Section 22 - Disclosure harmful to personal privacy

Overview

Section 22 is a mandatory exception that limits the disclosure of an individual's personal information to anyone other than the individual themselves.

Section Reference

Section 22 of the Freedom of Information and Protection of Privacy Act

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

(a) the disclosure is desirable for the purpose of subjecting the activities of the government of British Columbia or a public body to public scrutiny,

(b) the disclosure is likely to promote public health and safety or to promote the protection of the environment,

(c) the personal information is relevant to a fair determination of the applicant's rights,

(d) the disclosure will assist in researching or validating the claims, disputes or grievances of aboriginal people, 

(e) the third party will be exposed unfairly to financial or other harm,

(f) the personal information has been supplied in confidence,

(g) the personal information is likely to be inaccurate or unreliable, and

(h) the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant.

(3) A disclosure of personal information is presumed to be an unreasonable invasion of a third party's personal privacy if

(a) the personal information relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation,

(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,

(c) the personal information relates to eligibility for income assistance or social service benefits or to the determination of benefit levels,

(d) the personal information relates to employment, occupational or educational history,

(e) the personal information was obtained on a tax return or gathered for the purpose of collecting a tax,

(f) the personal information describes the third party's finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness,

(g) the personal information consists of personal recommendations or evaluations, character references or personnel evaluations about the third party,

(h) the disclosure could reasonably be expected to reveal that the third party supplied, in confidence, a personal recommendation or evaluation, character reference or personnel evaluation,

(i) the personal information indicates the third party's racial or ethnic origin, sexual orientation or religious or political beliefs or associations, or

(j) the personal information consists of the third party's name, address or telephone number and is to be used for mailing lists or solicitations by telephone or other means.

(4) A disclosure of personal information is not an unreasonable invasion of a third party's personal privacy if

(a) the third party has, in writing, consented to or requested the disclosure,

(b) there are compelling circumstances affecting anyone's health or safety and notice of disclosure is mailed to the last known address of the third party,

(c) an enactment of British Columbia or Canada authorizes the disclosure,

(d) the disclosure is for a research or statistical purpose and is in accordance with section 35,

(e) the information is about the third party's position, functions or remuneration as an officer, employee or member of a public body or as a member of a minister's staff,

(f) the disclosure reveals financial and other details of a contract to supply goods or services to a public body,

(g) public access to the information is provided under the Financial Information Act,

(h) the information is about expenses incurred by the third party while traveling at the expense of a public body,

(i) the disclosure reveals details of a license, permit or other similar discretionary benefit granted to the third party by a public body, not including personal information supplied in support of the application for the benefit, or

(j) the disclosure reveals details of a discretionary benefit of a financial nature granted to the third party by a public body, not including personal information that is supplied in support of the application for the benefit or is referred to in subsection (3)(c).

(5) On refusing, under this section, to disclose personal information supplied in confidence about an applicant, the head of the public body must give the applicant a summary of the information unless the summary cannot be prepared without disclosing the identity of a third party who supplied the personal information.

(6) The head of the public body may allow the third party to prepare the summary of personal information under subsection (5). 

Summary

Section 22 is a mandatory exception that protects personal privacy of individuals whose personal information is held by a public body.  Section 22 requires the head to refuse disclosure of personal information where that disclosure constitutes an unreasonable invasion of a third party's personal privacy. This protection applies only to natural persons. Section 22 is considered when an applicant makes a request for someone else's personal information. This section is applied in conjunction with the third party notice provisions in section 23 and section 24.

Policy

  1. In making a determination with regard to applying section 22, the public body shall apply subsections 22(1) to (4) in reverse order. Under subsection 22(1), the head of a public body is required to withhold personal information which, if disclosed, would be an unreasonable invasion of a third party’s personal privacy. "Personal information" is defined in Schedule 1 of the Act.

  2. Subsection 22(2) requires the head to consider all relevant circumstances including, but not limited to, those specifically set out in this subsection in determining whether or not disclosure of the requested information would be an unreasonable invasion of a third party's personal privacy.

  3. Subsection 22(3) sets out types of personal information the disclosure of which is presumed to be an unreasonable invasion of a third party's personal privacy. In determining whether subsection 22(3) applies to a particular record, the public body applies the relevant factors determined in subsection 22(2).

  4. Subsection 22(4) sets out the types of information and circumstances where disclosure of personal information is not an unreasonable invasion of a third party’s personal privacy. Personal information falling within these circumstances should be released unless another exception applies. The factors listed in subsection 22(2) do not apply to subsection 22(4).

  5. Subsection 22(5) requires the head to give an applicant a summary of the information requested if an applicant has been denied access to his or her own personal information because the information was supplied in confidence by a third party. This requirement arises only if the summary can be prepared without disclosing the identity of the third party who supplied the personal information. Subsection 22(6) permits the head to allow the third party in question to prepare the summary of personal information under subsection 22(5).

