s.14(1)(a) FIPPA / s.8(1)(a) MFIPPA

This exemption applies if disclosure could reasonably be expected to interfere with a law enforcement matter. To interfere with a law enforcement matter means that the disclosure would have the effect of hindering or impeding the conduct of a proceeding or the carrying out of a law enforcement activity.

Law enforcement matter refers to a proceeding or an activity that is within the scope of law enforcement as defined in s.2(1) of the Act.

Law Enforcement Investigation

s.14(1)(b) FIPPA / s.8(1)(b) MFIPPA

An institution may refuse to disclose a record where the disclosure could reasonably be expected to interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result. An "investigation" is the methodical determination of facts and gathering of evidence. In some cases, the evidence gathered in an investigation will be insufficient to support the commencement of a proceeding in a court or tribunal. A record of the investigation could still be exempt, however, since it is undertaken with a view to a law enforcement proceeding.

To "interfere" with an investigation does not mean that disclosure would altogether prevent a law enforcement investigation from taking place, but rather that disclosure would frustrate or impede the carrying out of an investigation.

For example: Disclosure to an individual that he/she is the subject of a current law enforcement investigation would probably not prevent the investigation from continuing, but in many cases would hamper or impede it. In these circumstances, records relating to the investigation would be exempt.

"In Ontario (Minister of Labour), the Court of Appeal for Ontario drew a distinction between the requirements for establishing "health or safety" harms under sections 14(1)(e) and 20, and harms under other exemptions. The court stated (at p. 6): The expectation of harm must be reasonable, but it need not be probable. Section 14(1)(e) requires a determination of whether there is a reasonable basis for concluding that disclosure could be expected to endanger the life or physical safety of a person. In other words, the party resisting disclosure must demonstrate that the reasons for resisting disclosure is not a frivolous or exaggerated expectation of endangerment to safety. Similarly [section] 20 calls for a demonstration that disclosure could reasonably be expected to seriously threaten the safety or health of an individual, as opposed to there being a groundless or exaggerated expectation of a threat to safety. Introducing the element of probability in this assessment is not appropriate considering the interests that are at stake, particularly the very significant interest of bodily integrity. It is difficult, if not impossible, to establish as a matter of probabilities that a person’s life or safety will be endangered by the release of a potentially inflammatory record. Where there is a reasonable basis for believing that a person’s safety will be endangered by disclosing a record, the holder of that record properly invokes [sections] 14(1)(e) or 20 to refuse disclosure.

Reveal Investigative Techniques

s.14(1)(c) FIPPA / s.8(1)(c) MFIPPA

This subsection applies where disclosure could reasonably be expected to reveal investigative techniques and procedures in use or likely to be used in law enforcement. The IPC has found that successful application of this exemption requires the institution to demonstrate that disclosure of the technique or procedure to the public would hinder or compromise its effective utilization. If the technique or procedure is generally known, or such that a lay person would expect, reliance on this exemption would not be successful.

For example: This exemption applied to records containing strategies, procedures and specific drug industry investigation targets, as well as other courses of action currently in use or likely to be used in law enforcement.

Reveal a Confidential Source

s.14(1)(d) FIPPA / s.8(1)(d) MFIPPA

Disclosure may be refused where it would reveal the identity of a confidential source of information in respect of a law enforcement matter, or disclose information furnished only by the confidential source.

For example: A person who complains against his/her neighbour in respect of a municipal by-law infraction is a source protected under the exemption. A police informant is a source protected under the exemption. A family member who provides information in confidence about a violation of law by another family member would also be protected.

Safety of a Law Enforcement Officer

s.14(1)(e) FIPPA / s.8(1)(e) MFIPPA

Disclosure may be refused where it would endanger the safety of a law enforcement officer or any other person. Section 20 FIPPA / s.13 MFIPPA also apply where disclosure of a record could reasonably be expected to seriously threaten an individual’s health or safety.

Fair Trial or Impartial Adjudication

s.14(1)(f) FIPPA / s.8(1)(f) MFIPPA

This exemption prevents premature disclosure of information that could deprive a person of a fair trial or impartial adjudication. Once the proceeding has been completely disposed of (including appeals), the exemption no longer applies. In order to demonstrate unfairness under this subsection, the institution must produce more evidence than the mere commencement of a legal action. The institution must present specific arguments as to how or why disclosure of specific parts of the record could reasonably be expected to deprive a person of a fair trial.

This subsection does not contain a reference to law enforcement and, accordingly, the exemption applies to proceedings that do not fall within the definition of law enforcement such as tribunals established by law to adjudicate individual or collective rights. An example of such a tribunal would be the Social Assistance Review Board. To rely on this exemption, however, there must be evidence that the disclosure of the records would result in unfairness.

Intelligence Information

s.14(1)(g) FIPPA / s.8(1)(g) MFIPPA

This subsection exempts from disclosure records where the disclosure could reasonably be expected to interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons.

"Intelligence information" is gathered because it may be useful for future investigations. It may also be used for activities aimed at preventing the commission of an offence and for the purpose of ensuring the security of individuals or organizations including institutions covered by the Act. Intelligence information may be derived from previous investigations which may or may not have resulted in the commencement of proceedings against a person or organization. It may also be gathered through observing the conduct of associates of known criminals and through other activities.

Confiscated Records

s.14(1)(h) FIPPA / s.8(1)(h) MFIPPA

This exemption applies where disclosure could reasonably be expected to reveal records confiscated by a peace officer in accordance with an act or regulation.

Endanger the Security

s.14(1)(i) FIPPA / s.8(1)(i) MFIPPA

Disclosure may be refused where it could reasonably be expected to endanger the security of a building or the security of a vehicle carrying items (e.g., things or articles), or of a system or procedure established for the protection of items, for which protection is reasonably required. The exemption is qualified by the requirements that the protection be reasonably required.

For example: A security audit was found to be a record which if disclosed would endanger the security of a system or procedure established for the protection of items.

Facilitate Escape

s.14(1)(j) FIPPA / s.8(1)(j) MFIPPA

Records are exempt where the disclosure could reasonably be expected to facilitate escape from custody of a person who is under lawful detention. Custody indicates that an individual is not free to leave a place of confinement without restriction. In general, any person held in custody pursuant to a valid warrant or other authorized order is under lawful detention.

The term "facilitate" means make easier or less difficult. The exemption applies to construction plans and specifications regarding a maximum security facility. It is not necessary that the plans be extremely detailed.

The fact that the plans for the secured facility were available to the public in the past does not mean that this section requires that they continue to be available. It is appropriate to limit access to records for security reasons.

Centre for Lawful Detention

s.14(1)(k) FIPPA / s.8(1)(k) MFIPPA

This provision exempts records where disclosure could reasonably be expected to jeopardize the security of a centre for lawful detention. This includes records containing details of previous investigations of escape attempts and details of security measures in place.

Unlawful Act

s.14(1)(l) FIPPA / s.8(1)(l) MFIPPA

Records are exempt where the disclosure could reasonably be expected to facilitate the planning or committing of an unlawful act or hamper the control of a crime. "Unlawful act" means a contravention of a statute or regulation or of a municipal by-law.

Other Law Enforcement Exemptions

s.14(2) FIPPA / s.8(2) MFIPPA

Subsection (2) specifies certain records that the institution may refuse to disclose in response to a request. These records are described immediately below. This subsection deals with the confidentiality that necessarily surrounds law enforcement investigations in order that institutions charged with external regulatory activities can carry out their duties.

