Order F2008-025: Summary
DATE: May 21, 2009
PUBLIC BODY: Attendance Board
FOIP COMPLAINT: In the course of a hearing into the non-attendance at school by the complainant's son, the Attendance Board accepted into evidence a psychologist's report that contained the complainant's personal information. The Board also ordered a copy of the report to be provided to the son's school. The complainant made a complaint to the Information and Privacy Commissioner that the Board had improperly collected and disclosed his personal information.
ISSUES: The Board submitted that its collection of the complainant's personal information was necessary for and related directly to an operating program and was also for law enforcement purposes. The Board submitted that it disclosed the report to the school to enable it to act on psychologist's recommendations and that this was a purpose consistent with the purpose for collection. The Board also claimed that the disclosure was not an unreasonable invasion of the complainant's privacy, and the disclosure was to comply with an order by the Board.
DECISION AND REASONS:
- The Adjudicator considered the powers of the Board under the School Act, including section 127(e), which requires the Board to receive relevant evidence presented to it. The Adjudicator determined that the Board collected the complainant's personal information as evidence relevant to the matter before it, and therefore the collection related directly to and was necessary for the Board's operating program or activity (section 33(c)).
- As well, the Adjudicator found that the information was collected for law enforcement proceedings (section 33(b)). The definition of "law enforcement" in section 1(h) was met because section 128(1)(e) of the School Act allows the Board to impose a monetary penalty on a parent for each day that a child does not attend school. Also, contravention of a Board order could lead to a penalty under contempt proceedings.
- The Adjudicator also considered whether the collection was expressly authorized by an enactment (section 33(a)). The Adjudicator found that a statutory provision that requires the admission of relevant evidence is an express authorization for the collection of personal information that is contained in the evidence.
- The Adjudicator disagreed that the disclosure of the psychologist's report to the school was for a purpose consistent with the purpose for collection (section 40(1)(c)). The Adjudicator noted that the Board's order-making powers under the School Act involve directions to parents and students, not schools. Even if the Board had the power to give direction to a school, it had not done so in this case. Therefore, there was no reasonable and direct connection (section 41(a)) between the purpose for collecting the complainant' information in the hearing process and the purpose for disclosing the information to the school. The Adjudicator also observed that if the school needed information about the parents, it could have collected the information from them directly.
- The Adjudicator found that principle underlying section 17(4)(g)(i) applied even though the complainant's name did not appear in the report. Because the complainant's name and his association with the son were recorded in other hearing documents, a number of people would be able to identify the complainant as the person being discussed in the report. In the Adjudicator's view, this disclosure of personal information associated with the name of the person whose information it is would give rise to a presumption of an unreasonable invasion of privacy. (If section 17(4)(g)(i) did not apply, the ability to identify the complainant would be a relevant circumstance and this would weigh against disclosure.)
- The Adjudicator rejected the Board's interpretation of section 40(1)(g) as permitting disclosure by the body ordered production of the information. The Adjudicator stated that section 40(1)(g) can only be interpreted as allowing disclosure to a body that has ordered production.
The complainant's personal information was collected by the Attendance Board in accordance with the FOIP Act but was disclosed in contravention of Part 2 of the Act.
SECTOR: Government - Other