Edmonton (City) v. Alberta (Information and Privacy Commissioner), 2011 ABQB 226

Court of Queen ’ s Bench of Alberta Citation: Edmonton (City) v. Alberta (Information and Privacy Commissioner), 2011 ABQB 226 Date: 20110406 Docket: 1003 03929 Registry: Edmonton Between: City of Edmonton Applicant - and - The Office of Information and Privacy Commissioner and Kim Mah Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice A.B. Moen _______________________________________________________ I. Introduction.............................................................................................................. Page: 2 II.

Summary of conclusions....................................................................................... Page: 4 III. Discussion.............................................................................................................. Page: 4 A. Standard of Review Analysis.................................................................... Page: 4

B. Discussion of the Issues............................................................................ Page: 6 1. Is the SDAB a "public body" under FOIPP, or is it a department of the City? Page: 6 2. Did the City disclose Mah's personal information by showing the neighbour the construction drawings?.................................................................. Page: 8

a) The alleged disclosure...................................................... Page: 8

b) The Privacy Commissioner's conclusions....................... Page: 9 3. If personal information was disclosed in the construction drawings, was this disclosure contrary to

Part 2 of FOIPP?...................................................... Page: 18 a) Section 40(1)(b)............................................................... Page: 20 b) s. 40(1)(

c) and 40(1)(e)................................................... Page: 21

c) Summary........................................................................... Page: 22 IV. Conclusion............................................................................................................ Page: 22 I. Introduction [ 1 ] This is an application by the City of Edmonton ("City") for judicial review of orders made by an adjudicator with the Office of the Information and Privacy Commissioner (the "Privacy Commissioner") on January 28, 2010, Orders F2009-019 & F2009-020.

For the purposes of this decision, I will refer to the decision-maker as the Privacy Commissioner or the Commissioner. [ 2 ] Mah (the Respondent) and her husband wished to construct a house on Ada Boulevard in Edmonton. Their builder applied to the City for a development permit with variations; this was granted by the Development Officer.

The application forms did not identify the owners of the subject property, only the name of the builder. [ 3 ] The next door neighbour upon learning of the proposed construction after returning from a vacation out of the country met with City officials on February 28, 2008, to find out more about the proposed development. Officials showed her the construction drawings relating to that development. The development permit included a number of variances that concerned the neighbour regarding her enjoyment of her own property. [ 4 ] Those construction drawings did not include details of the interior of the Mah house.

However, it did show the exterior which included information about an exterior second storey hot tub planned for the development. [ 5 ] After meeting with the City, the neighbour made two requests (March 25, 2008 and June 24, 2008) to the City pursuant to the Freedom of Information and Protection of Privacy Act , RSA 2000, F-25 ( FOIPP ) for information about the proposed development. The City responded to both requests. [ 6 ] After the information was released to the neighbour, Mah read details about the proposed development in a local newsletter.

The newsletter contained her name, her address, her builder's name, her building plans and the history of the variance approval process relating to her building plans. Mah, upset about this, applied to the City under FOIPP to learn how this information became public. The City responded.

[ 7 ] Upon her review of the material provided by the City, Mah was not satisfied that the City had given her all the information she requested, and wrote to the Privacy Commissioner requesting that he review whether the City had fully complied with her access request. She thought that the City had not produced all relevant documents, including documents that were in the possession of the Subdivision Development Appeal Board ("SDAB").

She also complained that personal information had been disclosed to the neighbour when the City showed the neighbour the construction drawings. [ 8 ] The Privacy Commissioner ruled: first, that the City had not been responsive and had failed to do a thorough search for documents; second, that the City had disclosed Mah's personal information; third, that the SDAB is a department of the City and that, therefore, the City was obligated to do a search of the SDAB records as part of its search for documents in the City. [ 9 ] With respect to Mah's personal information, the Privacy Commissioner ruled it was disclosed in two respects: first, when City officials showed the neighbour the construction drawings (the February 28 meeting) and second, when the City complied with a FOIPP disclosure request by the neighbour (the access request).

Further, the Privacy Commissioner found that the City breached

Part 2 of FOIPP in the February 28 meeting, but that the access request disclosure to the neighbour was authorized by

Part 2 of FOIPP , which provides exceptions permitting disclosure of personal information. [ 10 ] The City is, in particular, concerned about the ruling that the SDAB is a department of the City, and not a public body as defined in FOIPP , implying that the SDAB is not independent of the City. Further, the City is concerned about the Privacy Commissioner's ruling that the City disclosed personal information about Mah to her neighbour by showing the neighbour the construction drawings.

Finally, the City says that if the information was personal, it was entitled to release that information under FOIPP . [ 11 ] The City does not ask this Court to determine if the Privacy Commissioner was wrong when he ordered the search for more information to comply with FOIPP . Rather, the City asks that this Court review the Privacy Commissioner's determination that the SDAB is a City department.

If I determine it is not, then the information ordered by the Privacy Commissioner to be produced by the City must be reviewed by the Privacy Commissioner in light of my decision. [ 12 ] On July 4, 2008, the neighbour wrote a letter to the SDAB requesting that she be allowed to appeal the development permit with respect to the property. The SDAB scheduled an appeal for July 31, 2008. [ 13 ] The issues arising in this judicial review are: 1. Is the SDAB a "public body" under FOIPP , or is it a department of the City? 2.