Law Enforcement Report

s.14(2)(a) and 14(4) FIPPA / s.8(2)(a) and 8(4) MFIPPA

This subsection exempts from disclosure a report prepared in the course of law enforcement inspections or investigations by an agency responsible for enforcing and regulating compliance with a law. A "report" must consist of a formal statement or account of the results of the collation and consideration of information. Generally speaking, reports would not include mere observations or recordings of fact. "Agency" includes organizations acting on behalf of or as agents for law enforcement agencies.

The exemption in s.14(2)(a) FIPPA / s.8(2)(a) MFIPPA is modified by subsection 4.

Subsection 14(4) FIPPA / s.8(4) MFIPPA does not allow the head to exempt from disclosure a report containing the results of a routine inspection by an agency with statutory authority to enforce and regulate compliance with standards (e.g., the enforcement or compliance branch of an institution). "Routine inspections" are inspections that are carried out where there are no specific allegations that standards have been breached.

Material relating to routine inspections in areas such as health and safety legislation, fair trade practices laws, environmental protection schemes and many other regulatory schemes administered by government are to be open to public scrutiny.

For example: The Fire Marshals Act authorizes the Fire Chief to enforce compliance with fire safety standards through routine inspections. These standards are set out in the Fire Marshals Act and the Ontario Fire Code. These inspections need not take place as a result of a complaint. The records of these routine inspections would not be exempt under s.14(2)(a) FIPPA /s.8(2)(a) MFIPPA.

Act of Parliament

s.14(2)(b) FIPPA / s.8(2)(b) MFIPPA

This subsection exempts a law enforcement record where disclosure would be an offence under an Act of Parliament.

For example: Section 46 of the Young Offenders Act makes it an offence to knowingly disclose certain court, police and government records relating to young offenders, except as authorized by that Act.

Civil Liability

s.14(2)(c) FIPPA / s.8(2)(c) MFIPPA

This subsection exempts a law enforcement record where disclosure could reasonably be expected to expose the author of the record, or any person who had been quoted or paraphrased in the record, to civil liability.

The purpose of this exemption is to provide protection for law enforcement officials and witnesses/informants who might be sued for defamation as a result of disclosure of records made while carrying out their duties.

Correctional Authority

s.14(2)(d) FIPPA / s.8(2)(d) MFIPPA

This subsection exempts records that contain information relating to an individual’s correctional history while the individual is under the control or supervision of a correctional authority.

This exemption applies to individuals on parole, probation, a temporary absence permit, under bail supervision or performing community service work.

Refusal to Confirm or Deny the Existence of a Record

Subsection (3) provides that a head may refuse to confirm or deny the existence of a record to which subsections (1) or (2) apply. Situations may arise in which merely disclosing the existence of an investigation or intelligence file will communicate information to the requester which may impede ongoing investigation or intelligence-gathering.

Exceptions to Exemption for Law Enforcement

Routine Inspections

s.14(4) FIPPA / s.8(4) MFIPPA

This subsection requires an institution to disclose a record that is a report prepared in the course of routine inspections by an agency that is authorized to enforce and regulate compliance with a particular statute of Ontario.

For further discussion on routine inspections, see the section above pertaining to law enforcement reports.(s.14(2)(a) FIPPA/ s.8(2)(a) MFIPPA).

Degree of Success in a Law Enforcement Program

s.14(5) FIPPA / s.8(5) MFIPPA

This subsection provides that the exemptions in subsections (1) and (2) do not apply to a record regarding the degree of success achieved in a law enforcement program, unless the disclosure of such a record would prejudice, interfere with, or adversely affect any of the matters referred to in (1) or (2).

Relations with Other Governments (s.15 FIPPA / s.9 MFIPPA)

This section provides a discretionary exemption where disclosure of a record could reasonably be expected to prejudice the conduct of intergovernmental relations or reveal information received in confidence from another government.

"Other governments" include the:

Government of Canada;
Government of Ontario (for MFIPPA institutions);
Another provincial or territorial government;
A government of a foreign country or state; or
An international organization of states (e.g. United Nations).

This section also applies to records received in confidence from agencies or boards of these governments. For example, the Royal Canadian Mounted Police is an agency of the federal government. Municipal and regional police services are law enforcement agencies of the Government of Ontario, because the Police Services Act (PSA) is the governing legislation with respect to police services in Ontario and the PSA is administered by the Solicitor General of Ontario. Further, this subsection requires the relations in question to be intergovernmental rather than relations among agencies of the same government.For this exemption to apply, a three-part test must be met: 1) the records must reveal information received from another government or its agencies; 2) the information must have been received by an institution; and 3) the information must have been received in confidence.This exemption requires that there be a reasonable expectation of harm and the institution is expected to establish a clear and direct linkage between the disclosure of the information and the harm alleged. The expectation that disclosure of a record could prejudice the conduct of intergovernmental relations or reveal information received in confidence by the institution from another government or its agencies, must not be fanciful, imaginary or contrived, but rather one that is based on reason.The compelling public interest provision in s.23 FIPPA / s.16 MFIPPA applies to this exemption. However, FIPPA institutions must obtain the approval of the Executive Council (Cabinet) before disclosing any information to which this exemption applies.

Differences Between FIPPA and MFIPPA

There are some differences in the wording and provisions of this exemption between the Freedom of Information and Protection of Privacy Act (FIPPA) and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

For example: Section 9 (2) MFIPPA explicitly states that local institutions shall disclose a record to which the exemption applies if the government, agency or organization from which the record was received consents to the disclosure. There is no similar expressed provision in s. 15 FIPPA.

This exemption does not apply to records received in confidence by one municipality/local board from another municipality/local board. The Act provides that an access request can be transferred to the originating municipality or local board if that institution has a greater interest in the records Chapter 3 (Access Procedures) for a discussion on this transfer provision.

Prejudice to Intergovernmental Relations

s.15 (a) FIPPA

This exemption applies if there is a reasonable expectation of prejudice to the conduct of intergovernmental relations. "Intergovernmental" extends to the relationship that the Government of Ontario or an institution has with other governments. The term "relations" includes not only current negotiations, but general and ongoing exchanges with other governments.

Confidential Information

s.15 (b) and (c) FIPPA / s.9(1) MFIPPA

The purpose of this exemption is to ensure that governments under MFIPPA/FIPPA will continue to obtain access to records which other governments could otherwise be unwilling to supply without having this protection from disclosure. In order for this provision to apply, the case for confidentiality must be made by the supplying government, not the receiving government.

Defence (s.16 FIPPA)

This section provides a discretionary exemption for a record where disclosure could reasonably be expected to prejudice (or injure) the defence of Canada or any foreign state allied or associated with Canada.

The "defence of Canada or any foreign state allied or associated with Canada" includes the prevention of attack and other acts of aggression.

An "allied state" is one with which Canada has concluded formal alliances or treaties. An "associated state" is a state with which Canada may be linked for trade or other purposes outside the scope of a formal alliance.

The section also exempts records whose disclosure could reasonably be expected to be injurious to the detection, prevention or suppression of espionage, sabotage or terrorism.

If the head proposes to disclose the information despite the exemption, prior approval of Cabinet is required. The compelling public interest override in s.23 Freedom of Information and Protection of Privacy Act (FIPPA) does not apply to this exemption.

Third Party Information (s.17 FIPPA / s.10 MFIPPA)

Institutions subject to the Freedom of Information and Protection of Privacy Act (FIPPA)/Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) often acquire information about the activities of private sector organizations. Some of this information may constitute a valuable asset to the organization, and disclosure would impair its ability to compete effectively. s.17(1) FIPPA / s.10(1) MFIPPA provides a mandatory exemption from disclosure for certain third party information where disclosure could reasonably be expected to cause certain harms. This exemption is not limited to commercial third parties, but may also apply to any supplier of information which meets the tests specified below, including another institution.

