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Thursday, June 21, 2012

Privacy Commissioner deals with concerns about disclosure of contamination data

The Ontario Information and Privacy Commissioner has recently issued a decision upholding an earlier decision by the Ministry of the Environment (MOE) to release partial records related to an ongoing contamination situation in Cambridge, Ontario.  According to the decision, trichloroethylene (TCE) leaked from a facility into neighbouring properties, contaminated local groundwater and may have posed a health hazard due to the movement of contaminant vapours from the groundwater into the basements of nearby homes.

The MOE received a request for access to information about the contamination, including all test results and reports on remediation in the possession of the MOE.  A decision was made to disclose some of the documents and information requested, but without any homeowner names except where a release had been provided.  At least one homeowner challenged the decision, as did the company responsible for the contamination and clean-up. 

The Commissioner declined to prevent the disclosure of property information on the basis that it was personal information.  The argument was made that property identification information could be used to obtain the names of property owners and was, therefore, personal information.  The Commissioner disagreed:

I also wanted to address the appellant and affected person’s arguments that the individual homeowners would be identifiable from a disclosure of their addresses or other location information using publicly available resources. The fact that the names of individual owners could be determined by a search in the registry office or elsewhere does not convert the municipal address from information about a property to personal information. In Order PO-1847, former Adjudicator Katherine Laird noted that, in the context of a discussion about correspondence concerning possible land use, “…where records are about a property, and not about an identifiable individual, the records may be disclosed, with appropriate severances, notwithstanding the possibility that the owners of the property may be identifiable through searches in land registration records and/or municipal assessment rolls.”
The Commissioner also rejected the argument that disclosure of the information would result in undue financial loss for the homeowners involved:
I accept that the stigma of environmental contamination can result in the lowering of property values and may affect the ability of property owners to sell their properties in the free market. However, in this case, I find that the appellant has not provided me with detailed and convincing evidence that the disclosure of these records could reasonably result in undue loss to the homeowners. Firstly, as the ministry notes, the media has already reported of the contamination in the community. The records contain these newspaper reports. Secondly, from my review of the records, I find that there has already been some public disclosure of the test results to the homeowners and businesses in the community. And finally, I agree with the ministry’s representations that the information in the records including test results and remediation reports, provide a clearer picture of those properties that have been properly remediated to ministry standards. I am not persuaded that disclosure of these records would result in undue loss to the homeowners in the community.
Read the full decision at: Ontario (Environment) (Re).