Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 83-1996
February 16, 1996
INQUIRY RE: A Decision by the Ministry of Health to withhold from a parent
a series of interviews concerning a child's daycare
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry
at the Office of the Information and Privacy Commissioner on December 13, 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 of a
decision by the Ministry of Health (the public body) to refuse access to the
notes of interviews concerning the quality of care provided to the applicant's
child at a Vancouver daycare centre.
The records in dispute are 62 handwritten pages of notes of ten separate
interviews between five staff (in fact, the entire staff) of the daycare centre
and two investigators regarding the care of the applicant's child. The
handwritten notes are on the "Facility Report Forms" of the Community Care
Facilities Licensing Office, Vancouver Health Department, and the
"Supplementary Report Forms" of the Environmental Health Division, Vancouver
Health Department. The Ministry provided a four-page typed summary of this
information to the applicant during the mediation stage of this inquiry.
2. Issue
The issue to be resolved in this case is whether the record in dispute should
be withheld under sections 15 and 22 of the Act. These sections read in
appropriate part as follows:
Disclosure harmful to law enforcement
15(1) The head of a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to
(d) reveal the identity of a confidential source of law enforcement
information,
....
Disclosure harmful to personal privacy
22(1) The head of a public body must refuse to disclose personal information to
an applicant if the disclosure would be an unreasonable invasion of a third
party's personal privacy.
...
(2) In determining under subsection (1) or (3) whether a disclosure of personal
information constitutes an unreasonable invasion of a third party's personal
privacy, the head of a public body must consider all the relevant
circumstances, including whether
3. Burden of proof
At an inquiry concerning a refusal to grant an applicant access to all or part
of a record under section 15 of the Act, the head of the public body must prove
that the applicant has no right of access (section 57(1)). In this case, the
Ministry has to prove that the applicant has no right of access to the
information she is seeking.
However, under section 57(2), if the record or part to which the applicant is
refused access under section 22 of the Act 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, then, the applicant has to prove that
disclosure of the records in dispute will not unreasonably invade the privacy
of those interviewed.
4. The applicant's case
The applicant is concerned about the quality of care offered to her child and
other children by the daycare, especially in the form of verbal abuse and
negative reinforcement. She prompted an investigation of her complaints
"against certain workers" at the daycare by Community Care Facilities Licensing
of the Ministry of Health and the Vancouver Health Department. One of the two
investigators was, it is alleged, head of another daycare centre and also head
of a union of daycare workers that represented some of this daycare's workers.
The applicant alleges that this investigator was thus in a conflict of
interest. The applicant believes that full disclosure of the records in
dispute are required in the public interest in order to protect her child and
other children.
The applicant generally argues that the Ministry is preventing disclosure of
the records in dispute under section 22 in order to evade responsibility for
"any situations that occurred." The applicant believes that in this case
concern for the welfare of children takes precedence over the privacy rights of
the daycare staff.
5. The Ministry of Health's case
The Ministry states that the applicant's complaints concerned inadequate care
of the child, feedback about the child, and the treatment the parent received.
(Submission of the Ministry, p. 5) I discuss below the detailed submissions of
the Ministry on specific sections of the Act.
6. Discussion
The applicant is concerned about the rights of her child and of children in
general in connection with the records in dispute. Having read the records, I
can assure her that the rights of children are being appropriately represented
by the Ministry in this case. I also conclude, contrary to the claims of the
applicant, that the information provided during the interviews is in fact
personal information under the Act primarily concerning herself, her child, and
the daycare workers.
Section 15: The definition of law enforcement
The Ministry has established that the Community Care Facility Act
authorizes the investigation of complaints against a licensed daycare facility
and the levying of penalties and sanctions. Thus, it argues, "investigations
pursuant to the Community Care Facility Act are law enforcement matters."
(Submission of the Ministry, pp. 6-8) I am satisfied that such an
investigation falls under the definition (part b) of law enforcement in
Schedule 1 of the Act. The applicant's arguments to the contrary are not
persuasive on this point. (Reply Submission of the Applicant, p. 2) The
investigation launched by the applicant could have led to the closure of this
daycare facility under the Community Care Facility Act. This
investigation did not lead to sanctions of this sort. But given the
investigators' need for honest responses, and the promises of confidentiality
made to the daycare workers, disclosure of the full text may have a chilling
effect on future law enforcement investigations.