Did the City disclose Mah's personal information by showing the neighbour the construction drawings? 3. If the City disclosed personal information when it answered the FOIPP application by the neighbour, was this disclosure contrary to

Part 2 of FOIPP ? II.

Summary of conclusions [ 14 ] I find that the SDAB is a "public body" and that the City is, therefore, not required to undertake a search of SDAB records in a FOIPP request. Further, I find that construction drawings submitted to the City for a development permit are not personal information when those drawings only reveal the exterior of the proposed development and the surrounding lands. Further, I find that if the construction drawings and other information revealed by the City on the FOIPP application by the neighbour are personal information, the City was entitled under

Part 2 of FOIPP to reveal that personal information.

III. Discussion [ 15 ] This is a judicial review. [ 16 ] Courts supervise tribunals who act under statutory powers, ensuring that those tribunals do not "overstep their legal authority ... The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes." New Brunswick (Board of Management) v. Dunsmuir , 2008 SCC 9 ("Dunsmuir") at para 28 . [ 17 ] I shall now address the standard of review of the Privacy Commissioner's decisions. A.

Standard of Review Analysis [ 18 ] Standard of review is now either reasonableness or correctness. [ 19 ] The City says that the standard of review may well be different for each of the questions at issue here. [ 20 ] The court now recognizes that questions coming before an administrative tribunal do not necessarily have only one answer. There may be a number of reasonable conclusions.

Therefore a reviewing court must allow a "margin of appreciation within the range of acceptable and rational solutions." The decision must fall within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law.": Dunsmuir at para. 47 . This is the standard of reasonableness. The reviewing court must pay "respectful attention" to the reasons of the tribunal: at para. 48. Deference is thereby shown to the tribunal which sometimes, but not always, work in complex areas which require or develop considerable expertise in the specific area: at para. 49. [ 21 ] With respect to

interpretation of certain statutory provisions, where the decision of a tribunal is "rationally supported", it is entitled to find any one of a multiple of valid

interpretations of that statutory provision: Dunsmuir at para. 41 . Therefore, here, where the Privacy Commissioner is interpreting its own statute or one closely related to its function, the Privacy Commissioner is entitled to deference by the court for its decision. "... deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law." Dunsmuir at para. 48 . This is particularly so where the

interpretation of the statute relies on an understanding of the technical meaning of the words in the statute or an application of the statute to facts with which the tribunal would be more familiar than would the courts. [ 22 ] However, where there are jurisdictional questions and some other questions of law or statutory

interpretation, a standard of correctness may be required. If that is the case, deference is not required: at para. 50. The reviewing court will undertake its own analysis. [ 23 ] Of course, in order for the reviewing court to determine whether it should apply the reasonableness or the correctness standard, it must do a contextual analysis. Therefore, it would not be surprising that each question before a reviewing court may well require a different standard. That contextual analysis requires a review of a number of factors including: "(1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal.": at paras. 64 and 74. [ 24 ] It may not be necessary to consider all of these factors in each case or when considering the standard of review for a particular question. [ 25 ] Here, the first question involves whether the SDAB is a public body or whether it is a department of the City. The City

suggests that this is a jurisdictional question requiring a standard of correctness. Jurisdiction is here used in its narrow sense: "whether or not the tribunal had the authority to make the inquiry": New Brunswick (Board of Management) v. Dunsmuir , 2008 SCC 9 at para 59 . [ 26 ] In any event, given that this issue involves a question of pure statutory

interpretation of FOIPP and the Municipal Government Act , RSA 2000, c. M-26 ( MGA ), a statute which is not central to the usual day to day workings of the Privacy Commissioner's office, I find that the standard is correctness. In doing so, I acknowledge that the Privacy Commissioner is called upon regularly to determine whether a body is a "public body". Nevertheless, in the circumstances of this case, that determination lies four square in the MGA which is not a statute with which the Privacy Commissioner will be particularly familiar.

The Privacy Commissioner was not here interpreting his own statute and applying it to the facts; he is interpreting legislation other than his own and the facts are of little consequence. Given that the Privacy Commissioner does not have any particular expertise with respect to the MGA , and given that this issue is strictly statutory

interpretation, the standard of review here is correctness. Pure

interpretation of statutes is within the expertise of a court and here does not require any particular expertise. [ 27 ] The second issue is whether the City disclosed personal information about Mah to her neighbour when the City showed the neighbour the construction drawings, both in the interview and in response to the FOIPP request. This question involves

interpretation of FOIPP provisions and the application of those provisions to a given set of facts. The issues are squarely within the privacy regime and are not of central or broad significance to the legal system. The Privacy Commissioner has expertise in interpreting FOIPP and its

definitions concerning personal information. Therefore, the appropriate standard of review of this issue is reasonableness. [ 28 ] The third issue is, if the construction drawings and other documents released to the neighbour were personal, was the disclosure by the Privacy Commissioner contrary to

Part 2 of FOIPP ? This issue requires an

interpretation of the MGA and the City of Edmonton Zoning Bylaw in light of FOIPP . Where the Privacy Commissioner must consider municipal legislation and other provincial legislation in conjunction with FOIPP the standard of review is correctness: Business Watch International Inc. v. Alberta (Information & Privacy Commissioner) , 2009 ABQB 10 , 468 A.R. 362 at para. 63 . B. Discussion of the Issues 1. Is the SDAB a "public body" under FOIPP, or is it a department of the City? [ 29 ] The Privacy Commissioner found that the SDAB is not a "public body" as defined by FOIPP, but that it is a department of the City.