Section 28 FIPPA /s.21 MFIPPA provides that before access is granted to a record that might contain information referred to in s.17(1) FIPPA / s.10(1) MFIPPA affecting the interests of a third party, that party must be notified and given the opportunity to make representations before a final access decision is made. If a third party claims in its representations that the record is exempt, the burden of establishing that the record falls within this section rests with that third party. Similarly, where an institution asserts that this provision applies, the burden of proof is on the institution. Notification procedures are discussed in Chapter 3 (Access Procedures).

The compelling public interest provision in s.23 FIPPA / s.16 MFIPPA applies to this exemption.

Threshold Tests

Before this exemption can be applied, all of the following three tests must be met:

the information must fit within one of the specified categories of third party information;
the information must have been "supplied" by the third party "in confidence", implicitly or explicitly; and
the disclosure of the information could reasonably be expected to cause certain harms specified in this section.

The three tests are discussed in more detail immediately below.

Test #1: Categories of Third Party Information

In order for this exemption apply, the record in question must contain one or more of the following types of information:

Trade secret: Means information including, but not limited to, a formula, pattern, compilation, program, method, technique, or process or information contained or embodied in a product, device or mechanism which (i) is, or may be used in a trade or business, (ii) is not generally known in that trade or business, (iii) has economic value from not being generally known, and (iv) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

Scientific information: Means information belonging to an organized field of knowledge in either the natural, biological or social sciences or mathematics. It must also relate to observing and testing specific hypotheses or conclusions and be undertaken by an expert in the field. Finally, scientific information must be given a meaning separate from "technical" information in this provision.

Technical information: Means information belonging to an organized field of knowledge that would fall under the general categories of applied sciences or mechanical arts. Examples of these fields would include architecture, engineering or electronics. It will usually involve information prepared by a professional in the field and describe the construction, operation or maintenance or a structure, process, equipment or thing. "Technical" information is distinct from "scientific" information.

Commercial information: Means information that relates solely to the buying, selling or exchange of merchandise or services. The term "commercial" information can apply to both profit- making and non-profit organizations, and has equal application to both large and small enterprises. Commercial" information is distinct from "financial" information

Financial information: Refers to specific data and is information that relates to finance or money matters. For example, the IPC has found that the price paid for land, tax information, conversion rates, default consequences and interest incentives regarding loans qualifies as financial information.

Labour relations: Means information concerning the collective relationship between an employer and its employees. This includes information compiled in the course of negotiating pay equity plans which, when implemented, would effect the collective relationship between the employer and its employees.

Test #2: Supplied in Confidence

The second test for this exemption is that the information must have been supplied in confidence to the institution by a third party. The IPC's findings on this test include the following:

Information that is created or gathered by the institution is not "supplied" by a third party. For example, information deriving from an institutions' negotiations with a third party is not "supplied" by the third party. However, the exemption is applicable to records developed by the institution where disclosure of those records would permit the drawing of accurate inference with respect to supplied by the third party and meeting other parts of the test.
The intention to maintain confidentiality may be expressed or may be implied from the circumstances (or conduct of the parties). For example, confidentiality may be implied where there is evidence that the information was consistently treated in confidence.
The expectation of confidence must be reasonable and have an objective basis. The following factors may be considered: 1. was it communicated that the information was to be kept confidential; 2. was it treated consistently in a manner that shows concern for its protection prior to being communicated to the institution; 3. is it otherwise available to the public; and 4. was the record prepared for a purpose that would not entail disclosure.

Test #3: Harms Test

For this exemption to apply, it must be demonstrated that disclosure of the record could reasonably be expected to yield one of the three results discussed below.

Competitive Position or Negotiations

s.17(1)(a) FIPPA / s.10(1)(a) MFIPPA

The subsection applies where the disclosure could reasonably be expected to prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons or organization.

This involves significant injury to competitive position, or significant interference with contractual or other negotiations. It requires some measure of the injury. The particular circumstances must be evaluated in each case. The institution or third party must present evidence that is detailed and convincing and must describe a set of facts and circumstances that would lead to a reasonable expectation that harm would occur it the information were released. Generalized assertions of fact without sufficient evidence do not meet the test.

Where this exemption is considered concerning contracts, it is unlikely that the harms test will be met by disclosure of standard clauses found in all or most contracts of a similar nature. It the exemption is applied to the contract, such clauses may be disclosed by release of a severed copy.

The "competitive position" could be prejudiced without resulting in any immediate or direct loss. There must be a competitive community where another’s knowledge of the relevant information could affect the competitive position.

The "negotiations" for which the exemption may be claimed are contractual negotiations or some similar type, such as negotiations relating, to the settlement of a lawsuit or negotiations regarding the funding of a non-profit agency.

The injury contemplated may be either to the third party submitting the information, or to any person. or group of persons, or to an organization other than an institution.

Impede Supply of Similar Information

s.17(1)(b) FIPPA / s.10(1)(b) MFIPPA

This subsection applies where disclosure could reasonably be expected to result in similar information no longer being supplied to an institution where it is in the public interest that similar information continue to be supplied.

Release of the information would deter the voluntary supply of similar information from the same or another source. The consideration here is whether a third party requires assurance of confidentiality prior to voluntarily supplying information. The test is whether the third party or another source would entrust similar information to the institution in the future if the information were disclosed. If not, this subsection applies.

A further necessary test is that it is in the public interest that the institution continue to receive the information. At issue is the public interest, not necessarily the institution’s interest.

Undue Loss or Gain

s.17(1)(c) FIPPA / s.10(1)(c) MFIPPA

This subsection applies when the disclosure could reasonably be expected to result in undue loss or gain to any person, group, committee or financial institution or agency.

The loss or gain referred to in this subsection could be of any character, but must be "undue". "Undue" means more than necessary, improper, or unwarranted. The loss or gain need not be attributable to the third party submitting the information, but to "any person, group, committee or financial institution or agency".

Labour Relations Information

s.17(1)(d) FIPPA / s.10(1)(d) MFIPPA

This subsection applies where disclosure could reasonably be expected to reveal a report or information supplied to a conciliation officer, mediator, labour relations officer or other person appointed to resolve labour relations dispute.

Tax Information

s.17(2) FIPPA

This subsection also provides a mandatory exemption for records which reveal information obtained on a tax return for records which are gathered to collect a tax or determine tax liability. The injury tests in subsection 17(1) do not apply to subsection 17(2).

Exception to Exemption for Third Party Information

s.17(3) FIPPA / s.10(2) MFIPPA

This subsection gives the head discretion to release information described in s.17 FIPPA / s.10 MFIPPA if the person to whom the information relates consents. The person to whom the information relates could be the third party who submitted it, or any other person who is a subject of the information.

For example: Where a contractor supplies information about itself and about the sub-trades on a particular project, both the contractor and the subtrades could be persons "to whom the information relates", and each would have to give consent to disclosure.

Economic and Other Interests

s.18 FIPPA / s.11 MFIPPA)

This section provides a discretionary exemption for certain proprietary information of institutions and the premature disclosure of certain plans or negotiating strategies. Information affecting the interests of third parties is covered by s.17 Freedom of Information and Protection of Privacy Act (FIPPA) / s.10 Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

Subsections 18(1)(a) through (g) FIPPA / s.11(a) through (g) MFIPPA set out the types of information and circumstances covered by this exemption. Subsection 18(2) FIPPA contains an exception to the exemption.

The compelling public interest provision in s.23 FIPPA / s.16 MFIPPA applies to this exemption. Where the head exercises his/her discretion to withhold the record, the head must consider whether the public interest in disclosure outweighs the need for confidentiality.