  6. If a record contains personal information of a third party and disclosure of the existence of the record would be an unreasonable invasion of the third party's personal privacy, subsection 8(2) permits the head to refuse to confirm or deny its existence. A refusal to confirm or deny the existence of a record is a significant limit to the right of access.

Procedure

  1. Preliminary Examination

  2. Third Party Notice

  3. Line by Line Review

    Conduct the formal review in the following order:

    1. Consider subsection 22(4)

      If the type of personal information requested is listed in subsection 22(4) or any of the circumstances listed in subsection 22(4) exist, then disclosure is not an unreasonable invasion of privacy and it should be recommended to the head that the record be released if no other exception applies.

    2. Consider subsection 22(3)

      If the type of personal information requested is listed in subsection 22(3), the disclosure of the personal information is presumed to be an unreasonable invasion of personal privacy. Subsection 22(3) identifies types of personal information that are very sensitive in nature, the release of which is presumed to be an unreasonable invasion of privacy. There may be circumstances where personal information that meets the conditions of this subsection is deemed not an unreasonable invasion of privacy and therefore may be released, subject to other exceptions.

    3. Consider subsection 22(2)

      Whether or not the information is of a type listed in subsection 22(3), subsection 22(2) requires the public body to consider all relevant circumstances surrounding the request in deciding if release would result in an unreasonable invasion of personal privacy. This includes, but is not limited to, those circumstances listed in subsection 22(2). For example, even in a case where information falls under subsection 22(3), exceptional circumstances may exist that rebut the presumption of unreasonable invasion of privacy. However, the considerations listed in subsection 22(2) will be most helpful in making this determination in those cases where the personal information requested does not fall in either subsections 22(4) or 22(3).

  4. Consideration of third party consent or representations

  5. Severance

  6. Refuse to confirm or deny the existence of the record

    There are situations in which the disclosure of the mere existence of a record could unreasonably invade a third party's personal privacy. For example, disclosure that a public body has a file on a third party's psychiatric treatment would in itself reveal sensitive personal information about the third party.

    In such circumstances, subsection 8(2) permits the head to refuse to confirm or deny the existence of the record. Where the head refuses to confirm or deny the existence of a record, the public body notifies the applicant of the refusal under subsection 8(1) of the Act.

    A refusal to confirm or deny the existence of a record is a significant limit to the right of access. If an applicant asks the Commissioner to review a refusal to confirm or deny the existence of a record, the public body will be required to provide detailed and convincing reasons why subsection 8(2) was claimed.

Interpretation

Interpretation Note 1 (Section 22(1)):

"Must refuse to disclose"

This phrase means that subsection 22(1) is a mandatory exception to the general public right of access if the public body determines that disclosure would be an unreasonable invasion of personal privacy. Where requested information falls under this exception, the head has no discretion and must not release the information unless required to do so in the public interest, under the public interest override in section 25.

"Personal information"

Personal information means recorded information about an identifiable individual.

Three requirements must be met in order to fall within the definition of "personal information":

  • The information is recorded. Oral conversations, even if personal in nature, are not considered personal information for the purposes of the Act, unless the conversation is recorded in some manner.

  • The information is about an individual. Information about corporations and other legal persons does not fall within the definition of personal information. There may be instances, however, where information about a sole proprietor's business is so intertwined with his or her personal information that the distinction between personal and business information cannot be made easily. Detailed examination of these cases will be required in order to determine whether or not the requested information falls within the definition of personal information.

  • The information is about an identifiable individual. In most cases, this means that the name of the individual is contained in the record but, in other cases, it will be possible to identify an individual through some other information in the record. In any case where the identity of the individual can be ascertained or deduced by the information in the record, that information is personal information for the purposes of the Act.

    The circumstances of each case must be examined to determine whether the identity of the individual can be ascertained from the information requested.

The following list identifies types of personal information.  It is illustrative, but not exhaustive.

(a) the individual's name, address or telephone number,

(b) the individual's race, national or ethnic origin, colour, or religious or political beliefs or associations,

(c) the individual's age, sex, sexual orientation, marital status or family status,

(d) an identifying number, symbol or other particular assigned to the individual,

(e) the individual's fingerprints, blood type or inheritable characteristics,

(f) information about the individual's health care history, including a physical or mental disability,

(g) information about the individual's educational, financial, criminal or employment history,

(h) anyone else's opinions about the individual, and

(i) the individual's personal views or opinions, except if they are about someone else.

Most of the types of personal information listed above are self-explanatory. For example, it will generally be clear if a record contains an individual's name, address or telephone number. Similarly, information about an individual's past education or employment will be easily identified in most cases.

Some types of personal information are more difficult to identify. In particular, personal information in paragraphs (h) and (i), views or opinions, may require more detailed review.

