Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 66-1995
November 27, 1995
INQUIRY RE: A request by Almforest Aktiengesellschaft to the Ministry of
Environment, Lands and Parks for the identity of an individual who made a
contamination report
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
Wednesday, August 2, 1995 under section 56 of the Freedom of Information and
Protection of Privacy Act (the Act). This inquiry arose out of a request
for review submitted to this Office on May 1, 1995 by Almforest
Aktiengesellschaft (the applicant). On March 30, 1995 the applicant requested
from the Ministry of Environment, Lands and Parks (the Ministry) information
held by the Ministry concerning the identity of an individual or individuals
(the third party) who made a report to the Ministry about mercury contamination
on a mine site owned by the applicant.
The Ministry, by way of a letter dated April 12, 1995, denied access to the
information requested on the grounds that the identity of the third party was
protected by the personal privacy (section 22) and law enforcement (section 15)
provisions of the Act.
The third party was not given notice of this inquiry, because the Ministry was
unable to locate the third party. In writing this Order, I am treating the
third party as a single person, even though there may have been more than one
complainant.
2. The record in dispute
The record in dispute consists of various forms or documents created by the
Ministry, which contain the name of the third party and the details of the
complaint.
3. Issue under review at the inquiry and the burden of proof
The issue under review at this inquiry is whether the records in dispute are
protected from disclosure by sections 15 and 22 of the Act. The relevant
portions of these sections read as follows:
15(1) The head of a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to
(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
(f) the personal information has been supplied in confidence,
...
(3) A disclosure of personal information is presumed to be an unreasonable
invasion of a third party's personal privacy if
At an inquiry into a decision to refuse an applicant access to all or part of
a record, the head of a public body must prove that the applicant has no right
of access (section 57 (1)). In the present case, this means that the Ministry
must substantiate its claim that disclosure would reveal a source of
confidential law enforcement information. However, under section 57(2) of the
Act, the applicant bears the burden of proof to establish that disclosure of
the information requested would not be an unreasonable invasion of the third
party's personal privacy. This means that the owner of the site must prove
that it would not be an unreasonable invasion of personal privacy for it to
learn the name of the individual who reported the mercury contamination to the
Ministry.
4. Almforest's case
Almforest engages solely in forest activities in this province.
Timbered property that it purchased in 1973 in the Nelson Land Title District
includes an abandoned mine site. It believes that the persons who reported
visible mercury at the mine site to the Ministry may be the same individuals
responsible for depositing the mercury on the property. (Outline of Argument,
paragraphs 1-3, 14) This site is now subject to a pollution abatement
order issued by the Ministry on August 9, 1994. Almforest states that "[c]ompliance
with that Order will be exceedingly costly." (Outline of Argument, paragraph
12) A consultant's report on the mercury contamination found it only at a very
specific spot and suggested that the visible mercury may have reached its
current location relatively recently. (Affidavit of H.R. Smith, paragraphs
5-7)
The applicant quotes my Order No. 36-1995, March 31, 1995 in support of its
argument for disclosure of the names of the individuals. Because of the
allegedly "suspicious circumstances surrounding the deposit of mercury on its
property," disclosure of the identity of the third party is critical to a fair
determination of the applicant's rights under section 22(2)(c) of the Act.
(Outline of Argument, paragraph 15) I have presented below other aspects of
the detailed argument of the applicant about specific sections of the Act.
Almforest essentially argues that "the disclosure of the third party's
identity is necessary to further investigate the suspicious circumstances
surrounding the third party's alleged discovery of visible mercury on
Almforest's property." (Outline of Argument, paragraph 22)
5. The Ministry of Environment, Lands and Parks' case
The Ministry bases its grounds for non-disclosure on sections 15(1)(d), 22(1),
22(2), and 22(3) of the Act. Its argument is that disclosure would reveal a
confidential source of law enforcement information and unreasonably invade the
personal privacy of the third party. I have presented below its more detailed
arguments on the application of these specific
sections.
6. Discussion
The most important point that I can make to the applicant is that it could
bring an action in the courts against the Ministry and John Doe if it needs the
record in dispute in this case to establish its legal rights to recover costs
of remediation. The civil and criminal law include mechanisms for redress of
the applicant's grievances in this regard. It is a matter beyond my purview
under the Act, at least based on the evidence submitted to me in this case.
