Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 65-1995
November 21, 1995
INQUIRY RE: A decision by the City of Nelson to refuse access by the media
to records of long distance telephone calls made from its offices
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. Introduction
As Information and Privacy Commissioner, I conducted an inquiry on August 4,
1995 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a request by Graham
Currie (the applicant) of KBS Radio in Nelson for review of a decision by the
City of Nelson (the City) to refuse access, under section 22 of the Act, to
long distance telephone records.
The request was for records of all long distance telephone calls made from the
Mayor's office, or for records of all 1-900 telephone calls, or for records of
all long distance telephone calls made from City Hall. The requests were for a
specified time period. The applicant subsequently agreed to limit the scope of
this inquiry to records of all long distance telephone calls to 1-900 telephone
numbers made from Nelson City Hall and from the Mayor's office from February
1994 to February 1995. (Reply Submission of the Applicant, pp. 1, 2).
2. Issue
The issue in this inquiry is whether records of certain long distance
telephone calls made from the offices of a public body should be disclosed, or
whether those which can likely be attributed to a specified individual are
properly severable under section 22 of the Act. The relevant portions of this
section are 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.
22(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. Burden of proof
At an inquiry into a decision to refuse an applicant access to all or
part of a record, the head of the public body must prove that the applicant has
no right of access (section 57(1)). However, under section 57(2), if the
record or part to which the applicant is refused access contains personal
information about a third party, it is up to the applicant to prove that
disclosure of the personal information would not be an unreasonable invasion of
the third party's personal privacy. In this case, the applicant has the burden
of proving that the exception in section 22 does not apply.
4. The records in dispute
The requested records are, in effect, B.C. Tel bills for the City (typically
40 to 60 pages per month), as well as internal computer-generated "Department
Summary Reports" and/or "Extension Detail Reports." The Department Summary
Reports, generated for each Division and/or Department (i.e. Administration,
Finance, Police, Public Works, etc.), purport to list the total number and
total duration of all long distance calls made from each extension during any
one-month time period. The Extension Detail Reports purport to list each long
distance call made from each extension during each specified time period.
5. KBS Radio's case
The applicant submits that the public has a right to access the phone records
in dispute, especially with respect to 1-900 calls:
... the public has a right to know whether or not such calls are or have been
made by users of Nelson City Hall phone systems and to what level. Again,
these are expenses paid by the taxpayers of the City of Nelson and such usage
of the Nelson City Hall telephone system, if it in fact it has occurred, is a
matter of public interest. The information should be accessible by the public.
(Submission of the Applicant, p. 1)
The same arguments apply to calls made from the Mayor's office. In the
applicant's view there can be no impact on third parties from any disclosure
that may occur, if indeed one can even be identified. Even if the information
is "personal information" under the Act (which the applicant denies), "the
desirability of public scrutiny of these records justifies release of the
records" under section 22(2)(a) of the Act.
6. The City's case
The City first contested the applicant's request for access to all
telephone billings from Nelson City Hall, which would include its internal
tracking system. The scope of the original request would include its
switchboard and at least thirty-five private lines. Since Nelson owns its own
electrical utility, some electrical customers in the surrounding area can only
be reached by long distance. The City also has an Employee Assistance Program
to assist employees with various problems:
Several of the professionals used under this program reside in the outlying
areas, [thus] release of our telephone records would indicate which employees
telephone was used to make calls under the Employee Assistance Program, under
which, we guarantee the employees confidentiality. (Submission of the City, p.
2)
The City pointed out that the Mayor is also chair of the Nelson Police Board
and calls made from his office could pertain to policing matters. (Submission
of the City, p. 3)
The City did not cite any specific provisions of the Act to support
non-disclosure of any such information, including any 1-900 calls, except for a
general reference to section 22(3).
7. The third party's case
The third party essentially argues that since the City did not prohibit
personal telephone calls by staff, councillors, or the mayor, and since the
third party paid for all personal long distance calls made from City Hall,
"these phone calls should not be open to the public anymore than phone calls
from my home should be." The third party also submitted that calls made from
any city hall phone could have been made by anyone.
Simply put, the third party regards this access request as an invasion of his
or her personal privacy.
8. Discussion
City policy on personal telephone use
The City's attempt to argue that the records created by these calls by any
staff or elected official do not fall under the Act fails, because it in fact
has control and custody of the records. However, the City made the following
statement on this matter:
Our records indicate that the only 1-900 calls made from City Hall in this
period were personal calls made by a third-party; these calls were not in any
way related to City business and were paid for entirely by the third-party.
During this time period, the City of Nelson did not have any policy which
prohibited the use of City telephones for personal calls, as long as the cost
of the calls were the responsibility of the caller. (Submission of the City,
p. 2)
There is nothing in the Act to prevent the City from having such a policy on
personal telephone use. It is the obligation of the City to monitor that its
telephones are properly used. The evidence in this case indicates that the
City knows how its telephones are being used, at least for personal purposes.
Disclosure harmful to personal privacy
One of the several problems that I have in coming to a finding in this inquiry
is that those making submissions did not tie them, for the most part, to the
specific sections of the Act that are supposed to support their position. This
is not helpful. Applicants, public bodies, and third parties are well advised
to connect the arguments they seek to make to the provisions of the Act.
Section 22(3): Presumed unreasonable invasions of personal
privacy
The City generally believes that this section should allow it to withhold the
records in dispute but suggests that "only the third party can shed light on
whether the release of this information falls under the prohibitions outlined
in Section 22(3) of the Act."
The applicant views the use of City telephones for 1-900 calls as not
resulting "in an unreasonable invasion of a third party's personal privacy."
He argues that other public bodies have chosen to release records of 1-900
calls. (Reply submission of the Applicant, p. 1)
The applicant did not meet the burden set out under section 57(2) of the Act
to prove that disclosure of the personal information at issue would not be an
unreasonable invasion of the third party's personal privacy under section 22.
In particular, I consider that the factors in section 22(2)(e) and 22(2)(h)
apply in this case and outweigh the factor in section 22(2)(a). If the records
are disclosed, the third party will be exposed unfairly to harm, and the
disclosure may also unfairly damage the reputation of the third party. Because
the telephone calls in this case were private, and were paid by the third
party, the public scrutiny factor in section 22(2)(a) should be given less
weight.
I find, under section 22(1) of the Act, that it would be an unreasonable
invasion of the third party's personal privacy for the City of Nelson to
disclose the specific telephone numbers in dispute. Thus the City is required
to refuse access in this case.
As I have noted in my two immediately preceding Orders on the same subject
matter, I regard these decisions as wake-up calls to all public bodies covered
by the Act to develop appropriate written policies about the collection, use,
retention, and disclosure of telephone log records in various formats.
9.
Order
Under section 58(2)(c) of the Act, I require the City of Nelson to refuse
access to the records in dispute to the applicant.
November 21, 1995
David H. Flaherty
Commissioner