Commercial Information

s.18(1)(a) FIPPA / s.11(a) MFIPPA

This subsection allows the institution to refuse access to trade secrets, or financial, commercial, scientific or technical information belonging to an institution that has monetary value or potential monetary value. The terms trade secrets, or financial, commercial, scientific or technical information have the same meaning as in s. 17 FIPPA / s. 10 MFIPPA. Having monetary value or potential monetary value means that the trade secret or information is or is potentially marketable. The information may belong to the institution with custody of the record or another institution. This exemption may not apply where the information in the record is in the public domain through a bona fide publication or court record.

Employee Research

s.18(1)(b) FIPPA / s.11(b) MFIPPA

This subsection exempts information obtained through research by an employee of an institution where the disclosure could reasonably be expected to deprive the employee of priority of publication. The employee must be able to establish his/her intention to publish the information.

Economic Interests

s.18(1)(c) FIPPA / s.11(c) MFIPPA

This subsection exempts information where the disclosure could reasonably be expected to prejudice the economic interests or competitive position of an institution.

"Economic interests" concern the production, distribution and consumption of goods and services. If it can be reasonably expected, for instance, that disclosure of certain information would cause an institution to pay a higher price for goods and services, that information may be exempt under this provision.

"Competitive position" applies only to those institutions engaged in the supply of goods and services on a competitive basis.

In applying this exemption, the institution must present evidence that is detailed and convincing and must describe a set of facts and circumstances that would lead to a reasonable expectation that harm would occur if the information were released. Generalized assertions of fact without sufficient evidence do not meet the test.

Financial Interests

s.18(1)(d) FIPPA / s.11(d) MFIPPA

This subsection exempts information where the disclosure could reasonably be expected to be injurious to an institution’s financial interests (MFIPPA) or the Ontario Government’s ability to manage the economy of Ontario. Financial interests refers to an institution’s financial position, its ability to collect taxes and generate revenues, and its ability to protect its own interests in financial transactions with third parties, including other governments.

An institution’s belief that it may be sued if records are disclosed is not sufficient to invoke this exemption. The exemption is based on reasonable expectations of injury and evidence is required to substantiate the assertion of injury.

Negotiating Strategy

s.18(1)(e) FIPPA / s.11(e) MFIPPA

An institution may refuse to disclose positions, plans, procedures, criteria, or instructions to be applied to any negotiations carried on, or to be carried on, by or on behalf of an institution. This exemption is intended to protect an institution’s ability to negotiate effectively with other parties. It extends to options, fall-back positions and tactics developed as part of the negotiating process. It also applies to on-going or future negotiations.

"Negotiations" in this context means discussions and communications where the intent is to arrive at a settlement or agreement.

Personnel or Administration Plans

s.18(1)(f) FIPPA / s.11(f) MFIPPA

A head may refuse to disclose a record that contains plans relating to managing personnel or the administration of an institution that have not yet been put into operation or been made public. This exemption does not apply once a plan has been put into effect or publicly disclosed. The exemption is intended to cover an institution’s internal management plans such as a reorganization, relocation, or creation of an agency prior to implementation. Typically, this exemption would apply to records containing detailed methods, schemes or designs that are characteristic of a plan, rather than records with advice for developing a plan, to resolve issues.

See also s.13(2)(i) and s.65(6)(3) FIPPA / s.7(2)(h) and s.52(3)(3) MFIPPA concerning proposals to change or establish a public program.

Policy Decisions/Unfair Advantage

s.18(1)(g) FIPPA / s.11(g) MFIPPA

This subsection exempts information such as proposed plans, policies or projects where disclosure could reasonably be expected to result in:

premature disclosure of a pending policy decision, or
undue financial benefit or loss to a person.

"Undue" means more than necessary, improper or unwarranted.

This is a time limited exemption in that it covers only proposed plans, policies or projects. It applies when one of the two specified results can reasonably be expected to occur due to the disclosure. There must be evidence to substantiate the assertion that one of the results would occur.

Examination or Test Questions

s.18(1)(h) FIPPA / s.11(h) MFIPPA

An institution may refuse to disclose questions that are to be used in an examination or test for an educational purpose. Once the question is no longer to be used in an exam or test, the exemption does not apply.

Questions for a job competition are not included in this exemption.

Submissions Under the Municipal Boundary Negotiations Act

s.18(1)(i) FIPPA / s.11(i) MFIPPA

This subsection exempts records containing submissions made under the Municipal Boundary Negotiations Act, by a party municipality or other body. This exemption is time limited and may be only be invoked until the matter, to which these submissions relate has been resolved under the Act.

Exception to Exemption for Economic and Other Interests

s.18(2) FIPPA

This subsection is an exception to the subsection 18(1) exemption. It requires the disclosure of a record that contains the results of certain product or environmental testing. The testing can be carried out either by or for the institution (by another institution or person). The two circumstances when the head is not required to disclose are when:

the testing was done as a service to a person, a group of persons or an organization other than an institution for a fee (e.g., a commercial product test); or
the testing was preliminary or experimental for the purpose of developing methods of testing.

Disclosure of a report of a test carried out on a product for the purpose of the government equipment testing or consumer test report is discussed under subsection 13(2)(e).

Solicitor-Client Privilege (s.19 FIPPA / s.12 MFIPPA)

This discretionary exemption covers records subject to the common-law solicitor-client privilege (Branch 1) or those records prepared by or for Crown counsel or counsel employed or retained by an institution, for use in giving legal advice or in contemplation of or for use in litigation (Branch 2). Branch 2 can apply regardless of whether the common-law privilege applies.

Under FIPPA, "Crown counsel" includes any person acting in the capacity of legal advisor to an institution.

"Legal advice" includes a legal opinion about a legal issue and a recommended course of action based on legal considerations. It does not include information which was provided about a matter having legal implications where no legal opinion was expressed or where no course of action based on legal considerations was recommended. The fact that a lawyer reviewed a record does not of itself mean that the record falls within the exemption.

The opinion of an institution’s legal advisors should always be sought before this exemption is used. Institutions must take care to ensure that that legal opinions are not released to another party as the solicitor-client privilege might be jeopardized.

The public interest override in s.23 Freedom of Information and Protection of Privacy Act (FIPPA) / s.16 Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) does not apply.

Application to Legal Advice (Branch 1)

The common law privilege (Branch 1) applies to: 1) all communications, verbal or written, of a confidential character, between a client, or his or her agent, and a legal advisor directly related to seeking, formulating or giving of legal advice or legal assistance (including the legal advisor’s working papers directly related thereto); and 2) papers and materials created or obtained especially for a lawyer’s brief for litigation, whether existing or contemplated.

For solicitor-client privilege to apply, four criteria must be met:

there must be a written or oral communication;
the communication must be of a confidential nature;
the communication must be between an institution and a legal advisor; and
the communication must be directly related to seeking, formulating or giving legal advice.

Application to Litigation Records (Branch 2)

Branch 2 of the section provides an exemption for all materials prepared for the purpose of obtaining legal advice whether in contemplation or litigation or not, as well as for all documents prepared in contemplation of or for use in litigation. This means that any communication, even of a non-confidential nature, between a lawyer and client or between a lawyer and third parties which is conducted for the purpose of litigation is privileged.

For a document to be "prepared… in contemplation of litigation", two criteria must be met:

contemplated litigation must be the dominant purpose for preparing the record, and
there must be a reasonable prospect of such litigation at the time the document was prepared; the litigation must be more than just a vague or theoretical possibility.