Examples

  • Jane Smith writes to a Ministry expressing her opinion that her neighbor, Jack Jones, is not adequately caring for his children. Under the Act, Ms. Smith's opinion of Mr. Jones is Mr. Jones' personal information. Mr. Jones may view the opinion given by Ms. Smith insofar as it does not reveal Ms. Smith's identity, if revealing her identity would be an unreasonable invasion of her personal privacy.

  • Jim Jones witnesses an accident and provides a statement to the police. The statement is the personal information of Jim Jones where he is talking about his own actions at the scene of the accident. However, where Jim talks about the driver's behaviour or says the driver of the red car did not seem to be paying attention, it is the personal information of the driver. Assuming disclosing the fact Jim Jones supplied an opinion is an unreasonable invasion of Jim Jones privacy in this case, the driver is entitled to view Jim Jones's opinion of him, as long as it does not identify Jim Jones. The driver is not entitled to receive any of Jim Jones's other personal information. Depending on the circumstances, therefore, witness statements may contain the personal information of one or more people and will have to be reviewed and severed accordingly.

  • Harry Black writes to the Attorney General voicing his support for limiting the types of claims that can be made under the Insurance Corporation of British Columbia (ICBC) insurance scheme. Under the Act, that opinion is Mr. Black's personal information.

    Later, Mr. Black writes to the Minister to criticize the manner in which Kelly White, an insurance adjuster, is doing her job. Under the Act, Mr. Black's opinion about Ms. White's job conduct is Ms. White's personal information.

It is important to distinguish between one person's personal information and another's in these situations, since this determination will affect the parties' rights of access. 

In a given record, the public body must distinguish between personal information and other information that, while related, is not personal information. Information may be about a person but it is not personal information unless it can be related to a specific individual. Only information that is about an identifiable individual is personal information.

Example

  • A record that reports on a house fire includes the name of the owner, the location of the fire, the value of the house lost, value of personal possessions lost, details of the owner's fire insurance coverage, and other information about the fire investigation. Assuming no other exceptions apply, under section 22 the name of the owner, the value of possessions lost, and details of insurance coverage are personal information and not disclosed because disclosure is presumed to be an unreasonable invasion of privacy (paragraph 22(3)(f) - financial information). The location of the fire, the value of the property lost (as opposed to personal possessions) and details of the investigation that are not comments about the owner, would relate to the property and are not personal information.

Unreasonable invasion of a third party's personal privacy

Disclosure of personal information must meet the harm test of being an unreasonable invasion of a third party's personal privacy, for a public body to apply this exception. The use of the term "personal privacy" presupposes that the information in question is personal in nature. Consequently, this exception does not apply to information about corporations or other business entities, with the possible exception of sole proprietorships.

Interpretation Note 2 (Section 22(2)):

Must consider all the relevant circumstances

This subsection requires the head of a public body to consider not only the circumstances set out in subsection 22(2), but also any other circumstances that are relevant to the request. For example, if the requested record is 100 or more years old, a strong argument could be made that disclosure of the personal information contained in the record would not be an unreasonable invasion of a third party's personal privacy. Support for this conclusion is found in section 36 of the Act which permits disclosure by the British Columbia Archives if information is in a record that is 100 years or older.

Paragraphs (a) to (d) support the release of personal information, where it is not an unreasonable invasion of a third party’s personal privacy. Paragraphs (e) to (h) support withholding personal information, where it is determined to be an unreasonable invasion of a third party’s personal privacy.

In applying this subsection, the public body considers the sensitivity of the personal information that has been requested. For example, disclosure of a person's name and address that appear on a letter expressing an objection to a particular government proposal may or may not be sensitive personal information. This must be determined on a case-by-case basis. Where the personal information is sensitive its sensitivity may diminish over time. However, the sensitivity of an individual's name and address on a record listing persons who contracted venereal disease may remain forever.

Interpretation Note 3 (Section 22(2)(a)):

This paragraph recognizes that, in some cases, the desirability of public scrutiny of the internal workings of government will prevail over the protection of personal privacy.

"Public scrutiny" is not necessarily limited to instances where wrongdoing is alleged, or where it is alleged that the public body's normal practices or procedures are not being followed. The public body considers the broader interest of public accountability that may be demonstrated by disclosure of the requested information.

Example

  • Disclosure of past education and employment in the curriculum vitae of a successful job applicant will demonstrate that a qualified individual was appointed to a position in government.

Interpretation Note 4 (Section 22(2)(b)):

Disclosure of personal information to promote public health and safety or protection of the environment may override the protection of personal privacy.

"Public health"

"Safety"

"Public safety"

Example

  • It may promote public health and safety to disclose the identity of a prostitute infected with HIV to the appropriate authorities.

"Protection of the environment" refers to guarding or defending natural surroundings; i.e., plants and animals.

Example

  • It may be necessary to disclose some personal information regarding nearby residents when disclosing the location of an industrial plant that is discharging toxic wastes into a waterway.

