Mount Royal University v. Carter, 2011 ABQB 28

Court of Queen ’ s Bench of Alberta Citation: Mount Royal University v. Carter, 2011 ABQB 28 Date: 20110118 Docket: 1001 05048 Registry: Calgary In the Matter of the Freedom of Information and Protection of Privacy Act , R.S.A., 2000,

Chapter F-25 , as amended; And in the Matter of Order F2009-026 issued by the Office of the Information and Privacy Commissioner dated February 25, 2010 Between: Mount Royal University Applicant - and - Information and Privacy Commissioner - and - Glen Carter Respondents _______________________________________________________

Memorandum of Decision of the Honourable Mr. Justice E.C. Wilson _______________________________________________________ Background [ 1 ] This is an application brought by Mount Royal University for judicial review of a decision rendered by an Adjudicator with the Office of the Information and Privacy Commissioner of Alberta. That decision directed Mount Royal University - the Public Body - to give access to Mr. Glen Carter - the Applicant - to certain records. [ 2 ] Mr. Carter requested, in writing, to access information held by the University on September 21, 2008. [ 3 ] On October 28, 2008, Ms.

Gita Werapitiya, the Information Management and Privacy Advisor of Mount Royal University wrote Mr. Carter advising that he would be granted access to some of the records but not to others. Ms. Werapitiya explained the University’s refusal as follows: Some of the records you requested contain information that required to be withheld from disclosure under the Freedom of Information and Protection of Privacy Act. We have severed the excepted information under

Section 17 ‘Disclosure harmful to personal privacy’ and

Section 18 ‘Disclosure harmful to individual or public safety’. [ 4 ] The

Section references were to the Freedom of Information and Protection of Privacy Act of Alberta, hereafter F.O.I.P. [ 5 ] As permitted by F.O.I.P. , Mr. Carter requested a review of the University’s decision. His request to the Information Privacy Commissioner of Alberta is dated November 1, 2008. [ 6 ] Mr. Carter’s explanation for seeking the review was as follows: A finding of fact as to the existence of any lawful excuse for withholding personal information relevant and material to my access request.

My constitutional right to security of person and liberty has been significantly abridged through the malicious, secret processing of personal information on me, and I seek to know as a right founded in law to know the basis of such processing.

I further seek to know what harm has been visited upon me through the behind the scenes activities of security personnel reporting to and under the control and management of the Alberta Solicitor General, the party I allege responsible for the dispersive sharing of personal information on me with “numerous” data controllers in both Canada and abroad. [ 7 ] An attempt to mediate (as authorized by s. 68 of F.O.I.P. ) failed. Mr. Carter asked that the matter proceed to an inquiry (as permitted by s. 69(1) of F.O.I.P. ).

The Privacy Commissioner decided that the inquiry would proceed by way of written representations alone (as permitted by s.69(4) of F.O.I.P. ).

[ 8 ] By letters dated August 26, 2009 to the University and to Mr. Carter, the issues upon which written submissions were sought from the parties were as follows: 1. Does

Section 17 of the Act (disclosure harmful to personal privacy) apply to the records/information? 2. Did the Public Body properly apply

Section 18 of the Act (disclosure harmful to individual or public safety) to the records/information? [ 9 ] The entirety of the University’s December 15, 2009 written submission is comprised of attachments to a brief covering letter signed by Ms. Werapitiya. The significant attachment is a memorandum dated November 13, 2009, written by Mr. William Spring, Manager of Security Services for the University and addressed to Ms. Werapitiya. In that memo Mr. Spring makes no reference to any provision found within F.O.I.P. Instead, Mr.

Spring referenced portions of the Personal Harassment Policy of the University and a Workplace Health and Safety Bulletin from Alberta Employment and Immigration titled Preventing Violence And Harassment at the Workplace . Ms. Werapitiya also provided portions of the University’s Code of Personal Conduct and Code of Student Conduct as additional attachments to her letter. [ 10 ] On February 25, 2010 the Adjudicator released her decision. She found that neither

Section 17 nor

Section 18 of F.O.I.P. would apply to prevent the release of the record at issue. This application asks that I judicially review the Adjudicator’s decision. Standard of Review [ 11 ] I agree with the parties that it is clear from previous decisions of this Court that the appropriate standard of review of the Adjudicator’s decision is reasonableness. That standard was explained in New Brunswick (Board of Management) v.

Dunsmuir , 2008 SCC 9 at para. 47 : Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. The Record in Issue [ 12 ] The record in issue has been read by the Adjudicator.