Waiver

Only the client is entitled to waive the solicitor-client privilege and thereby authorizing disclosure of the record. For such a waiver to be effective, there must be specific evidence of the client’s waiver of the privilege. The client’s waiver will not be implied from the fact that individuals or institutions other than the solicitor or client have possession of the record. However, the IPC has found instances where there was an implied waiver of privilege and the record was ordered disclosed. In one instance, a client disclosed an opinion to a specific party, intentionally and without any restrictions on its use, and the IPC found that this release constituted a waiver of the solicitor-client privilege. In another instance, an institution was found to have implicitly waived solicitor-client privilege with respect to a letter that was located in a land development file. The file was available for review by the public and had been seen by the requester in that way. Two additional facts were important to the outcome of the case: the institution did not remove the record from the file once it was aware of the problem and it did not make any representations on the issue of waiver during the appeal process.

Institutions must take care to ensure that legal opinions are not released to a specific party as the solicitor-client privilege may be jeopardized. If an institution wishes to release privileged information to a specific party, it should place restrictions on its use if it wishes to retain the solicitor-client privilege.

Danger to Safety or Health (s.20 FIPPA/s.13 MFIPPA)

This section of the Freedom of Information and Protection of Privacy Act (FIPPA)/Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) provides a discretionary exemption relating to records, the disclosure of which could reasonably be expected to seriously threaten the safety or health of any individual. The wording "reasonable expectation of harm" requires an institution to establish a clear and direct linkage between disclosure of information and the harm alleged.

This exemption is not intended to restrict an individual’s right of access to his/her own personal information, except where disclosure could threaten the safety or health of another individual. Where there is an exemption and the head has exercised his/her discretion against disclosure, the head should also consider whether disclosure of the record could reasonably be expected to endanger the life or physical safety of a law enforcement officer or any other person under s.14(1)(e) FIPPA / s.8(1)(e) MFIPPA.

The public interest override in s.23 FIPPA / s.16 MFIPPA applies to this exemption but not to the exemption provided by s.14 (1)(e) FIPPA / s.8 (1)(e) MFIPPA.

Personal Privacy (s.21 FIPPA / s.14 MFIPPA)

Section 21 FIPPA / s.14 MFIPPA

This section of the Freedom of Information and Protection of Privacy Act (FIPPA)/Municipal Freedom of Information and Protection of Privacy Act (MFIPPA):

provides a mandatory exemption relating to the disclosure of personal information to an individual other than the individual to whom the information relates, except in the circumstances specified in this section. It provides an exemption from the disclosure of personal information in response to a formal request under the Act.
is one of the keystone provisions of the Act. It balances the public’s right of access to records and the individual’s right of privacy respecting personal information.
requires the institution to refuse to disclose personal information, unless one of the circumstances listed in 21(1)(a) through (f) FIPPA / s.14(1)(a) through (f) MFIPPA apply.

Subsections 21(2)(a) through (i) FIPPA / s.14(2)(a) through (i) MFIPPA:

lists circumstances which should be considered in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy.

Subsection 21(3) FIPPA / s.14(3) MFIPPA:

sets out circumstances where disclosure is presumed to be an unjustified invasion of personal privacy.

Subsection 21(4) FIPPA / s.14(4) MFIPPA:

lists when disclosure does not constitute an unjustified invasion of personal privacy.

Subsection 21(5) FIPPA / s.14(5) MFIPPA:

permits an institution to refuse to confirm or deny the existence of a record if its disclosure would constitute an unjustified invasion of privacy.

Where an institution has reason to believe that a disclosure might constitute an unjustified invasion of personal privacy, s.21 FIPPA / s.14 MFIPPA directs an institution to give notice to the person to whom the personal information relates disclosing the record. This person must be given the opportunity to make representations about the disclosure. See Notices to Affected Third Parties in Chapter 3 (Access Procedures).

This exemption is subject to the public interest override in s.23 FIPPA/ s.16 MFIPPA. Where this exemption applies, the head must consider whether or not the public interest outweighs the interest in privacy. Prior to releasing information in the public interest, the head must follow the notification requirements in s.28 FIPPA/ s.21 MFIPPA.

Section 49 FIPPA/ s.38 MFIPPA is the relevant section when deciding the disclosure of personal information to the person to whom it pertains.

Note that certain records containing labour relations and employment-related information are excluded from FIPPA/MFIPPA. (See Exclusionary Provisions in Chapter 3 of this Manual)

Personal Privacy

s.21(1) FIPPA / s.14(1) MFIPPA

This subsection requires the institution to refuse to disclose personal information to someone other than the person to whom the information relates, unless one of the circumstances or exceptions listed in 21(1)(a) through (f) FIPPA / s.14(1)(a) through (f) MFIPPA applies.

Consent

s.21(1)(a) FIPPA / s.14(1)(a) MFIPPA

Personal information may be disclosed to someone other than the individual to whom the information relates with the prior request or consent of the individual. The record must be one to which the individual is entitled to have access.

The request or consent should be in writing and be received before the personal information is disclosed. It is good practice to confirm the identity of the person giving consent.

Compelling Circumstances

s.21(1)(b) FIPPA / s.14(1)(b) MFIPPA

Personal information may be disclosed to someone other than the individual to whom the information relates in compelling circumstances affecting the health or safety of an individual, not necessarily the individual to whom the information relates.

Circumstances are "compelling" when either there is no other way to obtain personal information affecting health or safety, or there is an emergency situation where the delay in obtaining the information would be injurious to someone’s health or safety. The determination of when compelling circumstances exist is left to the discretion of the head.

Where personal information is released under this subsection, upon disclosure, notification must be mailed to the last known address of the individual to whom the information relates. If the institution does not have the address, it should attempt to find out the address of the individual from the person who made the request.

Public Records

s.21(1)(c) FIPPA / s.14(1)(c) MFIPPA

Personal information may be disclosed to someone other than the individual to whom the information relates if the personal information is collected and maintained specifically for the purpose of creating a record available to the general public.

A public record refers to a collection of personal information to which all members of the public have equal access. In order to satisfy this exception, it must be shown that the personal information was collected and maintained "specifically" for the purpose of making it available to the general public. See Chapter 5 (Privacy Protection) for further discussion of public records.

Public records are created to allow the public, in specific circumstances, access to personal information which would not normally be available. The public’s "need to know" must outweigh the privacy protection rights of the individuals to whom the information relates.

Personal information is usually maintained in public records for the following reasons:

To allow for the proper administration of programs, activities and services, (e.g. list of electors, assessment roll).
To promote government accountability, by providing information relating to the issuance of licences, permits, government contracts, etc.
To promote informed choice and consumer protection, (e.g. by making available records such as land registry records, assessment rolls, bills of sales registration, personal property security registration system, records of holders of specific licences and permits etc.).
To allow for the fair determination of rights.

Key Features of Public Records

The record must be equally available to all members of the public. A collection of personal information to which only some people have access while others do not, would not qualify as a public record as contemplated in the Act.
Public availability does not mean the information is necessarily accessible free of charge. There are a number of existing public records which require the payment of fees for access.
When a public record of personal information is created or maintained, public availability does not have to be the only purpose for collecting and maintaining the information. For example, the land tax register is used for the administration of the property taxing program, but the information contained in these records is also needed by individuals for a number of business-related purposes.
Access to a public record does not necessarily mean it is readily available without some identifying information. There are situations where an individual must provide the institution with specific details or identifiers to allow the institution to retrieve the record. The fact that existing systems for access are not as convenient or as cost effective to a requester does not mean that the records are not publicly available.
Personal information appearing in a public record in one context does not necessarily render the information public in another context. For example, personal information relating to criminal convictions may be publicly available through court records, but a record of criminal convictions in a personnel or security file would not thereby be a public record.
There can be instances where only certain elements of a collection of personal information are maintained as a public record, while other parts are not available to the public.