I have found that determining whether the SDAB is a public body is solely a matter of statutory

interpretation and therefore the Commissioner must be correct. Here, the Commissioner did not analyse the legislation to determine if the SDAB is or is not a public body, but just made the bold statement that it is a Department of the City. [ 30 ] The underlying issue is whether the City is required to produce records in the possession of the SDAB in response to a FOIPP access request to the City. The Privacy Commissioner found that the City "conducted an inadequate search for responsive records, and has therefore failed to respond to [Mah] openly, accurately, and completely under

section 10 of the FOIPP Act.": at para 32 of the Decision. At least in part, this determination was based on the finding that the City had not produced records in the possession of the SDAB. [ 31 ] The City says that the SDAB is a separate public body, not a City department, and that the Privacy Commissioner was therefore wrong when it required the City to search not only City records, but also SDAB records, for documents pertaining to the Mah request. [ 32 ] I agree with the City. [ 33 ] FOIPP deals with the right to access records in the custody of public bodies. Requests for information can only be made to public bodies: FOIPP ,

section 6. Therefore, if the SDAB is a public body, the City would not be required under FOIPP to search the records of the SDAB. The City would only be required to search records in its departments.

[ 34 ] To determine if the SDAB is a public body, I must have regard to the definition sections of FOIPP and of the MGA . [ 35 ] Under s. 1(

p) of FOIPP a "public body" is defined as including: (vii) a local public body. [ 36 ] A "local public body" is defined under s. 1(

j) as including: (iii) a local government body. [ 37 ] A local government body is defined under s. 1(

i) as including: (

i) a municipality as defined in the Municipal Government Act , ... (xii) any board, committee, commission, panel, agency or corporation that is created or owned by a [municipality] and all the members or officers of which are appointed or chosen by that body, [ 38 ] A "local government body" therefore includes the City of Edmonton and any board that is created by the City of Edmonton. [ 39 ] The SDAB is a board created by the City pursuant to mandatory requirements set out in 627(1)(

a) of the MGA : 627(1) A council must by bylaw, (

a) establish a subdivision and development appeal board ... [my emphasis] [ 40 ] The Subdivision and Development Appeal Board Bylaw , City of Edmonton Bylaw 11136,

section 4, established the SDAB for the City of Edmonton. [ 41 ] Therefore, by virtue of the

definitions in FOIPP , the SDAB is a "local government body" and as a "local government body" is a "public body". It is not a department of the City of Edmonton. As the Privacy Commissioner must be correct in his

interpretation of the statute he erred when he found that the SDAB was a department of the City of Edmonton. [ 42 ] Even if the standard of review was reasonableness, I find that the Privacy Commissioner's decision was unreasonable. He did not engage in any analysis of the

definitions in FOIPP or the MGA , stating only (at para. 25): Under the FOIPP Act, the City of Edmonton is a public body and the access request in this case was made to the City of Edmonton. Moreover, the head of the City of Edmonton, the City Manager, is responsible for responding to the Applicant. An access request cannot be made to the Planning and Development Department or the Subdivision and Development Appeal Board, as these are not public bodies as defined by

section 1(

p) of the FOIPP Act . (Emphasis added)

[ 43 ] A decision is unreasonable if there is no line of reasoning that can be followed to determine whether the decision is justified and intelligible: Dunsmuir (at paras. 37 and 47 ). Where the decision maker has given no intelligible justification for its conclusions, and has in effect, articulated no reason for the decision it has reached, it is unreasonable.

Here, the Privacy Commissioner has, without any analysis or justification made the bald assertion that the SDAB is not a "public body"; that is unreasonable. [ 44 ] I, therefore, find that the SDAB is not a department of the City of Edmonton, and that The City is not required to search for any records in the control of the SDAB. I return this matter to the Privacy Commissioner to consider whether the City has searched its records to comply with the FOIPP request made by Mah in light of this finding. 2.

Did the City disclose Mah's personal information by showing the neighbour the construction drawings? [ 45 ] Essentially, the issue here is whether the information disclosed by the City to a neighbour of Mah included personal information or was personal information about Mah. The information was disclosed in two ways: first by planners on a request by the neighbour to see the construction drawings of proposed construction on property next to hers and, second, under a FOIPP request made by the neighbour concerning the proposed construction of the house.

The information alleged by Mah to be personal was the exterior drawings of the proposed construction of her house. The name on the drawings was the name of the builder, not Mah. The drawings did not show the interior of the house. They did show an external second storey hot tub.

a) The alleged disclosure [ 46 ] The first alleged disclosure of personal information concerned a meeting between the neighbour and City officials on February 28, 2008. The neighbour asked about the proposed house to be built next door to her. City employees showed the neighbour construction drawings of the proposed house.

The Privacy Commissioner found that the notes of the February meeting prepared by the City employees indicate that employees of the City went over drawings with the neighbour and that the neighbour's concerns were the removal of the common shrubs and trees, proximity to the property line, and a second-story hot tub. [ 47 ] The second alleged disclosure of personal information about Mah was in March and June, 2008, when the City responded to requests from the neighbour for information under FOIPP .