Interpretation Note 5 (Section 22(2)(c)):

There may be occasions where the applicant requires access to personal information about someone else in order to assist in determining her/his own rights. Although the applicant's motives for requesting information are not normally relevant to the processing of a request, in this situation it will likely be necessary to ask the applicant why she or he is making the request. In circumstances where an applicant is asserting the need for the records in order to receive a fair determination of the applicant’s rights, it is appropriate to ask the applicant to provide information regarding the rights being sought. The privacy interests of the applicant and the interests of the third party will then have to be weighed against one another. In some cases, the desire to afford the applicant a fair determination of his or her rights will outweigh the third party's privacy rights and the public body will release the relevant personal information of the third party.

For personal information to be "relevant" to the fair determination of the applicant's rights requires that the personal information requested have a direct bearing on the rights of the applicant.

The phrase "fair determination" suggests that, without the personal information requested, the applicant may be unable to resolve outstanding issues in a just and equitable manner. A significant factor is the availability of other avenues for disclosure of the requested personal information.

Example

  • It may be necessary to disclose the source of an accusation against the applicant in a disciplinary matter in order that the applicant may challenge the credibility of the source of information.

"Applicant's rights" refer to any claim, entitlement, privilege or immunity of the applicant.

Example

  • Disclosure of a third party's personal information may be required so that an individual can prove his or her inheritance rights.

Interpretation Note 6 (Section 22(2)(d)):

In some cases, disclosure for these purposes will outweigh the privacy rights of individuals whose personal information has been requested.

Example

  • Records containing Nisga'a family histories held by the British Columbia Archives may be disclosed in order to substantiate a land claim made by an aboriginal government.

"Validating the claims" means confirming a statement of rights or contentions.

"Disputes or grievances" include controversies, debates and differences of opinion regarding any issues. Common among the grievances relating to aboriginal peoples are those relating to land, but this section is not limited to land claim issues.

"Aboriginal people" means individuals whose racial origins are indigenous to Canada.

Interpretation Note 7 (Section 22(2)(e)):

"Financial or other harm" may be read together to mean injury of a monetary or a similar nature.

Example

  • Disclosure of a third party's desire to purchase a specific property may result in an inflated selling price.

Interpretation Note 8 (Section 22(2)(f)):

"Supplied in confidence"

Examples

  • Health information is supplied in confidence by an individual to the Public Service Employee Relations Commission.

  • An employee may request confidentiality when providing personal comments about the subject of an audit.

  • The names of individuals signing a petition are not normally supplied in confidence. Petitions are generally considered to be public information; individuals signing a petition are publicly lending their support to a position and expect that their names may be disclosed. There may be some cases, however, in which the circumstances surrounding the collection of the signatures on a petition indicate that the individuals have signed with the understanding that their names will not be disclosed.

Interpretation Note 9 (Section 22(2)(g)):

If the information is likely to be inaccurate or unreliable, it should not be disclosed.

Inaccurate or unreliable

"Inaccurate"

"Unreliable" means of unsound or inconsistent character or quality (OED). In most cases, it will be necessary to check the source of the personal information to determine whether or not it is reliable.

Where there is sufficient reason to question the accuracy or reliability of the records, it may be an unjustified invasion of personal privacy to release it.

Interpretation Note 10 (Section 22(2)(h)):

If disclosure of this record will unfairly damage the reputation of an individual, it should not be disclosed.

Examples

  • A record in a ministry that outlines an internal investigation and the determination that allegations of sexual assault against an employee are unfounded.

  • A record of a public body’s investigation of an employee where the results of the investigation are inconclusive.

Unfairly damage the reputation

"Unfairly"

"Damage the reputation" means to harm, injure or adversely affect what is said or believed about an individual's character.

Interpretation Note 11 (Section 22(3)):

Presumed to be an unreasonable invasion of a third party’s personal privacy

Subsection 22(3) sets out types of personal information for which disclosure is "presumed to be an unreasonable invasion of a third party's personal privacy". These categories of personal information are intimate and sensitive in nature, and give rise to a strong expectation that privacy will be protected such that disclosure is presumed to constitute an unreasonable invasion of a third party's personal privacy.

In exceptional cases, the presumption of unreasonable invasion of personal privacy raised by subsection 22(3) may be rebutted after consideration of the factors listed in paragraphs 22(2)(a) to (d) or any other relevant circumstances. The result is that disclosure may no longer be presumed to be an "unreasonable" invasion of personal privacy and the requested personal information may be disclosed.

Example

An individual asks a hospital for access to the medical records of his parent who is an Alzheimer's patient. The applicant is asking for the information in order to make medical decisions on his parent's behalf, but has not completed the process necessary to be declared a guardian for his parent under the Adult Guardianship Act. As a result, neither the applicant nor any other person has authority under section 3 of the Regulation or under another enactment to act on behalf of the parent.