How Public Records Are Created

In many jurisdictions, public records of personal information are created and maintained through specific statutes or regulations. However, in Ontario, public records can be created either by:

Statute; or
Policy Decisions by Institutions.

Statute
Statutes, regulations or by-laws designating public records generally contain terms and conditions regarding the administration of the information. Often, the authority to charge fees, times and location of access, are prescribed in the legislation.
Policy Decisions by Institution
There are situations where public records exist without a legislative basis. The institution, through its dealings with the public, may determine that there is a legitimate "public need to know" which outweighs the privacy rights of the individuals to whom the information relates. In such cases, the institution may establish a policy designating the record public. The major factors in this decision would be the privacy protection rights of individuals and whether or not release of the information can be treated as a "justified" invasion of personal privacy.

Factors to Consider

The following are some of the factors to consider in the creation and maintenance of public records:

Does the public "need to know" outweigh the privacy rights of the individuals concerned?
Will the release of the information foster informed choice?
Will the information be accessible to everyone?
Does the public need the information to assist in the conduct of business?
Would the public availability of the information constitute an unjustified invasion of personal privacy?
Is the personal information particularly sensitive?
Is the information relevant to the fair determination of a requester’s rights?

While the Act is silent on statutory requirements governing the creation and maintenance of public records, the balance between the need for disclosure and the right of individuals to privacy must be carefully weighed. In such circumstance the balancing test (see personal privacy section of the Act) outlining the criteria in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, can play an important role in helping an institution decide if a collection of personal information will, or will not, be available as a public record.

Disclosure Expressly Authorized by Statute

s.21(1)(d) FIPPA / s.14(1)(d) MFIPPA

Personal information may be disclosed to a person other than the individual to whom it relates where a statute of Ontario or Canada expressly authorizes the disclosure.

The authority to disclose must be stated in the statute and not simply be an administrative policy of the institution.

For example: Section 14 of the Business Practice Act permits information gained during an inspection or investigation to be disclosed to inform a consumer of an unfair business practice and any information relevant to the consumer’s rights.

Research Agreements

s.21(1)(e) FIPPA / s.14(1)(e) MFIPPA

When certain conditions are met, personal information may be disclosed to someone other than the individual to whom the information relates if the disclosure is for a research purpose. "Research purposes" are distinct from administrative, operational or regulatory uses of personal information in that research uses do not directly affect the individual to whom the information relates and do not relate to the usual administration of a program. Program audits, evaluations and operational reviews are not research for the purposes of this section. "Research" means a systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions and an endeavour to discover new or to collate old facts by the scientific study or by a course of critical investigation.

This provision covers disclosures in response to access requests from researchers receiving grants, consultants conducting contractual research and independent researchers. Access to personal information by researchers who are employees of an institution is not covered by this subsection but rather by s.41 FIPPA / s.31 MFIPPA and s.42(d) FIPPA / s.32(d) MFIPPA.

The institution must determine that conditions are appropriate for the disclosure of personal information for a research purpose. The following conditions must be met:

the disclosure must be consistent with the conditions or reasonable expectations of disclosure under which the personal information was provided, collected or obtained. If the information was provided with a reasonable expectation of confidentiality, access should not be granted without the consent of the individual;
the research purpose for which the disclosure is to be made cannot be reasonably achieved unless the information is provided in a form which allows individuals to be identified. The head must be satisfied that the objective necessitates individual identification;
the researcher must comply with conditions relating to security and confidentiality prescribed by regulation.

See Appendix VIII for a sample research agreement.

Unjustified Invasion of Personal Privacy

s.21(1)(f) FIPPA / s.14(1)(f) MFIPPA

Personal information may be disclosed to someone other than the individual to whom the information relates where the disclosure does not constitute an unjustified invasion of personal privacy. This provision is an exception to the mandatory exemption. Sections 21(2)(3) and (4) FIPPA / s.14(2)(3) and (4) MFIPPA provide guidance in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy. Where one of the presumptions in s.21(3) FIPPA / s.14(3) MFIPPA applies to the personal information found in a record, the only way such a presumption against disclosure can be overcome is if the personal information falls under s.21(4) FIPPA / s.14(4) MFIPPA or where a finding is made that s.23 FIPPA / s.16 MFIPPA applies to the personal information.

If none of the presumptions in s.21(3) FIPPA / s.14(3) MFIPPA apply, the head must consider the application of the factors listed in s.21(2) FIPPA / s.14(2) MFIPPA, as well as all other relevant circumstances in the case.

Factors to be Considered

s.21(2) FIPPA / s.14(2) MFIPPA

If none of the presumptions in s.21(3) FIPPA / s.14(3) MFIPPA apply, the head must consider the factors listed in s.21(2) FIPPA / s.14(2) MFIPPA. This list of factors is not exhaustive. Any other relevant circumstances should be considered by the institution before a decision on disclosure is made. For example, one unlisted factor favouring disclosure of personal information may be ensuring or restoring public confidence in an institution.

Public Scrutiny

s.21(2)(a) FIPPA / s.14(2)(a) MFIPPA

One factor in determining whether disclosure of personal information constitutes an unjustified invasion of privacy is whether disclosure is desirable for subjecting the activities of government institutions to public scrutiny. In such cases, access to information and internal scrutiny of the internal workings of government will prevail over the protection of individual privacy. When invoking this provision, institutions should consider the broader interests of public accountability. There must be a public demand for scrutiny of the institution, not one person’s personal view or opinion. The requester must demonstrate that the activities of the institution to which the record relates have been publicly called into question.

Public Health and Safety

s.21(2)(b) FIPPA / s.14(2)(b) MFIPPA

In determining whether disclosure constitutes an unjustified invasion of personal privacy, the head must consider whether access to the personal information may promote public health and safety.

For example: The identification of the location of a discharge or emission or some other potential danger to the environment may necessitate the disclosure of personal information.

Informed Choice

s.21(2)(c) FIPPA / s.14(2)(c) MFIPPA

In determining whether disclosure of the personal information constitutes an unjustified invasion of personal privacy, the head must consider whether the disclosure will promote informed choice in the purchase of goods and services.

For example: Disclosure of an evaluation of a supplier’s or consultant’s performance could disclose personal information.

Fair Determination of Rights

s.21(2)(d) FIPPA / s.14(2)(d) MFIPPA In determining whether the disclosure constitutes an unjustified invasion of personal privacy, the head must consider whether the personal information is relevant to a fair determination of rights affecting the requester. There may be instances where the requester requires access to personal information about his / her own rights.

In order for this section to be relevant, the following factors must be established: 1. the right in question is a legal right, which is based in common law or statute; 2. the right is related to a proceeding which is either existing or contemplated; 3. the personal information which the appellant is seeking access to has some bearing on or is significant to the determination of the right in question; and 4. the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing.

Unfair Exposure to Harm

s.21(2)(e) FIPPA / s.14(2)(e) MFIPPA

The head must consider whether the individual to whom the information relates will be exposed unfairly to pecuniary or other harm. Other provisions of the Act exempt records on the basis that disclosure may threaten someone’s life, health or safety (s. 14(1)(e) FIPPA/ s.8(1)(e) MFIPPA). The words "other harm" should therefore be interpreted narrowly to mean injury of a similar nature to pecuniary harm, such as harm to business interest.

This consideration is relevant only where there is evidence that unfair pecuniary or other harm will result from the disclosure.

Highly Sensitive Information

s.21(2)(f) FIPPA / s.14(2)(f) MFIPPA

The head must consider whether the personal information is highly sensitive to the individual to whom it relates. In order for information to be "highly sensitive", the institution must establish that release of the information would cause excessive personal distress to persons other than the requester, this includes the violation of personal security. The fact that an individual may be embarrassed by a disclosure of personal information is not sufficient to make this factor a relevant consideration.