Section 15(1)(c): harm the effectiveness of investigative techniques and
procedures currently used, or likely to be used, in law enforcement
The applicant rejects the Ministry's effort to use this section to prevent
full disclosure. The Ministry, contrary to my findings in Order No. 50-1995,
September 13, 1995, pp. 6-7 and Order No. 71-1995, December 15, 1995, p. 7,
seeks to argue that confidential interviews are in fact an investigative
technique or procedure in this particular inquiry, "due to the nature of the
investigation."
When complaints are made under the Community Care Facility Act, it is only
through such confidential interviews that information is gathered. It is the
only 'technique' available to those investigating this or any other complaint
....
Complainants or those interviewed would not reveal their opinions or knowledge
knowing that they can be linked with the information. It is this information
that is the investigation and it is the collection of the information that is
the law enforcement technique or procedure. (Submission of the Ministry, p.
9)
While I appreciate the Ministry's effort to draw such a distinction in this
particular case, I remain of the view that a confidential interview is not a
"technique" that can or should be protected from disclosure under this
section. Nor would revealing reliance on confidential interviews harm their
"effectiveness" in future cases. But that does not mean, given other
sections of the Act, that the transcript of a confidential interview must be disclosed.
It is hardly a threat to law enforcement in any context to know that
investigators customarily rely on confidential interviews as a method of work,
especially if the substance of the interviews remains truly confidential, which
depends on meeting standards set out in exceptions set out in other parts of
the Act.
Section 15(1)(d): reveal the identity of a confidential source of law
enforcement information
The applicant rejects the Ministry's effort to use this section to prevent
full disclosure. The Ministry, for its part, is endeavouring not to reveal the
names of confidential sources of law enforcement information. As discussed
further below, I accept the evidence of the Ministry that the interviews were
indeed of a confidential nature, especially, as it states, because child abuse
is often an issue in investigations of daycare facilities. (Submission of the
Ministry, pp. 10-12, and Affidavit of Evon Soong, Exhibit A).
I find that it is reasonable for the Ministry to withhold the records in
dispute under this particular section. The number of those interviewed is so
small (five) that it would be impossible otherwise to protect the
confidentiality of those interviewed with respect to what specific workers
said. Severing in this case is impractical, if not impossible.
Section 22: Disclosure harmful to personal privacy of third
parties
The applicant claims that she should receive the records in dispute in their
unsevered form, because she knows "the subject of the material as well as the
persons connected with this incident ..." I mention this argument simply to
reject it. There is a difference between knowing the subject matter or the
names of all of those interviewed and having a right under the Act to obtain
access to full notes of what they actually said during the course of an
investigation. Even if the applicant had been shown the interview records at
some point in time, that does not establish a right of access under the Act,
given the existence of section 22.
The Ministry emphasizes that the privacy rights being protected under this
section are the opinions associated with specific daycare workers. (Reply
Submission of the Ministry, p. 3)
Section 22(2)(f): the personal information has been supplied in
confidence
This section creates a circumstance that the Ministry must consider in
deciding whether disclosure would be an unreasonable invasion of privacy. The
applicant argues that:
[T]here is no indication that the workers gave the information contained on the
transcripts in confidence, nor does the Ministry have any right to protect
those individuals in their investigations into any complaint or wrong doing on
the actions of the daycare workers. Any attempt to state that the information
was given in confidence would suggest a possible cover up by Child Care
Licensing and the Ministry of Health.
The Ministry states that "[t]he interviews were conducted in confidence.
Confidential interviews are an integral part of the investigation procedure."