The hospital considers all of the relevant circumstances, including those set out in subsection 22(2) and whether the applicant is acting in the parent's best interests. In determining whether the applicant is acting in the best interests of the parent, the hospital considers: whether the applicant is at least 19 years of age; whether the applicant has been in contact with the parent during the preceding 12 months; whether the applicant has any dispute with the parent; whether the parent is capable of exercising his or her rights under the Act; whether the disclosure is necessary for the purpose of monitoring the health care being given or making medical decisions on the parent’s behalf; and, whether the applicant has the responsibility for health care of the parent.

In this case, the relevant circumstances would likely outweigh the presumption set out in paragraph 22(3)(a) that it would be an unreasonable invasion of personal privacy to disclose the parent's medical records.

If the personal information falls within one of the categories in subsection 22(3), the head must refuse to disclose the information unless the presumption is rebutted or unless any of the circumstances listed in 22(4) exist.

The following types of personal information from subsection 22(3) are of such a sensitive nature that disclosure is presumed to constitute an unreasonable invasion of a third party's personal privacy.

Interpretation Note 12 (Section 22(3)(a)):

"Medical, psychiatric or psychological" covers any information relating to an individual's physical, mental or emotional health.

Examples

  • A patient's cancer treatment records.

  • Records containing information about an individual's counselling sessions for alcohol dependency.

  • Patient records held by the College of Physicians and Surgeons as part of an investigation of a doctor. Doctor-patient records are treated in strict confidence. A patient has a right of access to his or her own records that are held by the College, but it would usually be an unreasonable invasion of the patient's privacy to disclose them to a third party.

  • A case file related to a special needs student, containing the student's care requirements and evaluating his or her progress.

Interpretation Note 13 (Section 22(3)(b)):

"Compiled" means that the information was drawn from several sources or extracted, extrapolated, calculated or in some other way manipulated.

"Violation of law" means offences under the Criminal Code of Canada, other federal statutes and regulations, breaches of provincial statutes and regulations, and contravention of municipal bylaws.

Example

  • An applicant requests information about his stock broker, who is being investigated by the British Columbia Securities Commission for alleged insider trading.

"Except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation" recognizes that a public body that is in possession of evidence of a possible violation of law must have the power to disclose that evidence to a police force or other law enforcement agency and to the Crown counsel or other person responsible for prosecuting the offence.

Interpretation Note 14 (Section 22(3)(c)):

Income assistance or social service benefits

"Income assistance" means any monetary benefits provided by either the federal, provincial or municipal government and paid to an individual.

"Social service benefits" may be monetary or non-monetary benefits paid to an individual.

Example

  • Disclosure of financial information supplied to a ministry on an application for income assistance is presumed to be an invasion of personal privacy.

Interpretation Note 15 (Section 22(3)(d)):

Employment, occupational or educational history

"Employment history"

Example

  • An individual's employment performance appraisal reports.

"Occupational history" refers to any information on a person's profession, business or calling, temporary or regular employment, and includes details of how a person spends their time.

Examples

  • An individual's volunteer work.
  • A person's photography hobby

"Educational history"

Example

  • An individual's high school grade point average, individual assignment marks and/or course marks.

This presumption does not apply to some employment information about officers, employees or members of public bodies, or members of a minister's staff. See paragraph 22(4)(e).

Interpretation Note 16 (Section 22(3)(e)):

"Personal information was obtained on a tax return"

Example

Any information obtained from the federal government regarding the collection of income tax.

"Tax"

"Gathered for the purpose of collecting a tax"

Example

  • Information gathered in a municipal tax return in relation to eligibility for a Homeowner Grant.

Interpretation Note 17 (Section 22(3)(f)):

"Finances"

Example

  • A record revealing how much an individual property owner is in arrears on her or his taxes to a local government. (Although section 447 of the Municipal Act provides for disclosure of a statement of unpaid taxes charged against a specified real property, it may still be an unreasonable invasion of privacy to disclose information linking the amount of unpaid taxes to an individual property owner.)

"Financial history"

Example

  • A list of an individual's investments.

"Creditworthiness" relates primarily to an individual's credit rating, but includes any information by which the individual's financial standing can be ascertained or surmised.

Example

  • An individual's credit rating.

Interpretation Note 18 (Section 22(3)(g)):

"Personal recommendations or evaluations"

Example

  • A letter stating the trustworthiness of an applicant for a car loan.

"Character references"

Example

  • Details of a past job performance appraisal submitted by a job applicant during the interview process.

"Personnel evaluations"

Example

  • Performance evaluations of a job candidate provided by a present or former employer or colleague.

Interpretation Note 19 (Section 22(3)(h)):

"Supplied, in confidence"

Examples

  • An evaluation of an employee supplied in confidence. If the employee only has one co-worker, knowledge of the existence of the evaluation would reveal the identity of the person who supplied it.

