Order F2009-014: Summary
DATE: September 11, 2009
PUBLIC BODY: Edmonton School District No. 7
FOIP COMPLAINT: The complainant had been unhappy about his dealings with the Edmonton Public School Board (the Board) concerning the complainant's son, who has been diagnosed with a neurological disorder that causes developmental disabilities. Of specific concern were assessment reports that may have been a factor in determining the son's funding from the Family Support for Children with Disabilities (FSCD) program. The complainant sought assistance from his MLA regarding this issue. The MLA wrote a letter to the Superintendent of Schools for the Board, relaying the complainant's concerns and asking the Board to reconsider its decision to eliminate the funding. Along with the letter, the MLA also sent a consent form signed by the complainant and his spouse permitting the Board to exchange information with the MLA. The Superintendent responded to the MLA with a detailed letter, advising the MLA that the funding decision was within the authority of FSCD, not the Board. This letter was cc'd to the complainant, the school principal, and the manager of FSCD. The complainant made a complaint to the Information and Privacy Commissioner that the Board had improperly disclosed his son's personal information to FSCD.
ISSUES: The Commissioner considered whether the disclosure was permitted as a disclosure that would not be an unreasonable invasion of a third party's personal information under section 17 (section 40(1)(b)). The Board submitted that by requesting help from the MLA, the complainant was seeking public scrutiny of the Board; since the funding issue concerned both the Board and the FSCD, this public scrutiny factor permitted the Board to disclose the personal information to the FSCD (section 17(5)(a)). The Board also argued that by involving the MLA, the complainant had a decreased expectation of privacy.
DECISION AND REASONS:
- The Commissioner found that since the personal information in the letter related to the son's disability, therapies, treatment, and educational funding, the disclosure is presumed to be an unreasonable invasion of the son's personal privacy under one or more the provisions of section 17(4)(a), (c), (d) and (g).
- The Commissioner found that the disclosure by the Board to FSCD did not contribute to public scrutiny of the Board, and was not necessary for that purpose (section 17(5)(a)). He stated that it is not always the case that when a complainant engages the assistance of a publicly elected official, the complainant is seeking public scrutiny of the issue. In some instances, a complainant may seek assistance for sensitive and personal matters. Citing Order F2008-015, the Commissioner found that the complainant was pursuing a private matter; this situation therefore lacked the required public aspect of public scrutiny. Similarly, FSCD was not under any public scrutiny.
- The Commissioner did not agree that because the complainant sought the involvement of his MLA, he had a decreased expectation of privacy. He found instead that since the consent form limited the exchange of personal information to communications between the Board and the MLA, the complainant had an increased expectation of privacy. The Commissioner also noted that it was likely that FSCD already had knowledge of much of the personal information contained in the letter. However, this was not a factor in considering whether the disclosure to FSCD was an unreasonable invasion of privacy.
- The Commissioner noted that when applying section 17 through section 40(1)(b), it may be assumed that "the complainant's rights" may be "read in" in the place of "the applicant's rights." The Commissioner considered whether the personal information disclosed to FSCD was relevant to a fair determination of the rights of the complainant's son, but found that the Board's letter only justified a decision that was already made, it was not a deliberation about rights.
- Lastly, the Commissioner observed that his decision may hamper a public body's ability to respond to requests of inquiries from MLAs on behalf of constituents; however, he found that the problem may be overcome by obtaining the constituent's consent to disclose personal information to other entities.
The Commissioner found that the Edmonton Public School Board disclosed the personal information of the complainant's son in contravention of the FOIP Act.
SECTOR: School Jurisdiction