Information Inaccurate or Unreliable

s.21(2)(g) FIPPA / s.14(2)(g) MFIPPA

In this circumstance, the head must consider whether the personal information is unlikely to be accurate or reliable. This factor weighs against disclosure of personal information. Where there is sufficient reason to question the accuracy or reliability of the records, it may be an unjustified invasion of personal privacy to release it. For this factor to be relevant, it must be shown in specific ways that the information received is inaccurate or unreliable.

Subsection 40(2) FIPPA / s.30(2) MFIPPA requires institutions to take reasonable steps to ensure that personal information is not used unless it is accurate and up to date.

Information Supplied in Confidence

s.21(2)(h) FIPPA / s.14(2)(h) MFIPPA The head must consider whether the personal information has been supplied to the institution in confidence by the person to whom it relates. This section does not apply to personal information supplied in confidence by one individual about another.

For example: Complaint information was sent by concerned citizens regarding an alleged trespass to property was expected to be kept confidential and as a result, this provision was a relevant factor.

Damage to Reputation

s.21(2)(i) FIPPA / s.14(2)(i) MFIPPA

The head must consider whether disclosure of the personal information may unfairly damage the reputation of any person referred to in the record. Damage to a reputation may not always be considered unfair.
For example: The IPC found that releasing an investigation which probed the appropriateness of a senior official’s foreign currency trading activities, would not "unfairly" damage the official’s reputation.

Presumed Invasion of Privacy

Subsection 21(3) FIPPA / s.14(3) MFIPPA provides that disclosure of certain types of personal information is presumed to be an unjustified invasion of personal privacy. The main characteristics of these types or classes of personal information are that they concern intimate, sensitive details of personal life or they give rise to a strong expectation that privacy will be protected. Where one of the presumptions in this subsection applies to the personal information found in a record, the only way the presumption against disclosure can be overcome is if the personal information falls under s.21(4) FIPPA / s.14(4) MFIPPA or where a finding is made that s.23 FIPPA / s.16 MFIPPA applies to the personal information.

Health Record

s.21(3)(a) FIPPA / s.14(3)(a) MFIPPA

Disclosure of information that relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation is presumed to constitute an unjustified invasion of personal privacy.

Violation of Law

s.21(3)(b) FIPPA / s.14(3)(b) MFIPPA

Disclosure of personal information compiled as part of an investigation into a possible violation of law is presumed to constitute an unjustified invasion of personal privacy. The phrase "violation of law" includes offences under federal or provincial statutes and regulations and municipal by-laws.

For example: Personal information relating to discrimination investigations compiled by, or on behalf of, the Ontario Human Rights Commission are records compiled as part of an investigation into a possible violation of law.

The presumption applies to investigations into possible violations of law; as a result, there is no need for criminal charges to be laid or for proceedings to have been commenced for the presumption to apply. This exemption does not apply where disclosure is necessary to prosecute the violation or to continue the investigation. Disclosure of personal information qualifying for this exemption may take place in the absence of an access request under the conditions found in s.42 (f) & (g) FIPPA / s.32 (f) & (g) MFIPPA.

Section 14 FIPPA/ s.8 MFIPPA provides an exemption for records relating to law enforcement activities. That section is complemented by this subsection, which protects the privacy of an individual who has been investigated for a possible violation of law but whose case has not yet been disposed of by a court. This section may also protect the privacy of individuals interviewed with respect to an investigation.

Eligibility for Social Programs

s.21(3)(c) FIPPA / s.14(3)(c) MFIPPA

Disclosure of information that relates to eligibility for social service or welfare benefits is presumed to constitute an unjustified invasion of personal privacy.

Employment or Educational History

s.21(3)(d) FIPPA / s.14(3)(d) MFIPPA

Disclosure of information that relates to an individual’s employment or educational history is presumed to constitute an unjustified invasion of personal privacy. This presumption does not apply to employee expense claims. See also s.65(6) FIPPA / s.52(3) MFIPPA.

Tax Return

s.21(3)(e) FIPPA / s.14(3)(e) MFIPPA

Disclosure of personal information obtained on a tax return or gathered for the purpose of collecting a tax is presumed to constitute an unjustified invasion of personal privacy.

Financial History

s.21(3)(f) FIPPA / s.14(3)(f) MFIPPA

Disclosure of most types of personal information describing an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or creditworthiness is presumed to constitute an unjustified invasion of personal privacy.

Personal Recommendations and Evaluations

s.21(3)(g) FIPPA / s.14(3)(g) MFIPPA

Disclosure of personal information consisting of personal recommendations or evaluations, character references, personnel evaluations is presumed to constitute an unjustified invasion of personal privacy.

Race, Ethnic Origin, Religion or Sexual Orientation

s.21(3)(h) FIPPA / s.14(3)(h) MFIPPA

Disclosure of personal information which reveals an individual’s racial or ethnic origin, sexual orientation, religious or political beliefs or is presumed to constitute an unjustified invasion of personal privacy.

Exceptions to the Exemption

Section 21(4) FIPPA/ s.14(4) MFIPPA places certain limits on the presumption of invasion of personal privacy created by s.21(3) FIPPA/ s.14(3) MFIPPA. Disclosure of the types of personal information mentioned in s.21(4)(a) through (c) FIPPA/ s.14(4)(a) and (b) MFIPPA does not constitute an unjustified invasion of personal privacy. Therefore, a record that fits within those subsections must be disclosed under s.21(1)(f) FIPPA/ s.14(1)(f) MFIPPA.

Salary Range and Benefits of Employees

s.21(4)(a) FIPPA / s.14(4)(a) MFIPPA

Disclosure of the classification, salary range and benefits, or employment responsibilities of an officer or employee of an institution, or a member of the Minister’s staff, is not an unjustified invasion of personal privacy. Note that the provision refers to "salary range", not specific salary.

Officer or employee includes appointed officials and those persons who work for an institution, or who perform their duties under a contract of employment.

Note that the Public Sector Salary Disclosure Act provides for public disclosure of salaries and benefits of employees who earn a salary of $100, 000 or more. See s.21(4)(b) FIPPA / s.14(4)(b) MFIPPA below for factors to consider when determining if an individual is an employee or independent contractor.

Personal Service Contracts

s.21(4)(b) FIPPA / s.14(4)(b) MFIPPA

Disclosure of the financial or other details of a contract for personal services between an individual and an institution is not an unjustified invasion of privacy. A contract in which an individual, not a company, is hired to perform professional services in respect of a particular problem or project would be included.

For example: A contract in which an individual is hired to perform professional services for an institution in respect of a particular problem or project would be included.

Usually, the more control an institution exercises over an individual with respect to such matters as place of work, hours of work and vacation entitlements, the more likely a relationship is one of employer and employee. In order to determine whether a contract is a contract for personal services as opposed to an employment contract, the following factors must be considered:

the level of control and supervision exercised by the employer with respect to a) how the work is performed, b) where the work is performed, c) the hours of work and d) what is produced;
the ownership and provision of the equipment used for the job;
the economic dependence of the worker on the employer;
whether the worker is entitled to undertake alternative work while engaged by the employer;
whether the worker is obliged to follow the employer’s organizational policies;
whether the worker bears any risk of loss by entering into the agreement;
whether the work which the individual performs is a necessary and integral component of the employer’s operations.