  • An evaluation that contains comments that only one person could have supplied. The evaluation would normally have some form of acknowledgment that it was received in confidence

Interpretation Note 20 (Section 22(3)(i)):

"Racial origin"

Example

  • A letter on the file of a client of the ministry makes note of the fact that the client is eligible for additional benefits as an aboriginal person.

"Ethnic origin"

Example

  • A historical document regarding the settlement of a community lists the countries of origin of specific settlers.

Examples

of religious or political beliefs or associations:

  • A reference to an individual's religion contained in a letter.
  • An individual's political party membership and contributions.

Interpretation Note 21 (Section 22(3)(j)):

In order to determine whether or not this subsection applies, the public body can ask if the applicant intends to use the requested information for a mailing list or solicitation purposes.

Public bodies may determine the applicant's intended use of the information by looking at the substance of the request. For example, if the applicant is seeking names and addresses and no other information, it is fair to presume the information will be used for a mailing list. Where names and addresses are not requested specifically and are only part of a large number of records requested, it is unlikely the applicant intends to use the information for a mailing list.

Mailing lists or solicitations by telephone or other means

A "mailing list" is any collection of names and addresses or telephone numbers that are collected and used for the purpose of sending similar information in a systematic manner to those appearing on the list.

"Solicitations by telephone" are requests or petitions made to individuals in a systematic manner over the telephone.

Solicitations by "other means " include, but are not limited to, requests or petitions made to individuals in a systematic manner either door-to-door, by facsimile transmission, by electronic mail or through the internet.

Examples

  • Names and addresses from the Motor Vehicle Branch to be used for direct marketing of automobile products.

  • Voters lists, including names and addresses, to be used in a membership campaign for a political party.

  • A number of specific e-mail addresses provided by a public body for the purpose of e-mail solicitation.

Interpretation Note 22 (Section 22(4)):

If the requested personal information falls within one of the categories in subsection 22(4), its disclosure is not an unreasonable invasion of a third party's personal privacy. In contrast to subsection 22(3), subsection 22(4) does not create a presumption. Rather, subsection 22(4) states that the disclosure of included personal information is not an unreasonable invasion of personal privacy.

Subsection 22(4) is not balanced with subsection 22(3) or consideration of the factors listed in subsection 22(2). If the personal information requested falls within subsection 22(4), it cannot be withheld under section 22, even if it is the type of information listed in subsection 22(3). Another exception may apply to the information.

Example

The disclosure of a list of names and business addresses of school personnel administrators is deemed not to be an unreasonable invasion of personal privacy because this information is about the individuals' positions as employees of public bodies. The list cannot be withheld under section 22 even if it is to be used for the marketing of personnel management software; i.e., for a mailing list for solicitation.

However, if disclosure of information about an employee's work site could reasonably be expected to create a threat to the safety of the employee or another individual, section 19 (Harm to individual or public safety) may apply.

Interpretation Note 23 (Section 22(4)(a)):

The consent to release or the request must be "in writing" and identify the specific information to be disclosed. Implied consent is not sufficient to rely on in this subsection.

An individual's lawyer may provide a public body with consent to release personal information on behalf of that individual, if the lawyer can provide the individual's written authorization to act for the individual.

Example

  • An individual requests, in writing, that his name and address be disclosed to a charitable organization for its mailing list.

Interpretation Note 24 (Section 22(4)(b)):

Disclosure of personal information in compelling circumstances affecting anyone's health or safety is not an unreasonable invasion of personal privacy. Paragraph 22(4)(b) provides for such disclosure in response to a request made under the Act. Public bodies may also disclose personal information in similar compelling circumstances in the absence of a formal request, under paragraph 33(p).

There are compelling circumstances if there is no other way for the public body to disclose the personal information affecting health or safety or if there is an emergency, where the delay in obtaining the information would be injurious to someone's health or safety. The compelling circumstances may affect the health or safety of the person concerned or another person.

Example

  • The ex-spouse of a man convicted of spousal assault seeks information on the whereabouts of her former husband once he has been paroled. Disclosure of this information is not an unreasonable invasion of her ex-husband’s personal privacy if he has threatened to locate her to cause further injury. The public body should take care in this type of situation not to endanger the safety of the wife in giving notice to the husband.

"Health"

"Safety"

"Last known address" means the most recent location in the public body's files for the individual in question.

Interpretation Note 25 (Section 22(4)(c)):

Disclosure of personal information about an individual authorized by a federal or provincial statute or regulation is not an unreasonable invasion of personal privacy.

Examples

  • Personal information in the Personal Property Security Register.
  • Personal information found on the B.C. Assessment Authority assessment roll.

Interpretation Note 26 (Section 22(4)(d)):

Before a public body makes a disclosure under this paragraph, the researcher must first comply with a number of stringent conditions designed to protect the privacy of the subjects.