(Submission of the Ministry, p. 5) More specifically:
Prior to the commencement of each of the five interviews, the investigators
told the staff members that the interviews were part of an investigation. They
further told the staff members that the records of the interviews would be
confidential unless a licensing hearing took place. Co-operation was received
from the staff due to the confidential nature of the investigation and the
assurance that the records would be confidential. (Submission of the Ministry,
p. 6; see also p. 11 and Affidavit of Evon Soong, Exhibit A)
The Community Care Facility Act does not compel any worker at a
licensed facility to cooperate with an investigation, which highlights the
importance of upholding promises of confidentiality in these circumstances. In
this particular case, the persons interviewed also subsequently refused to
allow the disclosure of the notes of their interviews. (Affidavit of Evon
Soong, Exhibit A, paragraphs 13-15)
Although the Ministry has established in this case that promises of
confidentiality were provided to the daycare workers, there was no evidence
before me of an existing written policy on confidentiality for such
investigative interviews. As I have done in previous Orders covering other
Ministries, I encourage the Ministry, or the appropriate agency, to develop
such a policy.
I find that the personal information in the records in dispute were supplied
in confidence and that it was appropriate for the Ministry to take this
circumstance into account in deciding not to disclose these notes.
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 creates a presumption against disclosure of personal information
to a third party, except in the circumstances specified. The applicant has
attempted to misapply the plain language of the section by asserting that she
needs this information to "open another investigation into the conduct of the
daycare workers by an independent investigator to investigate the facts ...."
My reading of this section is that disclosure in such cases can only be to a
body normally charged with the conduct of such an investigation, not a private
citizen who may wish to launch a further investigation herself.
The Ministry has appropriately applied this section to prevent disclosure of
information about a "possible" violation of law. (Submission of the Ministry,
p. 12)
In all of these circumstances, I find that the applicant has not met her
burden of proof under section 22 of the Act with respect to an unreasonable
invasion of the privacy of third parties.
Section 25: Information must be disclosed if in the public
interest
The applicant has attempted to rely on this section to force full disclosure
upon the Ministry of Health, since the case involves both the public's and the
applicant's interest in the administration of Child Care Services licensing.
Public confidence, she argues, requires public scrutiny.
The Ministry is of the view that this section has no relevance to this
inquiry: "Section 25 is more properly applied to matters affecting the general
public or a group of persons. It is for matters of a very broad-reaching
effect. There is no imminent harm in this inquiry that justifies the use of
section 25 of the Act." (Reply Submission of the Ministry, p. 3) The
Ministry's decision on section 25 is determinative on that point in the
circumstances of this inquiry.
The summary released to the applicant
The applicant was given a summary of the interview notes during the mediation
process. The Ministry states that it is impossible to sever these records
without revealing the identities of individuals. (Submission of the Ministry,
p. 11; and Affidavit of Evon Soong, paragraphs 18-20) It is the Ministry's
view that "[n]ot receiving the original interview sheets or the names of those
interviewed does not hinder in any way the rights of the Applicant or of her
child." (Reply Submission of the Ministry, p. 4)
The Community Care Facilities Licencing Office also provided the applicant
with the recommendations resulting from the investigation that were relevant to
her concerns. (Affidavit of Evon Soong, Exhibit A)
The Ministry states that it prepared the summary already released on short
notice, and that it would be prepared to prepare a further summary if I
required it to do so. (Submission of the Ministry, p. 12) I would like the
Ministry to make the effort to improve the current summary. There should be,
in particular, two added sections: one dealing with staff interviews with the
applicant, and a second about the policies of the daycare on various issues and
practices. The section of the summary on the applicant's child should mention
staff perceptions of him more specifically.
Conflict of interest?
The applicant raised a conflict of interest issue, because one of the
investigators in this case was allegedly not independent. The Ministry now
states that this "independent investigator" did know the persons she was to
interview and for that reason a second investigator joined the investigation.
(Reply Submission of the Ministry, p. 2) The Ministry further claims that the
applicant was aware of and consented to the specific investigator. (Reply of
the Ministry, December 12, 1995)
I agree with the Ministry that this issue has no direct bearing on the
application of the Act. If the applicant remains concerned about this matter,
there are other avenues of redress open to her outside the scope of this Act.
7.
Order
I find that the Ministry of Health was authorized to refuse access to the
records requested under sections 15 and 22 of the Act. Under section 58(2)(b),
I confirm the decision of the Ministry of Health to refuse access to the
records requested by the applicant, subject to the condition specified below.
Under section 58(4), I require the Ministry of Health to expand the summary of
information already disclosed to the applicant in accordance with the
directions given in this Order and to provide me with a copy of the improved
summary.
February 16, 1996
David H. Flaherty
Commissioner