When the application for judicial review was filed, the record was ordered to be sealed by Nation, J. Her Order permitted the justice conducting the judicial review to also examine it. I have done so. [ 13 ] It may be generally described as a record of what a University employee orally reported of a conversation or conversations involving that employee and Mr. Carter. The employee’s report was received and typed up by an officer with the University’s Security and Public Safety office.

The record is a two page document entitled “Mount Royal College, Security and Public Safety Incident Report, case number 07-05-05.” [ 14 ] The content of the record is described in general terms at paragraph 12 of the Adjudicator’s decision. However, I wish to identify one minor discrepancy. The officer recording the report showed his title as being “report writer/investigator”. In her decision, the Adjudicator chose to refer to this officer as the “investigator”. However, to be clear, the record reveals that the officer’s activities were restricted to writing the report and to giving directions to the employee.

There is no indication in that report that anyone performed any type of investigation nor was planning on conducting some type of investigation as a result of the information received from the employee. Thus the officer was a report writer - not an investigator.

[ 15 ] The University argues that it was prevented from releasing the record in issue due to the provisions of Section 17 (1) and Section 18 (1) (

a) of F.O.I.P. . The University underscores that it does not have to establish that both provisions have application. Only one need suffice. I agree with that submission. Accordingly, I will examine each provision in turn. Section 17 (1) of the Freedom of Information and Protection of Privacy Act ( F.O.I.P. ) [ 16 ] Section 17 (1) reads as follows: 17

(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. [ 17 ] In this case “public body” relates to the University. “Applicant” relates to Mr. Carter.

The definition of “third party” is as follows: 1(r) “third party” means a person, a group of persons or an organization other than an applicant or a public body. [ 18 ] The University agrees that the Adjudicator properly recognized that individuals who are employees of the public body may or may not be a “third party” regarding certain “personal information” depending upon whether the employee was acting in a representative capacity i.e., the employee’s actions essentially then becoming the actions of the public body and, secondly, whether the record, in any event, contains information of a personal character of the employee that may still not be disclosed. [ 19 ] The pertinent portions of the definition of “personal information” are as follows: 1(n) “personal information” means recorded information about an identifiable individual, including (

i) the individual’s name ... (ix) the individual’s personal views or opinions, except if they are about someone else [ 20 ] The Adjudicator was guided by previous Commission decisions where this issue of “personal information” of an employee of a public body was considered. [ 21 ] At paragraph 10 of her decision the Adjudicator provided a lengthy quotation of one such decision (Order F2008-028).

Counsel for the University agrees that that quotation correctly sets out the guiding principles for the resolution of this issue. [ 22 ] From that quotation I extract the following brief comments, which fairly set out the issue: Disclosure of the names, job titles and/or signatures of individuals is not an unreasonable invasion of personal privacy where they were acting in formal or representative capacities. (emphasis in original) ...

Disclosure of the names, job titles and/or signatures of individuals acting in their professional capacities is not an unreasonable invasion of personal privacy. (emphasis on original) ... Where third parties were acting in their employment capacities, or their personal information exists as a consequence of their activities as

staff performing their duties or as a function of their employment , this is a relevant circumstance weighing in favour of disclosure. (emphasis on original) ... In my view, therefore, it does not matter who the particular individual is in order to conclude, generally, that

Section 17 does not apply to personal information that merely reveals that an individual did something in a formal, representative, professional, official, public or employment capacity. It has also been stated that records of the performance of work responsibilities by an individual is not, generally speaking, personal information about that individual, as there is no personal dimension...

Absent a personal aspect, there is no reason to treat the records of the acts of individuals conducting the business of government - and by extension other bodies and organizations - as “about them”. [ 23 ] Clearly mindful of these principles, the Adjudicator stated the following at paragraph 11 of her decision: If information [contained in the record in issue] is about employees of a public body acting in a representative capacity the information is not personal information, as the employee is acting as an agent of a public body. In Order 99-032, the former Commissioner noted: The Act applies to public bodies.

However public bodies are comprised of members, employees or officers, who act on behalf of public bodies. A public body can act only through those persons. In other words, the actions of employees acting as employees are the actions of a public body. Consequently, information about an employee acting on behalf of a public body is not information to which

Section 17 applies, as it is not the personal information of a third party. If, however, there is information of a personal character about an employee of a public body, then the provisions of

Section 17 may apply to the information. I must therefore consider whether the information about employees and the records of issue is about them acting on behalf of the public body, or is information conveying something personal about the employees. [ 24 ] With these distinctions clearly in mind, the Adjudicator reviewed the contents of the record in issue. Commencing at paragraph 12, the Adjudicator concluded that the details of the incident were reported by the employee as part of her duties as an employee of the public body.