On review of the Return, it appears that the FOIPP response disclosed site plan drawings and exterior elevations of the proposed building, but there are no interior plans. However, the Privacy Commissioner's decision does not clearly indicate what was disclosed and when.

b) The Privacy Commissioner's conclusions [ 48 ] Inherent in the Privacy Commissioner's conclusions is that the exterior drawings of a person's house provided to the City for the purpose of obtaining a development permit are personal information. The question then is whether the Privacy Commissioner was reasonable in this conclusion. The City is particularly concerned with its ability to show construction drawings to affected parties and would like guidance from the court as to whether such drawings are, in fact, personal information.

The City argues that its officials were entitled to show the neighbour those drawings because construction drawings are not personal information and, even if they are personal information, the City is entitled to give that information to affected parties under

Part 2 of FOIPP . [ 49 ] In this part of my decision I refer to whether those construction drawings are personal information as defined in FOIPP . In the next

section I discuss whether, if the drawings are personal information, disclosure of the construction drawings is permitted under

Part 2 of FOIPP . [ 50 ] The Privacy Commissioner found that the construction drawings were personal information and that they had been disclosed by the City at the February 28 meeting to the neighbour in contravention of

Part 2. The Privacy Commissioner's opinion was that the drawings shown to the neighbour contained information about Mah's personal intentions and was therefore "personal information". i.Definition of "personal information"

[ 51 ] The

interpretation of "personal information" is a question of law within the core function of the Privacy Commissioner. Further, the determination of whether certain information is personal calls for application of the law to facts, that is it is a question of mixed fact and law. Above, I determined that the Privacy Commissioner in this analysis must be reasonable. [ 52 ] The Privacy Commissioner was unreasonable in his

interpretation of "personal information" as it applies to this case. The Privacy Commissioner determined that the information disclosed by the City in both instances was personal information. In doing so, the Privacy Commissioner made a serious error. He applied the definition and

interpretation of the definition of "personal information" in the Personal Information and Privacy Act , R.S.A. 2000, c. P-6 .5(" PIPA " )to his reasoning about what those words meant in FOIPP . [ 53 ] PIPA does not apply to public bodies as defined in FOIPP : s. 4. As discussed above, the City and the SDAB are public bodies. FOIPP provides that a public body may use personal information: 39(1) A public body may use personal information only (

a) for the purpose for which the information was collected or compiled or for a use consistent with that purpose, (

b) if the individual the information is about has identified the information and consented, in the prescribed manner, to the use, or (

c) for a purpose for which that information may be disclosed to that public body under

section 40, 42 or 43. ...

(4) A public body may use personal information only to the extent necessary to enable the public body to carry out its purpose in a reasonable manner . [my emphasis] [ 54 ]

Section 40 of FOIPP sets out numerous - about 33 - different reasons under which a public body can release information. The Privacy Commissioner did not analyse which one, if any, could be cited by the City for the release of information given to it for the purpose of obtaining a building permit. One such permitted reason might be found in s. 40(1)(c) "for the purpose for which the information was collected or compiled or for a use consistent with that purpose"; another may be: 41 For the purposes of sections 39(1)(

a) and 40(1)(c), a use or disclosure of personal information is consistent with the purpose for which the information was collected or compiled if the use or disclosure (

a) has a reasonable and direct connection to that purpose, and (

b) is necessary for performing the statutory duties of, or for operating a legally authorized program of, the public body that uses or discloses the information. [ 55 ] In conducting his analysis, the Privacy Commissioner first set out the definition of "personal information" as it is found at s. 1(

n) of FOIPP . That definition is: 1(n) "personal information" means recorded information about an identifiable individual, including

(

i) the individual's name, home or business address or home or business telephone number, (ii) the individual's race, national or ethnic origin, colour or religious or political beliefs or associations, (iii) the individual's age, sex, marital status or family status, (iv) an identifying number, symbol or other particular assigned to the individual, (

v) the individual's fingerprints, other biometric information, blood type, genetic information or inheritable characteristics, (vi) information about the individual's health and health care history, including information about a physical or mental disability, (vii) information about the individual's educational, financial, employment or criminal history, including criminal records where a pardon has been given, (viii) anyone else's opinions about the individual, and (ix) the individual's personal views or opinions, except if they are about someone else. [ 56 ] Then, instead of relying on the definition of "personal information" found in FOIPP , the Privacy Commissioner, relied instead on consideration of the definition of "personal information" found in another statute.

Further, the Privacy Commissioner did not analyse under which head of the definition in FOIPP the construction drawings at issue would fall. Rather, the Privacy Commissioner relied on judicial consideration as to the meaning of "personal information" found in the Personal Information Protection Act, RSA, 2003 c. P-6.5 (" PIPA "): Re Douglas Homes, Order P2007-0004. PIPA defines "personal information" as: 1(k) "personal information" means information about an identifiable individual; [ 57 ] The PIPA definition has no list of examples of personal information to be considered, as there is in FOIPP .

The Privacy Commissioner in Douglas Homes , considering the definition of "personal information" in PIPA , found that (at para. 15) ... information as to the nature or state of property owned or occupied by someone is their personal information if it reflects something of a personal nature about them such as their taste, personal style, personal intentions , or compliance with legal requirements. (Emphasis added) [ 58 ] It was incumbent on the Privacy Commissioner to analyse the definition of personal information in FOIPP and, if he considered the definition in PIPA as guidance, to determine if there was a difference in the

definitions between the two. He did neither. [ 59 ] Using the definition in PIPA , the Privacy Commissioner found that the construction drawings were personal information revealing or containing personal information because the drawings reflected Mah's personal intentions. Those drawings only showed the exterior of the house. Therefore, the Privacy Commissioner found that showing the drawings to the neighbour and providing those drawings under a FOIPP request disclosed Mah's personal information, breaching FOIPP .

