Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 106-1996
May 28, 1996
INQUIRY RE: A decision by School District No. 31 (Merritt) to refuse an
applicant access to records concerning a workplace incident between the
applicant and another teacher
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner on April 10, 1996 under
section 56 of the Freedom of Information and Protection of Privacy Act
(the Act). This inquiry arose out of a request for review of a decision by
School District No. 31 (Merritt) to withhold certain records from the
applicant.
2. Documentation of the inquiry process
On December 21, 1995 the applicant wrote to the School District and requested
a witness statement and other notes about a workplace incident in June 1993
that had occurred between the applicant and a fellow teacher. The request was
accompanied by a photocopy of a handwritten note signed by the witness which
authorized the release of a statement to the applicant.
On December 21, 1995 the School District responded that it could not accept
the photocopied, handwritten note as authorization for the release of the
witness statement. The School District suggested that the witness should
contact it directly so that suitable authorization could be arranged. The
School District also refused the applicant access to the notes made about the
incident because they were part of an ongoing action on the part of the School
District.
On January 11, 1996 the applicant wrote to the Office of the Information and
Privacy Commissioner and requested a review of the School District's decision
to withhold the witness statement and accompanying notes.
On March 4, 1996 the School District clarified its original response letter to
the applicant. It stated that it had never received a signed statement of
authorization from the witness. The School District also confirmed that it was
withholding the other information requested by the applicant under section 22
of the Act.
3. Issue under review at the inquiry and the burden of proof
The issue under review in this inquiry is whether the records in dispute
should be withheld under section 22 of the Act. This section reads in part as
follows:
Disclosure harmful to personal privacy
22(1) The head of a public body must refuse to disclose personal information to
an applicant if the disclosure would be an unreasonable invasion of a third
party's personal privacy.
(2) In determining under subsection (1) or (3) whether a disclosure of personal
information constitutes an unreasonable invasion of a third party's personal
privacy, the head of a public body must consider all the relevant
circumstances, including whether
(3) A disclosure of personal information is presumed to be an unreasonable
invasion of a third party's personal privacy if
(4) A disclosure of personal information is not an unreasonable invasion of a
third party's personal privacy if
Section 57 of the Act establishes the burden of proof on the parties in this
inquiry. Under section 57(2), if the record or part of the record to which the
applicant is refused access contains personal information of a third party, it
is up to the applicant to prove that disclosure of this information would not
be an unreasonable invasion of the third party's personal privacy. In this
case, the applicant must prove that the release of the requested records would
not be an unreasonable invasion of the privacy of the other parties involved in
the incident.
4. The records in dispute
The records in dispute consist of several pages of documents concerning a
workplace incident in 1993 between the applicant and a fellow teacher. These
documents include two pages of handwritten notes about the incident, a one-page
summary of an account given by the witness to the incident, a one-page letter
from the applicant to the School District (which the applicant already has),
and a one-page memo from the other teacher involved in the incident.
5. The applicant's case
The applicant is a teacher who claims that she was almost attacked by a male
teacher in front of a student. She has requested the written statement of the
female witness and the principal's notes from his investigation of the event.
She states that the witness has consented in writing to this disclosure and
that, if the School District doubts the authenticity of the release, it can
verify the witness's signature through school records.
The applicant disputes the School District's reliance on section 22 of the Act
to prevent disclosure, since it would not unreasonably invade the privacy of
anyone else. She also submits that she is the victim in the case and that all
of the information is about her.
6. The School District's case
The School District emphasizes that the records in question concern the
applicant teacher, the other teacher, the principal, and the student witness.
The notes in question were used in the investigation of the teacher's
allegations and were discussed at in camera meetings of the School
Board. The School District states that the applicant has commenced an action
against the Board before the B.C. Council of Human Rights.
I have discussed the specifics of the School District's arguments below.
7. Discussion
Verifying the consent of the third party for release of her statement appears
to be an issue in this inquiry, with the School District apparently insisting
on the witness coming forward for this purpose, several years after the
occurrence. Given the obligation under section 6 of the Act to assist
applicants, I am of the view that the School District should have contacted the
witness directly (or confirmed her signature) to verify the consent rather than
insisting on the reverse. However, the consent issue is really a red herring
in this case, since the applicant should have a right of access to her personal
information in the witness statement, as should the other teacher if he is
interested.
