Order 2000-032: Summary
Note: This order was quashed on March 28, 2002 (University of Alberta v. Pylypiuk, ABQB 22 - see judgment [pdf file, 57 KB]). The matter was remitted to the Information and Privacy Commissioner for reconsideration. The Commissioner reconsidered the matter in Order F2002-030R.
DATE: May 1, 2001
PUBLIC BODY: University of Alberta
FOIP REQUEST: The applicant, a professor at the University of Alberta (U of A), requested access to material related to her removal from a graduate committee. The U of A withheld information contained in 22 pages of records under the Act's exceptions for third party personal privacy and for privileged information. The records withheld consisted of letters and e-mails authored by three former graduate students, and notes and chronological summaries prepared by a former Associate Dean. Another letter written by one of the students was withheld on the basis that it was not responsive to the applicant's request. The applicant asked the Information and Privacy Commissioner to review the decision to withhold all of these records.
ISSUE: The U of A submitted that disclosure would be an unreasonable invasion of the personal privacy of third parties who had an expectation of confidentiality, and that public interest privilege applied to the records. The applicant submitted that disclosure was necessary for scrutiny of allegations that could affect the applicant's reputation and employment. The applicant also submitted that the two additional pages were responsive to her request as they directly related to the decision to remove her from the committee.
DECISION AND REASONS:
- The Commissioner decided that the letters from the former graduate student were responsive to the access request. As stated in Order 97-020, a record is responsive if it is reasonably related to the access request. In finding that the letters in question were reasonably related to the access request, the Commissioner emphasized that he was not making a decision as to the relevance of the records to the U of A's decision in the matter of the applicant's dispute with the graduate student. His decision was based on the nature and content of the letters and their relevance to the applicant's access request.
- The Commissioner decided that the U of A had not applied the exception for personal privacy correctly to all of the information withheld under section 16. He first determined that disclosure of the third parties' personal information in the records was presumed to be an unreasonable invasion of their personal privacy, since the information related to their educational history (section 16(4)(d)) and consisted of their names along with other personal information about them (section 16(4)(g)(i)).
- The Commissioner then considered other relevant circumstances. He cited Order 97-002 on the conditions necessary for an applicant to succeed in the argument that disclosure is desirable for the purpose of subjecting the activities of a public body to public scrutiny (section 16(5)(a)), and then distinguished the facts of this case from the case in that Order. The Commissioner said that, although the applicant was the only person that had decided that public scrutiny was necessary, the applicant's concerns were about more than one person. He found that this circumstance favoured disclosure, noting that the U of A had not disclosed a substantial amount of information addressing the applicant's concerns.
- The Commissioner held, with reference to the test set out in Order 99-028, that disclosure was not necessary to a fair determination of the applicant's rights (section 16(5)(c)). The fact that the records were submitted in confidence (section 16(5)(f)) was a circumstance that weighed against disclosure of the records.
- The Commissioner then considered the U of A's argument that the common law doctrine of confidential communications was relevant to this matter and found there was insufficient evidence to support this claim. The Commissioner also rejected the students' argument that the power imbalance between professor and student favoured non-disclosure. He agreed that a power imbalance might be a relevant circumstance prior to or immediately after graduation, but that was not the case here.
- The Commissioner also reviewed the nature and content of the records and found that the fact that the students' allegations could affect the professor's reputation and employment weighed in favour of disclosure. He emphasized that, in determining whether the nature and content of records weigh in favour of disclosure, every case must be reviewed individually.
- The Commissioner concluded that the circumstances weighing in favour of disclosure outweighed the circumstances weighing against disclosure with respect to most of the information in the records.
- The Commissioner held that the U of A had not applied the exception for privileged information (section 26(1)(a)) correctly. Citing Order 96-020, the Commissioner stated that, for public interest privilege to apply, the four criteria of the Wigmore test must be satisfied. Although the information in the records originated in confidence, the other three criteria were not satisfied. The Commissioner noted that it was not in the interest of satisfactory maintenance of the relationship between the parties for parties to be able to make serious allegations and then remain anonymous for an indefinite period of time.
The U of A was ordered to disclose most of the records, with limited severing of third party personal information.
SECTOR: Post Secondary Institution