[60] The Privacy Commissioner found that personal information was disclosed both in the neighbour's first meeting with the Cityand in the City's response to the FOIPP request by the neighbour. Clearly, personal intentions are not set out in the list of personalinformation in FOIPP. Therefore, it is difficult to see the reasonableness of this

interpretation of FOIPP when considering if the Citydisclosed personal information about Mah when it responded to the FOIPP request. [61] Here, of course, the evidence establishes that the information provided to the neighbour either during the meeting with theCity or during the City's response to the FOIPP request did not disclose Mah's name. It did disclose the address (which is listed in thedefinition "personal information" in s. 1 of FOIPP) because the neighbour asked about the proposed construction on that specificproperty next door to the neighbour.

The address of that property is public information. [62] In reaching this conclusion, the Privacy Commissioner did not embark on any analysis of the definition in FOIPP, nor did heconsider the definition of personal information within the whole FOIPP scheme and the scheme of development permits granted underthe authority of the MGA and the permitted review by the public of those permits. [63] Further, in considering whether the information was personal, the Privacy Commissioner was obligated to do a contextualanalysis to determine if the information was indeed personal information in the context of the FOIPP legislation in its entirety and in thecontext of planning legislation, that is MGA.

He failed to do so. [64] As noted by our Court of Appeal in Armstrong v. International Brotherhood of Boilermakers, Iron Ship Builders,Blacksmiths, Forgers and Helpers, Local Lodge No. 146, 2010 ABCA 326, 326 D.L.R. (4th) 263 the entire context of the Act isimportant to statutory

interpretation (at para. 34) : When embarking on an exercise of statutory

interpretation, courts must have regard to the words of the provision, "read in their entirecontext and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of[the legislature]": Rizzo v. Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27 at para. 21. Sullivan, in the 5th edition of hertext, suggests that statutory

interpretation requires an analysis of the textual meaning of the language, reflective of legislative intent andin compliance with established legal norms: Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham, ON: LexisNexisCanada Inc., 2008) at 2-3. [65] To put the definition of "personal information" in context, I note that the purpose of PIPA is: 3. ...to govern the collection, use and disclosure of personal information by organizations in a manner that recognizes both the rightof an individual to have his or her personal information protected and the need of organizations to collect, use or disclose personalinformation for purposes that are reasonable. [66] The purposes of FOIPP are set out in s. 2 of the Act: 2 The purposes of this Act are (

a) to allow any person a right of access to the records in the custody or under the control of a public body subject to limited andspecific exceptions as set out in this Act, (

b) to control the manner in which a public body may collect personal information from individuals, to control the use that a publicbody may make of that information and to control the disclosure by a public body of that information,

(

c) to allow individuals, subject to limited and specific exceptions as set out in this Act, a right of access to personal informationabout themselves that is held by a public body, (

d) to allow individuals a right to request corrections to personal information about themselves that is held by a public body, and (

e) to provide for independent reviews of decisions made by public bodies under this Act and the resolution of complaints under thisAct. [67] Thus, FOIPP involves broader issues of public accountability of public bodies and a balancing of private interests with publicscrutiny of decisions that affect others, while PIPA involves the narrower sphere of private organizations' access and use of personalinformation.

However, even in the context of PIPA, our Court of Appeal has recently stressed the importance of balancing privacy withthe need for use of information (at para. 34: The statute recognizes two competing values: the right to protect information, and the need to use it. When Bill 44 was discussed inCommittee, the Minister of Government Services stated: When it comes to the reasonable standards in

section 2, the bill sets the standard for compliance with the act, and that standard is thereasonableness standard. This standard is important because it ensures that the act is flexible for small and medium sized businesses. Ifbusinesses act reasonably, they have no problem with complying with the act. (Hansard, November 25, 2003) The statute does not give predominance to either of the two competing values, and any

interpretation which holds that one must alwaysprevail over the other is likely to be unreasonable. [68] Further, the Privacy Commissioner has noted the different purposes between PIPA and FOIPP in another decision - Manulife(Re), [2005] A.I.P.C.D. No. 52, OIPC File Reference P0197 (at para. 25): While I have been assisted by previous decisions under

section 55 of the FOIPP Act, I have nonetheless been guided by PIPA'slegislative purposes and intent, which are different from those set out in the FOIPP Act. The FOIPP Act applies to Alberta publicbodies, and was intended to foster open and transparent government. Through the FOIPP Act, individuals are granted a right of access torecords in the custody or under the control of a public body. The ability to gain access can be a means of subjecting public bodies topublic scrutiny.

The access provisions of PIPA allow individuals to know what personal information of theirs is in the custody or underthe control of an organization, and to ensure it is accurate and complete. [69] Further, principles of statutory

interpretation provide that all the words be given meaning and that it is presumed that thelegislature intended a purpose for each word: "In employing a statutory definition, we must ascribe meaning to each word that is found."per McClung JA in R. v. Crowchild, [1987] A.J. No. 167 (CA). The Privacy Commissioner failed to consider these basic principles. [70] In particular, the Privacy Commissioner did not consider the meaning of "personal information" in light of the enumerationset out in s. 1(

n) of FOIPP. The principles of noscitur a sociis and ejusdem generis may be applied to limit general terms, as noted by theSupreme Court of Canada in National Bank of Greece (Canada) v. Katsikonouris, (SCC), [1990] 2 S.C.R. 1029 (atpara. 93): As we know, in accordance with the rule of

interpretation noscitur a sociis and its particular application, the ejusdem generis rule, thegenerality of a term can be limited by a series of more specific terms which precede or follow it. Professor Côté writes in this regard (TheInterpretation of Legislation in Canada (1984), at p. 242): Noscitur a sociis helpfully draws attention to the fact that a statute's context can indicate a meaning far more restrictive than that found inthe dictionary.

