Naming Names in the FRO: Ontario (MCSS) v John Doe
The Family Responsibility Office (“FRO”) is a division of the Ministry of Community and Social Services that is responsible for collecting, distributing, and enforcing child and spousal support payments. It has broad enforcement powers for those who fall behind on their support. These include garnishing bank accounts, suspending driver’s licences and passports, and issuing writs of seizure and sale on property.
Use of these powers has made the FRO staff and individual employees the target of threats by delinquent support payors. These threats were the subject of the Ontario Court of Appeal’s (“ONCA”) recent decision in Ontario (Minister of Community and Social Services) v John Doe, 2015 ONCA 107, released on February 17.
A support payor (“Requester”) believed the FRO had mismanaged his file and wanted to discover the cause of the mismanagement. He made a request pursuant to section 47(1) the Freedom of Information and Protection of Privacy Act, RSO 1990 c F.31 (“Act”) for personal information about himself in the FRO’s files. These files included court documents, letters between FRO staff and the Requester, and internal FRO records. FRO employee names appeared on some of these documents.
Under the Act, the Minister of Community and Social Services (“Minister”) is entitled to refuse to disclose records where the disclosure “could reasonably be expected to endanger the life or physical safety” or “seriously threaten the safety or health” of FRO staff under sections 14(1)(e) and 20. The Minister relied on these provisions to redact the names of FRO employees in the documents sent to the Requester.
The Minister’s decision was made, in part, because of a Grievance Settlement Board (“GSB”) order from 2000. The order involved FRO employees who alleged the Ministry’s policy requiring employee identification to the public violated terms of the collective agreement requiring the employer to take reasonable measures for the protection of employee health and safety. As a result of the order, the FRO is not required to provide their full employee names to the public.
Despite the GSB order, an Adjudicator of the Information and Privacy Commission of Ontario (“Commissioner”) concluded that the Minister was not entitled to redact the names.
The Ministry and the FRO employee’s union applied for judicial review. They argued the Commissioner’s decision was unreasonable for two reasons. First, he acted unreasonably in refusing to accept the sufficiency of their evidence. Second, he acted unreasonably by failing to consider the heightened risk of danger to safety or health as a result of the Requester’s ability to broadly disseminate the names of FRO staff. The Divisional Court dismissed the application. An appeal was made to the ONCA.
The Commissioner’s Order and the Divisional Court
In making his decision, the Commissioner considered the 24 documented threats against FRO employees between 2002 and 2006. He noted there was no indication that the Requester had uttered threats any threats to FRO employees, or that he posed any type of threat to any FRO employees.
The Commissioner differentiated the request from the facts in the Divisional Court’s decision Duncanson v Toronto (Metropolitan) Police Services Board, 1999 CanLII 18726 [Duncanson]. In that case, the names of all currently employed police officers were sought. The court rejected the disclosure because it would include the names of undercover and plainclothes officers whose work required anonymity.
The Divisional Court rejected the two reasons for unreasonableness argued by the Ministry and union. Considering the sufficiency of the evidence, the court found that the GSB order was only evidence of health and safety concerns, not evidence that disclosure of FRO names to the Requester posed a health and safety threat.
Ignoring the substance of the Ministry’s argument that the potential for broad dissemination of the FRO employee names increased the health and safety threat, the court stated the Act required “demonstration that disclosure of the requested information to the requester would pose a risk to the health and safety of the identified individuals by the requester rather than by the public at large.” The court went on to state disclosure to the requester is not presumed to be disclosure to the public.
Shortly after the Divisional Court rendered its decision in the case, the Supreme Court of Canada clarified what is meant by the phase “could reasonably be expected to” in sections 14(1)(e) and 20 of the Act in Ontario (Community Safety and Correctional Services) v Ontario (Information and Privacy Commissioner), 2014 SCC 31. The court held that the phrase provides “a middle ground between that which is probable and that which is merely possible” (para 54). An institution must provide evidence that goes “well beyond” or “considerably above” the mere possibility of harm.
The ONCA found that the Commissioner’s analysis meets this standard and dismissed the appeal. In making this determination, the court listed several factors that minimized the possibility of a threat to health and safety. First, between 2002 and 2006, the FRO received only 24 documented threats out of approximately 3 million calls. Second, it was determined the Requester himself did not pose a threat. Third, there was no evidence the FRO employees whose names were going to be disclosed had ever been the subject of threats.
The court accepted the Divisional Courts determination that the GSB order did not conflict with the Commissioner’s order, finding the GSB order was meant to be confined to the specific circumstances giving rise to the order.
The ONCA decision provides a better answer to the Ministry’s concern that the Requester could broadly disseminate the names of the FRO employees. In paragraph 30 the court stated:
In my view, the risk that a requester will share the information provided to him or her is a relevant factor, to be assessed with all of the other relevant factors, in determining whether or not the evidentiary threshold established by the Supreme Court of Canada in Ontario (Community Safety and Correctional Services) has been met. And this, in my view, was what the Commissioner did.
The evidence the court uses to show the Commissioner “clearly” turned his mind to the issue of broad dissemination FRO names was his discussion of Duncanson and his consideration of whether any of the named employees had previously been the subject of threats. The court does not articulate how it reached this conclusion.
Based on the ONCA’s statements, future orders by the Commissioner on sections 14(1)(e) and 20 will need to consider the risk that requesters will broadly disseminate disclosed information. However, given the limited treatment of the issue by the court, this does not seem to be a significant factor.