The employee’s reference to the University’s “enforcing guidelines” in her oral report clearly supports the Adjudicator’s decision (see paragraph 15 of the decision). The employee’s “personal opinion” of Mr. Carter as recorded by the officer was found by the Adjudicator to have been based upon the employee’s experience(

s) with Mr.

Carter and was provided by the employee in her “representative capacity, as part of her employment duties” and fell within the exception regarding personally held opinions found in Section (1)(n)(ix) of F.O.I.P. [ 25 ] The Adjudicator found that the information in the record in issue concerning the employee was about her as a representative of the public body and that, accordingly, s.17 did not apply to prevent disclosure. [ 26 ] The University argues that the Adjudicator’s decision was unreasonable. [ 27 ] First, the University argues that “there was nothing in the material before the Adjudicator to suggest that the third party [the employee] was directed by the [University] to make a report of the incident or that she was under an employment obligation to do so.” But, in fact, attached to the November 13, 2009 memorandum of Mr.

William Spring was an extract from the University’s Personal Harassment Policy from which he quotes: It is the responsibility of the Mount Royal community to ensure that the work and learning environment are free from personal harassment and the need to promote a harassment free environment. [ 28 ] Obviously a Mount Royal employee is part of the Mount Royal community. Secondly, this stated responsibility can only mean that when a member of that community suspects that such behaviour may occur then they have a responsibility or “duty” to not simply stand aside and remain mute.

It must also be noted that the definition of harassment in that policy is breathtakingly broad. Nothing in that policy tells the community member where to go in order to make those concerns known. In this case, we do not know why this employee chose to speak with the security officer.

[ 29 ] Second, the University argues that the employee’s “choice” to make her information known to the security officer was “based on her personal concerns. It was her personal interests that she sought to protect, not those of the [University].” I offer two replies. The suggestion that the employee had a “choice” whether to do something does not actually reflect the proactive response that must be reasonably inferred from the University’s policy to which I have made earlier comment.

Further, there is absolutely nothing in the record in issue to indicate that the employee was advancing or identifying any personal interest at all. [ 30 ] Thirdly, the University argues that the Adjudicator failed to give appropriate or any consideration of the employee’s “personal aspect” contained within the information found in the record at issue.

The University points to certain remarks contained within a decision described as Order F2008-031(Alberta Insurance Council) from which, at paragraph 131, the following was said: While it is arguable that providing information to the Public Body ... for the purpose of their investigations was part of the work responsibilities or professional duties of these individuals, I find that the fact that they worked or dealt closely with the Applicant, and may possibly face consequences from him if he knew that they provided information about him, adds a personal dimension to their activities.

One of the affected parties states that he would be “very concerned” if the Applicant has access to his name. Another affected party consents to her “business” correspondence being disclosed, but not her more “personal correspondence and conversation with the Public Body.” [ 31 ] Presuming that these remarks properly inform as to the extent of what is meant by “personal information”, (a matter which I do not have to decide in this case) there is absolutely nothing in the record in issue to indicate that the employee here expressed any similar sentiments. Nor could any reasonable

interpretation of that record support that such concerns might be inferred. Indeed, there is nothing in the record to indicate that the employee was even concerned with Mr. Carter’s reaction should he learn the contents of the report. Rather, the employee was concerned about Mr.

Carter’s possible reaction should he receive a letter at some time in the future from a branch of the Government of Alberta. (see paragraph 30 of the Adjudicator’s decision). [ 32 ] Given the significant factual differences, the remarks from the Insurance Council case simply have no bearing on the case at bar. [ 33 ] The University, however, submits that any lacunae in the record in issue is cured by some of the contents of the November 13, 2009 memo from Mr. Spring, Manager of Security Services for the University. [ 34 ] In that memo Mr.

Spring wrote, inter alia ; I personally conducted the investigation and follow up of Mount Royal University case No. 07-05-05. ... The employee requested that her involvement in the case be kept confidential.

The employee remains traumatized by this incident and continues to fear retaliation and concern for her safety. [ 35 ] The University contended that these remarks must resolve the issue in favour of the University’s position of non-disclosure and that the Adjudicator’s decision to the contrary must therefore have been unreasonable. [ 36 ] I disagree. [ 37 ] In her detailed consideration of the University’s claim advanced under

Section 18 of F.O.I.P. , the Adjudicator expressed some dissatisfaction with Mr. Spring’s memo inasmuch as he made two factual claims which were clearly at odds with the content of the record itself. First, Mr. Spring indicated that Mr. Carter was not yet a student at the time of the “incident.” In fact, he clearly was. The second error was Mr. Spring’s assertion that “the suspect in this case behaved in a manner deemed to be threatening to the point where Security Services was called to the scene (Enrollment Services) to assist with the confrontation.” This is entirely incorrect.