[ 71 ] Here, the general words ("personal information") are followed by the specific words particularized in the list (s. 1(n)(

i) to (ix)). This suggests that the definition of personal information in FOIPP should be limited by the list that follows. While the enumeration is not exhaustive because the list is prefaced with the term "including", other unenumerated examples falling within the definition must be in the same type or nature as the enumerated list. Therefore, the Privacy Commissioner should have considered the context of the definition when interpreting the words "personal information" in s. 1. [ 72 ] Moreover, in Re Sheptycki , Order No. P2007-002 , the Privacy Commissioner commented on the differences between the

definitions of "personal information" in FOIPP and PIPA, noting that the FOIPP definition is more restrictive in that in excludes "information about an individual the opinions that individual expresses about someone else". He notes (at para. 21): Further more, it is not clear the two statutes treat subject matter that is sufficiently similar to import the principle. Even if they do, it would be wrong to try to force consistency upon these distinct

definitions for the sake of the interpretive principle. I do not think it proper to adopt a definition from another, albeit related, statute, that legislates a meaning for a term that is contrary to common perception. [ 73 ] Here, the documents before me and before the Privacy Commissioner show only the builder's name; they do not include Mah's name. The address of the proposed building is evident without the City showing it to the neighbour. There was no other information included in the list in s. 1(

n) nor in the nature of the information included in 1(

n) that could have covered the plans held by the City and for which Mah, through her builder, sought a building permit. [ 74 ] Finally, it was incumbent on the Privacy Commissioner to consider the definition of "personal information" in the context of planning legislation (the MGA ) and the requirement for notification to persons affected by proposed developments, i.e. the Commissioner ought to have given a more thorough analysis of s. 2(

e) of FOIPP as it relates to planning matters. [ 75 ] The Privacy Commissioner simply could not, on the facts and on the law, have concluded that the construction plans were personal information in the context of FOIPP and the MGA . ii. S. 17(2)(

g) of FOIPP [ 76 ] The next reason given by the Privacy Commissioner for finding that the construction drawings were personal information was based on an

interpretation of s. 17(2)(

g) of FOIPP . That

section reads as follows: 17(2) A disclosure of personal information is not an unreasonable invasion of a third party's personal privacy if (

g) the information is about a licence, permit or other similar discretionary benefit relating to (ii) real property, including a development permit or building permit, that has been granted to the third party by a public body, and the disclosure is limited to the name of the third party and the nature of the licence, permit or other similar discretionary benefit, [ 77 ] First, the legislation in this

section says that it is not an unreasonable invasion of privacy if the disclosure is about a permit relating to real property as it is in this case. Second, there is a caveat to the first part of the section, that is, the personal information disclosed must be limited to the name of the third party and the nature of the permit (discretionary benefit). [ 78 ] The Privacy Commissioner assumed that the inclusion of this

section in the legislation meant that "information relating to permits obtained for the purposes of building a house is personal information". In my view, it was unreasonable for the Privacy

Commissioner to treat this section, a

section that defines what is excluded from the presumption of an unreasonable invasion of privacy (in s. 17(4)), as a definition of what constitutes "personal information", a term defined in some detail in s. 1(n). [ 79 ] Section 17(2) was intended to ensure that if information about a building permit included information that fell within the definition of "personal information", limited to the third party's name and the nature of the permit, the release of that information would not be an unreasonable invasion of personal privacy.

Exclusion from the presumption of "unreasonable invasion of personal privacy" does not necessarily mean inclusion in the definition of "personal information". For that the Commissioner was obliged to analyse the definition of "personal information" in FOIPP . [ 80 ] The Privacy Commissioner then considered whether the information released came within the exception in s. 17(2), by interpreting the phrase the "nature of the ... permit". He looked to the definition of "nature" in the Canadian Oxford Dictionary : ...

" nature", when it appears in the phrase, "the nature of" usually means "characteristically resembling or belonging to the class of " and concluded that the phrase meant only the class or type of permit, that is, the City could not disclose the actual exterior drawings. This

interpretation, the Privacy Commissioner held, was consistent with the purpose of s. 17(2)(

g) to ensure that public bodies are accountable and transparent when they issue discretionary licenses and permits. [ 81 ] This

interpretation is unreasonable on its face. Limiting the word "nature" to class or type, in fact, contradicts the purpose of the section. If all the information that is available to neighbours is the fact that a building permit, as opposed to a development permit, was issued with some undisclosed variances, there is no transparency since persons affected by the development would not be able to obtain useful information about the specifics of the proposed development, such as the nature of the variances.

As the City notes, the affected neighbours would be forced to appeal to the SDAB to see the proposed construction drawings, leading to more appeals. [ 82 ] Further, the first definition of "nature" in the Canadian Oxford Dictionary (Don Mills: Oxford university Press, 1998) is "a thing's or person's innate or essential qualities or character ( not in their nature to be cruel; is the nature of iron to rust )". The essential quality of a permit is much broader than merely the class or type of permit.

