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Thursday, May 16, 2019 @ 8:51 AM  

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Appeal by Privacy Commissioner from a Divisional Court decision quashing the Commissioner’s decision that a report prepared by KPMG at the request of Algoma Public Health (APH) should be released as there existed a compelling public interest in the disclosure of the report that clearly outweighed the purpose underlying the personal privacy exemption of the Municipal Freedom of Information and Protection of Privacy Act. The Report was prepared after the media reported that APH’s interim Chief Financial Officer had a criminal record for multiple counts of fraud. APH retained KPMG to conduct a forensic investigation into potential conflicts of interest in the hiring of the interim CFO and whether APH suffered any financial losses as a consequence of his tenure with APH. A journalist then sought disclosure of the KPMG Report. The KPMG Report included personal information concerning B, APH’s former Medical Officer of Health and Chief Executive Officer, who was involved in the hiring process. The parties agreed that personal information contained in the KPMG Report was exempt from disclosure under s. 14 of the Act. The Commissioner found, however, pursuant to s. 16 of the Act, a compelling public interest in disclosure of the KPMG Report clearly outweighed the purpose of the s. 14 exemption, as disclosure of the Report would shed light on the operations of APH and would be in accordance with the Act’s purpose. In his view, the public had an interest in knowing whether there was a conflict of interest in the appointment of the former interim CFO and whether public funds were lost or misappropriated by APH during his tenure.  According to the Divisional Court, the Commissioner was required to identify each piece of personal information that was exempted from disclosure under s. 14, and then balance each piece of exempted information under s. 16. As the Commissioner’s reasons did not contain this detailed analysis, the Divisional Court could not assess whether the outcome was reasonable.

HELD: Appeal allowed. There was no set formula that the Commissioner must follow in drafting reasons engaging with the applicable issues. The failure to identify and weigh each individual piece of protected personal information did not undermine the reasonableness of the Commissioner’s decision. The Commissioner carefully reviewed the record and he identified the personal information contained in the KPMG Report. He considered the different privacy interests at play and the s. 14 factors that supported his finding that the disclosure of the personal information would constitute an unjustified invasion of privacy. The public interest in disclosure was of the information as a whole and it was when this interest was weighed against the purpose of the s. 14 protections at issue that the s. 14 protection must yield. Disclosing the KPMG report absent the personal information would not be responsive to the public interest the Commissioner found to be compelling. This personal information was essential to the determination of whether a conflict of interest existed. The Commissioner’s conclusion that B’s privacy interests should yield, as they were clearly outweighed by the compelling public interest in disclosure, was reasonable.

Barker v. Ontario (Information and Privacy Commissioner), [2019] O.J. No. 1798, Ontario Court of Appeal, P.S. Rouleau, K.M. van Rensburg and L.B. Roberts JJ.A., April 9, 2019. Digest No. TLD-May132019008