Office of the Information and Privacy Commissioner. Guide to FOIP, CHAPTER 5, Third Party Information. Updated 9 March 2023. 69 exemptions serve to protect valid interests, they must occasionally yield to an overriding public interest to access the information that has been requested.163 An important consideration when determining whether the public interest in releasing the information clearly outweighs the purpose of the exemption is the extent to which denying access to the information in the circumstances would be consistent with the very purpose of the exemption.164 Some things to consider regarding any invasion of privacy: • Consider the representations made by the affected individuals arguing against disclosure. • Should the affected individuals’ privacy rights be given preference over the public interest that exists in disclosing the record. The federal Privacy Act has a substantially similar provision. Subsection 8(2)(m)(i) of the Privacy Act also considers whether “the public interest in disclosure clearly outweighs any invasion of privacy”. The federal Privacy Commissioner established an invasion of privacy test. Government institutions can apply this test to determine the level of privacy risk in the disclosure.165 The test involves three interrelated risk factors that will help government institutions determine whether the public interest in disclosure clearly outweighs any invasion of privacy: a. Sensitivity of the information • Consider whether the type of information is of a detailed (e.g., name and address) or highly personal (e.g., health information) nature. • Evaluate the context in which the information was collected and determine whether any contextual sensitivities apply to the information. For example, a list of public servants may not be considered particularly sensitive, but that same list, if collected to identify employees having a specific illness would be considered sensitive based on the context. 163 ON IPC resource, Public Interest Disclosure, September 2021, at p. 6. 164 ON IPC resource, Public Interest Disclosure, September 2021, at p. 7. 165 Office of the Privacy Commissioner of Canada, Public interest disclosures by federal institutions under the Privacy Act, June 2022, available http://Public interest disclosures by federal institutions under the Privacy Act - Office of the Privacy Commissioner of Canada. Accessed Sept. 1, 2022.
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