The essential quality or "nature of the permit" must include enough information about the specifics of the development permit to permit affected persons to determine how it will affect them and whether they have a basis for appeal. [ 83 ] Whether information is "personal information" is squarely within the jurisdiction of the Privacy Commissioner and goes to the heart of his decision making. Therefore, whether information is personal information is a decision subject to a reasonableness review.

Therefore, I return the decision to the Privacy Commissioner to consider whether construction drawings are personal information within the context set out in these reasons. 3. If personal information was disclosed in the construction drawings, was this disclosure contrary to

Part 2 of FOIPP? [ 84 ] If I am wrong and the construction drawings are personal information, then

Part 2 of FOIPP may provide an exception under which a public body can disclose such information without breaching FOIPP . The first

section in

Part 2, s. 40(1), sets out those exceptions, which include: 40(1) A public body may disclose personal information only (

a) in accordance with

Part 1, (

b) if the disclosure would not be an unreasonable invasion of a third party's personal privacy under

section 17,

(

c) for the purpose for which the information was collected or compiled or for a use consistent with that purpose, ... (

e) for the purpose of complying with an enactment of Alberta or Canada or with a treaty, arrangement or agreement made under an enactment of Alberta or Canada, (

f) for any purpose in accordance with an enactment of Alberta or Canada that authorizes or requires the disclosure ... [ 85 ]

Section 41 of FOIPP provides: For the purposes of sections 39(1)(

a) and 40(1)(c), a use or disclosure of personal information is consistent with the purpose for which the information was collected or compiled if the use or disclosure (

a) has a reasonable and direct connection to that purpose, and (

b) is necessary for performing the statutory duties of, or for operating a legally authorized program of, the public body that uses or discloses the information. [ 86 ] The Privacy Commissioner dealt with this aspect of the decision in two parts – the February 28 meeting and the access request. He held that the February 28 meeting in which the drawings were shown to the neighbours was in contravention of

Part 2 of FOIPP , while the response to the access request was authorised by

Part 2 of FOIPP . Therefore, I must determine only whether the Privacy Commissioner's decision regarding the February 28 meeting was correct. [ 87 ] The Privacy Commissioner first considered the City's argument that if it disclosed personal information, it did so in conformity with s. 40(1)(c), relying on s. 814.23 of the City of Edmonton Bylaw 12800. That

section provides that a Development Permit application requires the development permit applicants to disclose the requested variances to the affected parties. The Privacy Commissioner noted that this is an obligation imposed on the applicant, not the public body, concluding (at para. 51): The purpose of this provision is not to enable the Public Body to provide documents to neighbours or to respond to access requests under the FOIPP Act. Rather, the purpose of the Public Body's collection of this information is to satisfy itself that an applicant gave appropriate notice to other parties .

I find that the Applicant's personal information was not disclosed for the purpose for which it was collected under

section 814.23 of Bylaw 12800, as the information the Public Body collects under this provision is not collected so that the Public Body may disclose it to neighbours at meetings after the appeal period has ended or respond to access requests under the FOIPP Act . (Emphasis added) [ 88 ] The Privacy Commissioner then went on to analyse whether the disclosure was pursuant to s.40(1)(e) - disclosure to comply with an enactment of Alberta, including a by-law.

But he noted again that the by-law only requires the applicant to provide the information, again stressing that this duty arises as part of the Development Application process that ends once the appeal period expires. [ 89 ] The Privacy Commissioner then examined whether the City had disclosed information pursuant to s. 40(1)(b) – the disclosure would not be an unreasonable invasion of privacy. In particular, he looked to s.17(5)(c) – whether the personal information was relevant to a fair determination of the applicant's rights.

The City argued that the information was disclosed pursuant to the neighbour's right of appeal, but the Privacy Commissioner dismissed this argument because the appeal period had expired when the disclosure was made.

[ 90 ] The City argues that the information released when the neighbour was shown the construction drawings was done in accordance with

Part 1, and therefore complied with s.40(1)(a); that is consistent with the finding I reached under the second issue – this information was not "personal information" and therefore was disclosed in accordance with

Part 1. [ 91 ] Moreover, the City argues, the disclosure was not an unreasonable invasion of privacy under s. 17 thus complying with s. 40(1)(b). Further, the construction drawings formed part of the development permit application process and this information was collected in furtherance of achieving orderly development in the City under s. 40(1)(c). Orderly development includes ensuring that those affected by development are given an opportunity to be informed about the nature of the development. Moreover, the City's actions were taken to comply with the MGA , and therefore the disclosure falls within s. 40(1) (e): see

Part 17 of the MGA ,

section 617. [ 92 ] I conclude that the Privacy Commissioner was unreasonable in his

interpretation and application of municipal planning law within the context of FOIPP . a) Section 40(1)(b) [ 93 ] The personal information disclosed at the meeting related only to the exterior drawings of the proposed development.

Section 17(5) sets out a number of factors to consider when determining whether disclosure is unreasonable, including that the disclosure is desirable for the purpose of subjecting the activities of a public body to public scrutiny, that the personal information is relevant to a fair determination of the applicant's rights, and that the personal information has been supplied in confidence. [ 94 ] The question of whether disclosure constituted an unreasonable invasion of privacy under s. 17 is closely tied to the Privacy Commissioner's conclusion that information about a permit is not an unreasonable invasion of privacy if the information that is disclosed is limited to the type of permit.