Section 15(1)(d): Reveal the identity of a confidential source of law
enforcement information
The Ministry basically argues that the "administration of the different acts
under the jurisdiction of the Ministry are law enforcement matters." (Argument
for the Ministry, paragraph 4, which the applicant also accepts; see Reply of
the Applicant, paragraph 3) Two examples of such laws that contain offences
that carry with them a number of possible penalties and sanctions are the
Waste Management Act and the Environment Management Act.
(Argument for the Ministry, paragraph 6) I agree with the Ministry that in the
area of the reporting of environmental problems there is a strong rationale not
to reveal the identity of those reporting suspected infringements of such acts.
(Argument for the Ministry, paragraphs 10, 11) In my view, section 15(1)(d)
authorizes such non-disclosure in instances like the present inquiry.
The applicant raises an interesting point with its argument that "the Ministry
has provided no direct evidence that the third party provided information to
the Ministry with either the express or implied assurance that their identity
would remain secret .... [I]t has the onus of establishing that the
information was provided by the third party on a confidential basis." (Reply
of the Applicant, paragraphs 4, 9) The Ministry states that it is in the
process of developing a written policy in response to my suggestion in
Order No. 36-1995. Further, it states that the complainant in the present case was
told of the confidential nature of the reporting. (Reply of the Ministry,
paragraph 8)
Both the applicant and the Ministry have cited my Order No. 36-1995. In my
view, Order No. 36-1995 stands for the proposition, as the Ministry argues,
that law enforcement matters provide greater reason not to disclose the
identity of complainants. (Reply of the Ministry, paragraph 4) I find that
disclosure of the record in dispute in this case would reveal the identity of a
confidential source of law enforcement information.
Section 22(1): The disclosure would be an unreasonable invasion of a
third party's personal privacy
The Ministry's basic argument on this section is that disclosure "of any
identifying material" in this case would be an unreasonable invasion of the
third parties' personal privacy. The Ministry also makes the point that it
will have no control over what this applicant does with the information in
dispute: "This is particularly so given the unsubstantiated allegations and
the spurious evidential links of the applicant." (Argument for the Ministry,
paragraphs 20, 21) Normally, I do not consider relevant the possible uses that
an applicant may make of released information but, in the circumstances of the
present inquiry, it seems very relevant to determining whether disclosure would
result in an unreasonable invasion of the privacy of the third party.
Section 22(2)(c): Personal information is relevant to a fair
determination of the applicant's rights
The applicant, a corporation, argues that it cannot protect its rights without
access to the information in dispute. Although I have some sympathy with its
position in this particular case, my view is that the intent of this particular
provision of the Act is to protect the rights of individuals, not corporations.
The section requires the balancing of competing personal interests, that is the
privacy rights of one individual against another's, when these are thought to
be opposed. It is well accepted that a corporation does not have privacy
rights as such, since privacy is a human right, not a corporate right (the
latter may make claims of confidentiality and secrecy, for example, which are
not at issue in this inquiry). There is also no person associated with the
corporate applicant whose privacy interests are at stake in this matter, which,
in my view, is the concern of this
section.
Thus I agree with the Ministry that disclosure in this case is not necessary
for a fair determination of the applicant's rights. (Argument for the
Ministry, paragraph 23) While the applicant correctly indicates that the
standard is not "necessity" but "relevance," such a distinction makes no
difference to my finding in this current case. (Reply of the Applicant,
paragraph 11)
Section 22(2)(e): The third party will be exposed unfairly to financial
or other harm
The applicant argues that disclosure of the disputed record would not itself
expose the third party to further financial or other harm; that would require
further inquiries into any wrong-doing. (Outline of Argument, paragraph 16) I
do not find this distinction persuasive. In fact, disclosure would be the
first step in an interconnected series of steps that might indeed unfairly
expose the third party to financial or other form of harm. Thus I am somewhat
skeptical of the applicant's argument that "[t]here is no suggestion that
disclosure of the third party's identity would result in physical or
professional retaliation against the complainant. This is not a circumstance
where a disclosure of an informant's identity would lead to concerns for the
informant's well-being." (Outline of Argument, paragraph 18) Common sense
suggests that the informant may in fact face just such risks if he or she is
identified.