Security Services were not called out. Nor were they called out to assist with a confrontation. Further, the employee’s remarks in the original report do not suggest that she was of the view that Mr. Carter’s behaviour was “threatening.”

[ 38 ] The University dismisses Mr. Spring’s errors of fact as being but a careless recitation of the circumstances. With respect, I disagree. [ 39 ] Regarding the erroneous assertion that Carter was not a student, I suggest that it would be a matter of heightened concern to the University if some individual, who was not a student (i.e., therefore not even a member of the Mount Royal “community”) was on campus and involved in some sort of incident with a member of the University community. Secondly, and more importantly, the mis- description of the incident by Mr.

Spring served to support his claim that as a result of Mr. Carter’s threatening behaviour, the employee contacted security services due to a pressing and immediate concern for her own safety. In fact, the record reveals that not only did the employee not call Security Services for their assistance, but she delayed for over four and a half hours after her conversation(

s) with Mr. Carter before she made her way to Security Services in order to speak with the officer. [ 40 ] What further undercuts any claim that the employee was experiencing some form of trauma or fear for her own safety is the fact that having received the information from the employee, the security officer’s advice to the employee was to have her return to her office and advise all her colleagues of the situation.

Clearly the security officer didn’t observe any of this alleged fear or trauma to even offer any safety advice. [ 41 ] Given the significant factual inconsistencies between the initial report and the memo some two and a half years later from Mr. Spring, it is not surprising that the Adjudicator preferred the former over the latter when it came time to determine the true state of affairs. In these circumstances, I find her decision to be quite reasonable. [ 42 ] Like the Adjudicator, I also have some difficulty with the contents of Mr. Spring’s memo.

I do not know what he means when he states that he “personally conducted the investigation and follow-up” in this matter. He does not outline what he did, when he did it nor with whom he may have spoken. He does not specifically claim to have even spoken to the employee. His source of information concerning the employee’s feelings is not provided inaccurate nor dated. The University asserts that he could only be meaning that he spoke with the employee firsthand. That may be so, but it may be just as possible that he spoke with someone else who provided inaccurate hearsay information to Mr.

Spring. [ 43 ] It should also be borne in mind that all that the University had told Mr. Carter in their October 28, 2008 letter was that the requested information was being withheld under

Section 17 as “disclosure harmful to personal privacy.” Yet the basis for the University’s decision is only to be found, if at all, in Mr. Spring’s memo which is dated over a year later. It rather begs the question – if the University’s decision of October 2008 was premised upon anything learned by Mr. Spring as a result of his “personal investigation and follow-up”, why would his memo not have pre-dated the University’s letter to Mr. Carter? [ 44 ] Further, it is rather curious that Mr.

Spring fails to provide any details or specifics of his “personal investigation and follow- up” yet takes time to copy and attach to his letter various portions of the University policy as well as Alberta Government reports. [ 45 ] It is worthy of recall that there was a burden of proof reposing upon the University when providing its representations for the Adjudicator’s inquiry: 71(1) If the inquiry relates to a decision to refuse an applicant access to all or part of a record, it is up to the head of the public body to prove that the applicant has no right of access to the record or part of the record. [ 46 ] The University finds fault with the Adjudicator’s analysis of the information, yet seemingly fails to appreciate that it provided little information or evidence upon which the Adjudicator could have reasonably relied in order to come to a decision that the University was seeking.

Further and, in any event, what little information was supplied was somewhat self-contradictory. [ 47 ] In conclusion, I find that the Adjudicator’s decision was one that she could reasonably have come to given the material she had to consider, the University’s representations and the governing authorities which guided her analysis. Section 18(1)(

a) of the Freedom of Information and Protection of Privacy Act ( F.O.I.P. )

[ 48 ] Section 18(1)(

a) reads as follows: 18(1) The head of a public body may refuse to disclose to an applicant information, including personal information about the applicant, if the disclosure could reasonably be expected to (

a) threaten anyone else’s safety or mental or physical health, [ 49 ] While much of what the University submits under this heading relates to a discussion of the memo of Mr. Spring, which I have dealt with in my discussion of Section 17(1) of F.O.I.P. , I do wish to make some additional comments. [ 50 ] The University faults the Adjudicator for holding that “the investigator [Mr. Spring] has not provided the source of his information regarding the employee’s mental state”. Indeed the University describes this holding as being “clearly irrational”.