As noted previously, this was an unreasonable conclusion. [ 95 ] Disclosure of the plans was also desirable because it subjected the Development Officer's exercise of discretion to grant the variances to public scrutiny, and eventually to appeal. We must not lose sight of the fact that the Development Officer granted variances; these variances are discretionary benefit. The City argues, and I agree, that in a free and democratic society it is imperative that, when the state grants discretionary benefits to individuals, it must do so in an open and transparent manner.

Citizens must have confidence the state is acting impartially and fairly. Allowing affected individuals, like the neighbour, to determine exactly what benefits are granted is a necessary part of the planning process. [ 96 ] The City was also required to consider whether the personal information was relevant to a fair determination of the neighbour's rights. In order for that neighbour to know whether to challenge of the development permit, he or she needed to see what Mah was proposing.

Clearly, the neighbour did not need to see what was inside Mah's home, but in order to consider whether to oppose the variances granted by the Development Officer, she needed to know the location of the proposed dwelling and other matters including whether shrubbery and trees were being cut down and what other exterior improvements were being made that may infringe on her use of her property. [ 97 ] Moreover, under Edmonton Zoning Bylaw 12800, enacted pursuant to

part 17 of the MGA , if the Development Officer grants a Class B development (at issue here) it must notify the owners of nearby lands of the development permit to enable those owners to appeal the development permit if they wished (s.20.1 of the Bylaw). The fact that the appeal period seemed to have passed was immaterial, as the neighbour was able to persuade the SDAB to hear the appeal. It is not for the Privacy Commissioner or me to determine whether the SDAB had authority to do that.

Clearly, if the neighbour had not received the information about the proposed development and the approval of the development permit with variations, that neighbour would not have had sufficient information to determine whether she should appeal. In my view, it was clear that the disclosure was relevant to a fair determination of the neighbour's rights. [ 98 ] Moreover, the plans were not provided by Mah to the City in confidence. In fact, the plans would eventually have been available to the public before an SDAB appeal hearing under s. 686(4) of the MGA . b) s. 40(1)(

c) and 40(1)(e)

[ 99 ] In my view, the Privacy Commissioner erred when he concluded that this information was collected by the City to satisfy itself that Mah gave appropriate notice to other parties. This

interpretation of the purpose of the planning provisions of the MGA is both incorrect and unreasonable. The overriding intention of the legislation, both the MGA and the Zoning bylaw, is to ensure that persons affected by developments are provided with adequate information, so that they can make an informed decision about whether to appeal a permit. [ 100 ] It is absurd to suggest, as the Privacy Commissioner appears to suggest, that the Development Officer could only provide the neighbour with a description of the variances and not with the drawings of the exterior of the proposed residence.

In any event, the bylaw required Mah to contact all affected parties to outline any requested variances and to solicit the neighbour's comments on the application, but the neighbour unfortunately was away at the time that this took place.

This requirement demonstrates that the overriding intention of these provisions is to ensure that individuals who may be affected by developments that do not comply with the bylaw are provided with notice of the proposed development and given the opportunity to express concerns. [ 101 ] The only logical and common sense way to do this is to show the drawings of the building on the land. If those drawings revealed the interior of the building, this might be an invasion of personal privacy.

It is necessary for a neighbour to be able to make an informed decision as to whether that development will interfere with the neighbours' property interests, and the only way the neighbour can do so is if the neighbour sees the drawings pertaining to that development. [ 102 ] The City quite properly states that if it is required to stop disclosing construction drawings which form part of development applications to third parties, there will be more appeals to the SDAB so that affected parties can see the construction drawings as part of the required disclosure of all relevant documents under s. 686(4) of the MGA .

This is absurd.

c) Summary [ 103 ] It was reasonable for the City to disclose the construction drawings in the meeting.

The factors to be considered under section 17 (5) tip the balance to the point where the disclosure of construction drawings, even if they are personal information, is not an unreasonable invasion of personal privacy in the circumstances. [ 104 ] Weighing the nature of the personal information, if any, contained in the construction drawings against the desirability of subjecting the activities of the City to public scrutiny and the fact that the information was relevant to a fair determination of the neighbour's rights is clear that the disclosure was not an unreasonable invasion of Mah's personal privacy. [ 105 ] In this regard, the Privacy Commissioner's ruling was both incorrect and unreasonable.

The orders of the Privacy Commissioner are set aside and remitted to the Privacy Commissioner for reconsideration of this issue. IV. Conclusion [ 106 ] I set aside the orders of the Information and Privacy Commissioner F2009-019 and F2009-020 and direct the Office of the Information and Privacy Commissioner to reconsider and determine: 1. If the subdivision and development appeal board is a "public body" under FOIPP ; 2. If personal information was disclosed when the construction drawings were shown to the neighbour; 3.

If personal information was disclosed in the construction drawings, whether this disclosure was contrary to

Part 2 of FOIPP .

Heard on the 28 th day of October, 2010. Dated at the City of Edmonton, Alberta this 6 th day of April, 2011. A.B. Moen J.C.Q.B.A. Appearances: Mark Young The City of Edmonton Branch for the Applicant Ian Wachowicz Parlee McLaws for the Respondent Kim Mah (no appearance) Ritu Khullar for the Privacy Commissioner (no appearance)