In my judgment, the Act is an inappropriate and clumsy vehicle for forcing
such a disclosure for purposes of possible civil or criminal actions. This
should normally be done in the courts.
Section 22(2)(f): The personal information has been supplied in
confidence
The applicant notes that there is no evidence that the third party's
information was supplied in confidence. (Outline of Argument, paragraph 17)
The Ministry, on the other hand and as noted above, has demonstrated its
ongoing practice of treating information supplied under these environmental
protection acts as confidential. Moreover, "[i]t is unreasonable to suppose
that any such complainant will lodge a complaint that has the potential to harm
another person, or company, without an inherent assumption of confidentiality."
(Outline of Argument, paragraph 25) I accept the Ministry's arguments on this
section, based on the somewhat limited evidence submitted to me. But, in my
view, there is some urgency for the Ministry to establish the written
guidelines that I called for in Order No. 36-1995, p. 16.
The applicant made an additional submission on August 16, 1995 concerning two
separate points. The Ministry objected that this letter was not a response to
a change in an affidavit, as my office had requested, but further argument and
therefore inadmissible. After considering the Ministry's objections, I
concluded that the additional submission should be considered. However,
nothing contained in that submission affected my finding on this particular
section.
Section 22(3)(b): The personal information was compiled and is
identifiable as part of an investigation into a possible violation of law,
except to the extent that disclosure is necessary to prosecute the violation or
to continue the investigation
This section is a presumption against disclosure on the grounds that it would
be an unreasonable invasion of a third party's personal privacy. The applicant
attempts to argue that the Ministry did not "compile" the identity; the third
party supplied it. Further, the investigation did not begin until after
receipt of the initial complaint. (Outline of Argument, paragraphs 20, 21) I
do not find these points persuasive. It is fairly clear to me that the purpose
of supplying the original information was to make possible an investigation,
which is indeed what the Ministry did. The Ministry notes that it used
standard reporting forms in the present case, and that the complainant was
under no obligation to provide his or her name. (Reply of the Ministry,
paragraph 10) In my view, this section clearly militates against disclosure of
the disputed information in this particular case of an investigation into a
possible violation of law by the applicant.
The applicant further seeks to argue that the Ministry has shown itself
unconcerned about investigating how visible elemental mercury was deposited on
the property. Thus the applicant needs the record in dispute to conduct its
own investigation. (Outline of Argument, paragraph 21) Unfortunately for the
applicant, this particular section is designed to authorize further disclosures
for a Ministry to conduct additional investigations, which is not the situation
in the current case. The applicant may have remedies under civil or criminal
law to seek alternative means of acquiring the information that it believes it
needs, in a setting where a judge can review the evidence on both sides of the
matter. This is not a task that I can perform under the Act. In this respect,
the Ministry claims that it has requested further information from the
applicant in order to investigate these allegations (which could lead to the
pressing of charges), but no further information has been forthcoming.
(Outline of Argument, paragraph 28) The Ministry's "conclusion" is that the
mercury resulted from historical mining/milling activities on the site. (Reply
of the Ministry, paragraph 2)
Section 57(2): The burden of proof and the standard of proof
The Ministry argues that the so-called reverse onus in the B.C. Act
"recognizes that it will be very rare for one person to obtain access to
another person's personal information without the consent of the person to whom
the information relates." (Argument for the Ministry, paragraph 16) In the
present inquiry, it submits that the applicant has not shown clear and
compelling reasons why the presumption of privacy in section 22(3) is overcome.
(Argument for the Ministry, paragraphs 17-19) For specific reasons advanced
above, I agree with the Ministry on this point.
Under section 15(1)(d) of the Act, I find that the Ministry was authorized to
refuse access to the record in dispute, since disclosure would reveal a
confidential source of law enforcement information. Under section 22, I find
that disclosure of the information in dispute would be an unreasonable invasion
of the privacy of the third party. Thus the Ministry is required to refuse
access.
7.
Order
Under section 58(2)(b) of the Act, I confirm the decision of the Ministry of
Environment, Lands and Parks to refuse access to the record in dispute pursuant
to section 15(1)(d). Under section 58(2)(c) of the Act, I require the Ministry
to refuse access to the records in dispute to the applicant pursuant to
section 22(1).
November 27, 1995
David H. Flaherty
Commissioner