Interpretation Note 27 (Section 22(4)(e)):

Volunteers or individuals who perform services on a per diem basis are members of a public body for the purposes of paragraph 22(4)(e) with respect to any services or functions carried out for the public body or any activities in which they act as a representative of the public body.

Positions, functions or remuneration

Information about a third party's "position" includes that person's job description and classification.

Information about a third party's "functions" includes a description of duties to be performed in the course of employment.

Information about "remuneration" includes salary amount and benefits received as a result of employment. Severance pay is included in the meaning of "remuneration".

Example

  • The job classification and exact salary of a public body employee.

  • Details of a severance package provided to a former public body employee. This does not include the background personal information used to calculate the severance entitlement, such as age, number of dependents, assessment of the employee's chance of obtaining other employment, etc.

"Officer, employee or member of a public body" means anyone charged with carrying out services for a ministry, branch or office of the government of British Columbia, a local public body or an agency, board, commission, corporation, office or other body designated in Schedule 2 of the Act.

The definition of "employee" as set out in Schedule 1 reads: "employee", in relation to a public body, includes a person retained under a contract to perform services for the public body. However, employees or subcontractors of the contractor are not considered to be employees of the public body.

Interpretation Note 28 (Section 22(4)(f)):

Financial and other details

"Financial details" means information relating to money, including the amount to be paid under the contract.

"Other details" means any other information contained in the contract, including names of parties, the subject matter of the contract and any terms and conditions agreed upon.

"Contract to supply goods or services" refers to agreements concluded by a public body with another party to buy or sell products, merchandise, services or wares. This term also covers agreements entered into by public bodies in the nature of employment or performance of work-related duties.

In releasing this type of information, public bodies should ensure that they do not release any information which qualifies for protection under subsection 21(1).

Examples

  • An individual has offered to provide a service to the government that includes the provision of meals at a fixed rate per meal to group home residents. The information regarding the nature of the service would be releasable, however, the fixed rate for meals would be considered a unit price and would be withheld under subsection 21(1).

  • The names of the officers in a company contracted by government to provide ongoing technical support for a computer system, as well as the contract price would be reasonable.

Interpretation Note 29 (Section 22(4)(g)):

The Financial Information Act (the FIA) permits the Minister of Finance to issue directives providing for the form and manner of providing public access to financial information held by the government and any corporation. If the Minister of Finance, under the FIA, directs that personal information be made public, its disclosure is not an unreasonable invasion of personal privacy under the Freedom of Information and Protection of Privacy Act.

Interpretation Note 30 (Section 22(4)(h)):

Expenses incurred by the third party

The significant categories of "expenses" are: transportation, meals and accommodation. Other expenses such as conference fees would also fall within this subsection. The third party may or may not be an employee of government.

Examples

  • A minister's travel expense claim for a trip to Asia made to promote trade with British Columbia.
  • A school board trustee's travel expenses for attending a conference out of town.

Interpretation Note 31 (Section 22(4)(i)):

The "details" of a licence, permit or other similar discretionary benefit are:

  • An identifying number or symbol assigned to the discretionary benefit;
  • Who or what the discretionary benefit attaches to (e.g., a person or a person and a property);
  • The scope of the discretionary benefit (e.g., what the benefit allows the holder to do);
  • The cost of the discretionary benefit (e.g., application fees); and,
  • Any limitations or restrictions on the discretionary benefit (e.g., an expiry date).

Information that does not fall within the categories stated in the interpretation of "details" is not a "detail" of a licence, permit or other similar discretionary benefit.

Where information is a detail of a licence, permit or other similar discretionary benefit it must be disclosed under paragraph 22(4)(i) and there is no need to consider other factors listed under section 22. In particular, paragraph 22(3)(j) has no effect on the disclosure of a detail of such a discretionary benefit.

Public bodies consider the disclosure of personal information supplied in support of a licence, permit or other similar discretionary benefit, or other personal information that is not a detail of such a discretionary benefit, under section 22 and the other provisions of the Act, as they consider the disclosure of any other personal information.

Where there is a legislated requirement that a permit be posted, the personal information that must be posted is considered "public information". Public bodies may disclose this information under paragraph 33(d) of the Act.

Licence, permit or other similar discretionary benefit

"Licence" or "permit" means written authorization from a public body to carry out a named activity. For example, a licence may grant permission to marry, print something, preach, be a driver or owner of a vehicle on a public road, own a dog or gun, or carry on some trade (OED).

The phrase "other similar discretionary benefit" refers to any monetary or non-monetary allowance given by a public body. The nature of these other benefits must be discretionary, that is, the public body must have a choice as to whether to provide this allowance.

Any background "personal information supplied in support of the application for the benefit", either required by the public body or provided voluntarily by the licence applicant, does not fall under this subsection. The public body must determine whether disclosure of the supporting personal information is an unreasonable invasion of personal privacy taking into consideration all the provisions of section 22.