In its submission for this inquiry, the School District belatedly sought to
claim section 14 protection for the records in dispute because they were
discussed extensively with the School Board's lawyers. When an inquiry is
underway on the basis of an agreed-upon set of exceptions, section 22 in this
case, I am not prepared to accept late arguments, of which the applicant did
not have notice, that were not specified in the formal written Notice of
Inquiry.
Section 22(2)(f): In determining under subsection (1) or (3) whether a
disclosure of personal information constitutes an unreasonable invasion of a
third party's personal privacy, the head of a public body must consider all the
relevant circumstances, including whether ... (f) the personal information has
been supplied in confidence,
The School District seeks to claim this "relevant circumstance"
to support non-disclosure because the school principal supplied the information
in the records in dispute to the School Board in confidence at a special
meeting. In my view, this section applies to the original conditions under
which the information was collected, not how it was later used by the person
who originally collected it. In future, such practices with respect to
confidentiality in school-related investigations should be clarified in the
written policies of any School District. (See Order No. 62-1995, November 2,
1995, pp. 11-12; and Order No. 70-1995, December 14, 1995, p. 8)
Section 22(3)(b): A disclosure of personal information is presumed to be
an unreasonable invasion of a third party's personal privacy if ... (b) the
personal information was compiled and is identifiable as part of an
investigation into a possible violation of law, except to the extent that
disclosure is necessary to prosecute the violation or to continue the
investigation,
The School District claims that this section prevents disclosure of the
records in dispute because the applicant filed a grievance with the School
Board and the incident was also discussed with the Royal Canadian Mounted
Police (RCMP). I find that the attempt to rely on this section in the stated
circumstances of this application for personal information is without merit on
the basis of the very limited evidence advanced by the public body. The School
District brought forward no evidence with respect to any "investigation into a
possible violation of law." Thus this presumption fails in this case. Having
read the records in dispute, I fail to see what interest the RCMP might have
had in the details of this specific episode.
Section 22(4)(a): A disclosure of personal information is not an
unreasonable invasion of a third party's personal privacy if (a) the third
party has, in writing, consented to or requested the disclosure,
The School District now appears to admit that the applicant does have the
consent of the witness to release the record in dispute, although it does not
have the permission of the others involved. But it still questions the
authenticity of the signature on the release and claims that this
section therefore does not apply. I find the School District's attempted reliance on
this section without merit with respect to the release of the witness's
statement to the applicant, since she has a right of access to her own personal
information. Moreover, there is no personal information about the witness in
the principal's notes of her statements to him.
Review of the records in dispute
There are four different records involved in this inquiry, three of which are
the subjects of the request for access. One is a letter from the applicant to
the school principal, which she already has. The second is a memo from the
other teacher to the principal about what had happened in the altercation.
Since the applicant teacher figures centrally in the other teacher's account,
it is my judgment that this personal information should be conveyed to her in
full, not least because it is an innocuous description of who said or did what
to whom in a culminating episode of friction between two persons. There is no
evidence that this memo was supplied in confidence.
The statement by the student who witnessed the event between the two teachers
is in the form of a series of descriptive points and was presumably written by
the principal during an interview with the student immediately after the event.
This statement should be released to the applicant.
The final document is two pages of notes written over seven separate days
before and after the dispute between the two teachers. It outlines a series of
on-going incidents in the workplace between them over minor school matters.
They are clearly working notes of a manager responsible for monitoring
behaviour on school premises. The involvements and opinions or actions of
various staff are recorded. In my view, the notes should be disclosed to the
applicant, except for one sentence which refers specifically to a sensitive
matter about the other teacher.
8.
Order
I find that disclosure of the records in dispute, with the one exception
referred to above, would not be an unreasonable invasion of any third party's
personal privacy.
Thus, I find that the head of School District No. 31 was not required to
refuse access to the records in dispute under section 22, except for one
sentence. Under section 58(2)(a), I require the head of School District No. 31
to give the applicant access to the records in dispute, with the exception of
the one sentence described above, which is to be severed.
May 28, 1996
David H. Flaherty
Commissioner