The University asserts that the only possible source would have been the employee herself. I disagree. For all anyone knows, this information came from a hearsay source and, in any event, may have been dated information. Further, given Mr. Spring’s earlier identified factual errors, the Adjudicator would be open to criticism had she accepted any factual claims advanced by Mr. Spring, without some better specificity or detail being attached to them. One is also left to ponder whether the language used by Mr. Spring repeat the actual words of the employee herself or are simply Mr. Spring’s sense or

interpretation thereof. To state the obvious, it would have been such a simple matter for Mr. Spring to have explained himself. [ 51 ] The University also submits that the existence of the employee’s “fear, trauma and expectation of confidentiality is readily inferred from the fact that she attended at the security office to report the confrontation”. [ 52 ] But in fact, and as pointed out earlier in these reasons, the employee waited some four and a half hours before attending the security office. This belies any claim that she had experienced some “fear and trauma”.

Further, there is nothing contained in the record itself to suggest that the employee had any such anxieties. The employee’s only concern was with a possible reaction from Mr. Carter upon receiving a letter from a government office which presumed of course, that such a letter might be sent. See paragraph 30 of the Adjudicator’s decision.

The University appears to ignore this finding of the Adjudicator which is fully supported by the record in issue. [ 53 ] As for the claimed “expectation of confidentiality”, the reality is that the security officer advised the employee to speak to her colleagues to advise them of the incident. Presumably the employee did so. Regardless, the officer’s advice clearly indicates that he did not view the matter as being confidential qua the employee. Indeed, if the employee followed that advice, then she could not reasonably have expected that there was any confidentiality attaching to her report of the incident.

It might be noted that the record in issue does not suggest that the employee was taken aback nor expressed any concern or surprise with the security officer’s advice, let alone that she sought confidentiality. And again, there is no detail provided in Mr. Spring’s memo to assist in understanding the possible details of any claimed confidentiality request. [ 54 ] Lastly, the University has submitted that Mr. Carter’s choice of language in his written submissions to the Adjudicator should raise concerns that the release of the record in question could endanger the employee’s “health and safety”.

See paragraph 51 and 52 of the University’s written submissions. [ 55 ] The University is apparently suggesting that the language used by Mr. Carter might signal a possible emotional, psychological or psychiatric condition from which he suffers. [ 56 ] However, a court should not quickly draw such ominous inferences absent some appropriately qualified opinion to support such suggestions.

I note that Section 18(2) of F.O.I.P. specifically permits a public body to refuse to disclose information, if in the opinion of a physician, psychologist, psychiatrist “or any other appropriate expert depending on the circumstances of the case”, the disclosure “could reasonably be expected to result in immediate and grave harm to the applicant’s health or safety.”

[ 57 ] While that provision only relates to a concern with an applicant’s health or safety, I suggest that that provision should help inform a public body if it wishes to assert that an applicant’s written submission suggests some sort of instability and that he might, after receiving disclosure, react in an unpredictable and potentially harmful manner to other persons. The Act does not envision that public bodies will refuse disclosure premised upon

interpretations rendered by individuals who lack any expertise or experience to be able to offer credible psychological or psychiatric insights. [ 58 ] Again, it is important to recall that the employee never expressed any concern with the release of the information contained in the record an issue. It was only with regard to Mr. Carter’s possible reaction should he receive a letter at some time in the future from a government office. Even then, of course, Mr. Carter’s reaction or non-reaction would depend, presumably, on the content of that letter. [ 59 ] In conclusion, I am satisfied that the Adjudicator’s finding that Section 18(1)(

a) of F.O.I.P. did not apply to the information in the records at issue, was a decision that was reasonably open to her given the material she had to consider, the University’s representations and the governing authorities which guided her analysis. Conclusion [ 60 ] For the foregoing reasons, the University’s application to have the decision of the Adjudicator set aside is denied. The order of the Adjudicator is confirmed.

Thus, the stay of the order previously imposed by Section 74(4) of F.O.I.P. is removed. [ 61 ] Pursuant to the order of Nation, J. dated October 5, 2010 I confirm that I have reviewed the sealed document in camera and, pursuant to paragraph 5 of that order, the Clerk of the Court is hereby directed to reseal the document and to hereafter treat the sealed document as remaining sealed. [ 62 ] Upon the expiry of the appeal period the Clerk of the Court shall return the sealed document to the Information and Privacy Commissioner of Alberta in care of his counsel, pursuant to Section 56(5) of the Freedom of Information and Protection of Privacy Act .

Heard on the 26 th day of November, 2010. Dated at the City of Calgary, Alberta this 18 th day of January, 2011. E.C. Wilson J.C.Q.B.A. Appearances: Russell D. Albert for the Applicant Glen Carter

Self-Represented