Licences or Permits

s.21(4)(c) FIPPA

Disclosure of details of a licence or permit or a similar discretionary financial benefit conferred on an individual by an institution or a head is not an unjustified invasion of privacy under certain circumstances.
The purpose of this limitation on the presumed invasion of privacy is to ensure that the public has access to information about licensing or the granting of benefits where the licensee or recipient of the benefit represents a significant proportion of the total number of persons in Ontario who are similarly licensed or who have received a similar benefit

The granting of a licence or permit or a financial benefit, at an institution’s discretion, may give a significant economic advantage to one individual over others who are in the same business or other activity.
Where an individual represents one per cent or more of all persons and organizations who have received this type of economic advantage, and if the value of the benefit to an individual is one per cent or more of the total value of similar benefits to other persons and organizations, disclosure of details of the benefit is not an invasion of the individual’s privacy.

The "value of the benefit" and the "total value of similar benefits" would be determined by dollar value where feasible.

Refusal to Confirm or Deny

s.21(5) FIPPA / s.14(5) MFIPPA

Where the head refuses to give access to a record on the grounds of an unjustified invasion of privacy, the head may also refuse to confirm or deny the existence of the record. Where the head refuses to confirm or deny the existence of a record in response to a request, notification to the requester under s.29(2) FIPPA /s.22(2) MFIPPA is required.

For example: Confirmation that an institution was in possession of a record relating to the treatment of an individual for an illness could be an unjustified invasion of privacy, even if access to the record itself was refused.

In order to use this provision, an institution must provide detailed and convincing evidence that disclosure of the mere existence of the requested records would convey information to the requester, and that the disclosure of this information would constitute an unjustified invasion of personal privacy.

This subsection is similar to s.14(3) FIPPA/ s.8(3) MFIPPA relating to law enforcement records. Notification to the requester under s.29(2) FIPPA/ s.22(2) MFIPPA would be required.

Public Appointments

The IPC has found that members of the public often wish to know some information about elected officials and appointees to public positions on boards and committees. Thus, institutions are encouraged to prepare brief biographies and make them available to the public upon request. Institutions should alert the elected official or appointee concerned before publishing the biography. Please see Appendix V for a sample biography.

Published Information (s.22 FIPPA / s.15 MFIPPA)

In the Freedom of Information and Protection of Privacy Act (FIPPA)/Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) this discretionary exemption allows an institution to refuse disclosure of a record where:

the record or the information contained in the record has been published or is currently available to the public; or
there are reasonable grounds to believe that the record or information will be published by the institution within 90 days of the request, or within a further period of time needed for printing the material or for translating it before printing.

This exemption is not limited to information published only by the institution. An institution has a duty to inform a requester where the record or information in question is available. Where an institution invokes this exemption, it must consider the convenience of the requester compared to the convenience of the institution.

Where an institution is dealing with an issue, which is the subject of numerous requests over a long period of time, and the institution will grant access to these records, it may be advantageous for the institution to put together a package of information and have it published. The institution could set a reasonable fee for the package.

The compelling public interest exemption in s.23 FIPPA / s.16 MFIPPA does not apply to this exemption.

Limitations on Access to One’s Own Personal Information (s.49 FIPPA / s.38 MFIPPA)

Section 49 Freedom of Information and Protection of Privacy Act (FIPPA) / s. 38 Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) set out the grounds for refusing to disclose personal information to the individual to whom it pertains. The grounds are enumerated in subsections 49(a) through (f) FIPPA / 38(a) through (f) MFIPPA. When an individual seeks access to his/her personal information this section of the Act applies, not the part of the Act dealing with general exemptions or a request by a third party for access to another person’s information.

The decision to refuse to disclose personal information to the individual to whom it relates is a discretionary exemption. Where this section applies, it is the record as a whole that is considered not only those parts containing the individual’s own information. Individuals have greater access to their own personal information than do third parties under s.21 FIPPA / s.14 MFIPPA.

The principle of severability applies to disclosure of personal information, as it does to general information. Subsection 48(2) FIPPA / 37(2) MFIPPA allows the information which is not be disclosed to be severed pursuant to subsection 10(2) FIPPA / 4(2) MFIPPA.

General Exemptions

s.49(a) FIPPA / s.38(a) MFIPPA

An individual’s right of access to his/her own personal information is subject to all the exemptions applying to general records found in Part II of FIPPA / Part I MIPPA, except for the personal information exemption (s. 21 FIPPA / s.14 MFIPPA). That exemption applies to the disclosure of an individual’s personal information to a third party.

Unjustified Invasion of Another’s Personal Privacy

s.49(b) FIPPA / s.38(b) MFIPPA

An individual may be refused access to his/her own personal information if disclosure would constitute an unjustified invasion of another individual’s personal privacy. Subsections 21(2) and (3) FIPPA / s.14(2) and (3) MFIPPA provide the test for determining an unjustified invasion of personal privacy and guidance in interpreting this subsection.

There may be personal information about more than one individual in the same record and severing may not be feasible because the information is so intertwined. For example, severing may not be feasible because close family or business ties would allow individuals other than the requester to be identified despite the severing. In such a case, disclosure would not be possible because it would invade the privacy of individuals other than the requester.

This is a discretionary exemption and even if disclosure of personal information would be an unjustified invasion of another person’s privacy, discretion can be exercised in favour of disclosure. Section 28 FIPPA / s.21 MFIPPA requires the head to notify the individual whose personal privacy may be invaded as a result of disclosure of the records. (See Notices to Affected Third Parties in Chapter 3 (Access Procedures)).

Revealing a Confidential Source

s.49(c) FIPPA / s.38(c) MFIPPA

An individual may be refused access to his/her own personal information when:

the personal information is evaluative or opinion material;
the personal information was compiled solely for the purpose of determining suitability, eligibility or qualifications for employment or for the awarding of government contracts and other benefits;
the information was supplied to the institution in circumstances where it may reasonably have been assumed that the identity of the source would be held in confidence;
the disclosure of the record would reveal the identity of the source of the information.

Each element of the four-part test must be satisfied in order for the exemption to apply. Further, the exemption only applies to information that would reveal the identity of the source.

"Evaluative" and "opinion" means a personal or subjective interpretation of objective facts (e.g. test scores, ratings and grades). The phrase "information furnished to the institution" may indicate a source within as well as outside the institution. "Other benefits" includes the conferring of awards, grants or similar benefits.

Medical Information

s.49(d) FIPPA / s.38(d) MFIPPA

The institution may refuse to disclose to an individual his/her own personal information where the disclosure could reasonably be expected to prejudice the individual’s mental or physical health. It is intended that this provision only be applied in circumstances when disclosure could cause injury or prove detrimental to the individual’s mental or physical health. It is not intended as a general provision for withholding access to medical information. Wherever possible, an individual should be granted access to his/her medical information.

Consultation with an appropriate health care professional may be advised to determine whether there is a reasonable expectation of prejudice to the individual’s mental or physical health. When the information is disclosed to the requester, the institution may also wish to have the health care professional present to provide explanations and answer questions.

Correctional Record (FIPPA)

s.49(e) FIPPA

The head may refuse to disclose personal information in a correctional record to the individual where disclosure could reasonably be expected to reveal information received in confidence.

Correctional records, such as those of inmates in correctional facilities, may contain personal information that identifies informants or may contain information related to active law enforcement investigations. The head may refuse to disclose the individual’s personal information if it would reveal the identity of a source or reveal investigative or other information supplied in confidence.

Subsection 14(1)(d) FIPPA provides a similar exemption for law enforcement records. Subsection 14(2)(d) provides an exemption for records containing information about persons under the control or supervision of a correctional authority.

Research or Statistical Record

s.49(f) FIPPA / s.38(e) MFIPPA

An individual may be refused access to his/her own personal information if the information was collected and used exclusively for a research or statistical purpose not directly affecting the individual. If the information is used or disclosed for any other purpose, this exemption can not be relied on to withhold it from the person to whom it pertains.

Updated: March 15, 2024

Published: December 02, 2015