Order F2009-016: Summary
DATE: October 9, 2009
PUBLIC BODY: University of Calgary
FOIP REQUEST: The applicant made a request to the University of Calgary for information relating to the applicant's allegations against a professor. The applicant requested the decision of the Committee struck to examine the allegations, records relating to the formation of the Committee and the execution of its duties, and communications with the dean, the professor and the University's general counsel. The University provided some records, but withheld others under the exception for third party personal privacy (section 17). The Applicant requested a review of the University's decision. The Adjudicator arranged for the professor to be notified as an affected party.
ISSUES: The University and the professor believed that disclosure of the professor's personal information was presumed to be an unreasonable invasion of personal privacy because it was contained in a law enforcement record (section 17(4)(b)) and because it was his employment history (17(4)(d)). The University and the professor also claimed that a number of relevant circumstances weighed against disclosure under section 17(5). The applicant argued that the desirability of public scrutiny and other relevant circumstances weighed in favour of disclosure.
DECISION AND REASONS:
- The Adjudicator considered whether information in the records about the policies and procedures relevant to the Committee's examination of the allegations were the professor's personal information, to the extent that they revealed the process surrounding the examination of allegations against him. The Adjudicator decided that the policies and procedures were not the professor's personal information, since they applied in general fashion and were not unique to this particular matter.
- The Adjudicator found that it would not be an unreasonable invasion of personal privacy to disclose personal information regarding members of the Committee and other representatives of the University carrying out work-related functions. He noted that the records did not reveal personal comments or points of view about the allegations against the professor, only the decision to examine the allegations, procedural steps and the Committee's overall conclusion. The Adjudicator made an exception for information about Committee members that was intertwined with personal information of the professor, since the names of Committee members could be disclosed in other contexts. However, the Adjudicator found that this exception did not apply to the name and position of the University's legal counsel, which was available only in a context where it was intertwined with information that could not be disclosed. The name and position of counsel should be disclosed.
- The Adjudicator disagreed with the University's position that section 17(4)(b) of the Act applied because the definition of "law enforcement" in section 1(h)(ii) includes "an administrative investigation, including the complaint giving rise to the investigation, that leads or could lead to a penalty or sanction." The Adjudicator said, citing Orders 2000-019 and F2003-005, that the penalty or sanction must be set out in a law, not in policy or terms of employment.
- The Adjudicator found that the results of an investigation may be part of a personnel file and therefore of an individual's employment history. He agreed that section 17(4)(d) applied to the records and that disclosure of personal information in the records was presumed to be an unreasonable invasion of personal privacy.
- Although the University had not relied on section 17(4)(g), the Adjudicator determined that this provision applied to the personal information, since the professor's name in the records appeared with, or would reveal, other personal information about him (i.e. that allegations were made against him, that a Committee was struck to examine them, and what the Committee concluded).
- The Adjudicator considered the relevant circumstances and found that the professor's refusal to consent to the disclosure of his personal information weighed against disclosure (see Orders 97-011 and F2008-017). So did the likelihood that disclosure of the information would unfairly damage the professor's reputation (section 17(5)(h)) the Adjudicator noted that disclosure of a statement exonerating the professor would not cause harm to his reputation.
- The Adjudicator found that the fact that information was originally provided by the applicant was a relevant circumstance under section 17(5)(i) and weighed in favour of disclosing the substance of the applicant's allegations, as framed in the records at issue.
- The Adjudicator also decided that the fact that information had previously been disclosed to the applicant without objection weighed in favour of disclosure. In making this decision the Adjudicator distinguished this case from others where the applicant had a general knowledge of the third party's personal information or had obtained the information from another source, or where the prior disclosure was in contravention of the Act.
- The Adjudicator considered other circumstances that the parties considered relevant to disclosure. He dismissed the argument of the University and the professor that section 17(5)(f) was a relevant circumstance because, although the proceedings were confidential, information was not supplied in confidence.
- The professor's claim that disclosure would harm the University's decision-making process was rejected by the Adjudicator as a circumstance that would be relevant under the FOIP Act. The Adjudicator also rejected the professor's claim that disclosure would cause him psychological harm, finding that the records themselves did not go into great detail about what the professor was alleged to have done (section 17(5)(e)).
- The Adjudicator found that disclosure of the records was not relevant to a fair determination of the applicant's rights under section 17(5)(c) because no further proceeding existed or was contemplated; the facts of this case did not meet the criteria set out in Orders 99-028 and F2008-012. In addition, the Adjudicator rejected the argument that disclosure was desirable for the purpose of subjecting the activities of the University to public scrutiny. The Adjudicator believed that the process could be scrutinized by examining the policy under which the investigation was conducted.
The University was ordered to give the applicant access to some additional records.
SECTOR: Post-Secondary Institution