Daycare denied parent access to his personal information

PIPEDA Case Summary #2005-309

(Paragraph 4(1)(a); Principle 4.9; subsection 9(1), paragraphs 9(3)(a) and 9(3)(b))

Complaint

An individual alleged that the daycare his child attended had denied his request for access to his personal information.

Summary of Investigation

The parents of a child in daycare separated and problems regarding the child’s custody and her placement at the daycare ensued. One parent wanted the child to remain at the daycare while the other wanted her placed in another facility. The complainant expressed concern about the care being provided by the daycare. The Family Court subsequently became involved and it ruled that the mother would be responsible for making all decisions about the child’s care.

The complainant submitted a request for access to all personal information held by the daycare. When the daycare did not respond to the complainant’s request, he brought his concerns to the Office. The daycare agreed to process the requested documentation, but proposed to deny the complainant access to some information, citing the provisions of the Personal Information Protection and Electronic Documents Act that allow an organization to withhold personal information if it pertains to third parties, is protected by solicitor-client privilege, or would reveal confidential commercial information.

Findings

Issued April 18, 2005

Application: Under paragraph 4(1)(a), Part I of the Personal Information Protection and Electronic Documents Act (the Act) applies to every organization in respect of personal information that the organization collects, uses or discloses in the course of commercial activities. Principle 4.9 states that upon request, an individual shall be informed of the existence, use, and disclosure of his or her personal information and shall be given access to that information. There are certain exemptions to this right of access, three of which were relevant to the complaint: subsection 9(1), which states that an organization shall not give an individual access to personal information if doing so would likely reveal personal information about a third party. However, if the information about the third party is severable from the record containing the information about the individual, the organization shall sever the information about the third party before giving the individual access; paragraph 9(3)(a), which provides that an organization is not required to give access to personal information only if the information is protected by solicitor-client privilege; paragraph 9(3)(b), which states that an organization is not required to give access to personal information only if to do so would reveal confidential commercial information.

The first matter that needed to be determined in this case was the issue of jurisdiction. Daycare officials said that the centre was a non-profit organization subsidized by city funding. They also claimed that the centre was subject to provincial and municipal legislation. This Office confirmed that the centre is not a municipal-run day care. We also found that there was a commercial activity involved, namely, payment for child care services. As such, this Office determined that the daycare was subject to the Act.

The Assistant Privacy Commissioner then reviewed the daycare’s reliance on the cited exempting provisions. She agreed that the daycare could rely on subsection 9(1) and paragraph 9(3) (a) to withhold some of the complainant’s personal information. For the application of paragraph 9(3)(a), the Commissioner agreed that this provision could be applied to information relating to advice that the daycare sought or obtained from its Legal Counsel with regard to the problems it experienced with the complainant. However, she did not concur that the confidential commercial information exemption described in paragraph 9(3) (b) applied, and the daycare agreed to release this information. Once this was done, the Assistant Commissioner was satisfied that the complainant had been provided with access to all of the personal information to which he was entitled, in accordance with Principle 4.9.

The Assistant Commissioner concluded that the complaint was resolved.