Examples

  • The names of individuals to whom hunting licences have been issued are details of a licence and may not be withheld under section 22. However, these individuals' home addresses and phone numbers, supplied to the public body on the licence applications are not details of the licence. This information may be withheld under section 22 if disclosure would be an unreasonable invasion of personal privacy.

  • The details of a building permit may not be withheld under section 22. If the building permit application contains additional information, either about the property or about the property owner, the permit applicant or other individuals, only personal information that constitutes the details of the permit is released under this paragraph. Exceptions in the Act, including section 22, may apply to the remainder of the information in the permit application.

    The following information constitutes the details of a building permit: permit number, applicant's name, property address, construction authorized, application fee and expiry date.

    Much of the information relating to a building permit relates to the property rather than to the property owner. For example, a building plan submitted with a permit application is not the personal information of the property owner, and therefore would not fall under section 22. Other exceptions may apply in some cases. For example, paragraph 15(1)(k) would apply to a building plan if disclosure could reasonably be expected to harm the security of the building.

  • The names of licensed dog owners may not be withheld under section 22. The names are details of a licence and cannot be withheld under section 22. However, other personal information supplied in support of the licence may be withheld under section 22 if disclosure of the other information is an unreasonable invasion of personal privacy.

Interpretation Note 32 (Section 22(4)(j)):

"Details"

  • The financial amount of the discretionary benefit (e.g., the amount of a loan or grant);
  • An identifying number or symbol assigned to the discretionary benefit;
  • Who or what the discretionary benefit attaches to (e.g., a person or a person and a property);
  • The scope of the discretionary benefit (e.g., what the benefit allows the holder to do);
  • The cost of the discretionary benefit (e.g., application fees); and
  • Any limitations or restrictions on the discretionary benefit (e.g., an expiry date).

Information that does not fall within the categories stated in the interpretation of "details" is not a "detail" of a discretionary benefit of a financial nature.

Where information is a detail of a discretionary benefit of a financial nature, it must be disclosed under paragraph 22(4)(j) and there is no need to consider other factors under section 22. In particular, paragraph 22(3)(j) has no effect on the disclosure of a discretionary benefit of a financial nature.

Public bodies consider the disclosure of personal information supplied in support of a discretionary benefit of a financial nature or other personal information that is not a detail of such a discretionary benefit, under section 22 and the other provisions of the Act as they consider the disclosure of any other personal information.

A "discretionary benefit of a financial nature" is any monetary allowance provided at the choice of the public body.

The information that may be disclosed under this subsection does not include "personal information supplied in support of the application for the benefit," nor may it relate to eligibility for income assistance or social services benefits or to a determination of these benefit levels.

Any background personal information required by the public body or provided voluntarily by the applicant for benefits does not fall under this subsection.

Examples

  • The terms and the amount of a research grant awarded by a public body and the name of the recipient. Any disclosure should not include personal information regarding the recipient such as the recipient's home address or previous annual income.

  • The name of University bursary recipients and the amount of the bursary provided.

  • Personal background information about the directors of a charitable organization applying for a grant-in-aid from a municipality.

Interpretation Note 33 (Section 22(5)):

"On refusing to disclose personal information supplied in confidence" refers to cases where the head of the public body is refusing access to the personal information of an applicant because it would result in an unreasonable invasion of the personal privacy of a third party. This might happen, for example, where the third party provided a character or job reference about the applicant to the public body, on the understanding that her/his name or other identifying information would not be revealed to the applicant. Paragraph 22(3)(h) states that disclosure of such information is presumed to be an unreasonable invasion of the privacy of the person who supplied the confidential information.

"Must [provide] a summary of the information" means that the head of the public body is obliged to prepare a summary for the applicant of the confidential information that has been withheld. This ensures that the applicant receives her/his personal information, which is the opinion, reference or evaluation, but also that the privacy of the third party is protected.

"Unless the summary cannot be prepared without disclosing the identity of a third party who supplied the personal information" means that the head of the public body is not to prepare a summary if it is impossible to do so without revealing the identity of the third party. This might occur, for example, where the information is known only to one third party and the applicant would, therefore, be able to deduce the third party's identity from the summary.

Interpretation Note 34 (Section 22(6)):

Subsection 22(6) means that, where the head of the public body has decided under subsection 22(5) that a summary of the confidential information should be prepared, she or he may permit the third party who supplied the information to prepare the summary. The third party is likely to be more familiar with the particular circumstances and will be better able to summarize the information in such a way that the applicant cannot deduce the third party's identity. This enables the public body to provide the applicant with his or her own personal information, while still protecting the personal privacy of the third party.

Sectional Index of Commissioner's Orders

For orders organized by the Act's section numbers, Click here.

For a summary of Commissioner's orders and policy interpretation of key points, Click here.

Last updated: July 17, 2007