April 22, 1998

To:Toronto Community Council

From:H.W.O. Doyle

City Solicitor

Subject:Boulevard Cafe Application: Access to Addresses

  Purpose:

 To advise the Toronto Community Council of the legal implications of providing Ward Councillors with a list of voters' addresses relating to a boulevard cafe application poll.

 Source of Funds:

 Not Applicable

 Recommendations:

 That this report be received for information.

 Toronto Community Council Reference/Background/History:

 The Toronto Community Council, on April 1, 1998, had before it a report (February 19, 1998) from the Director, By-law Administration and Enforcement, City Works Services, respecting an Appeal of a Denial of Application for Boulevard Cafe - Major Street Flankage of 1021 Gerrard Street East (Don River).

 The Toronto Community Council requested the City Solicitor, in consultation with appropriate officials, to report to the Community Council on providing the Ward Councillors with a list of those addresses which have voted in the poll.

 Comments and/or Discussion and/or Justification:

 Chapter 90 of the City of Toronto Municipal Code governs the procedures to be followed in taking a poll where there is a statutory or Municipal Code requirement that a poll be taken by the City. Statutory polls include permit parking and Municipal Code polls include boulevard cafes, residential boulevard parking, commercial boulevard parking on residential flankages and front yard parking.

 The Municipal Code provides that the secrecy of a ballot shall be maintained and all polling lists and returned ballots shall be treated in confidence and are subject to the provisions of the Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA"). Pursuant to the City of Toronto Act, 1997 the Municipal Code remains in effect unless and until amended or repealed by the City of Toronto.

 It is my opinion that no information contained on a ballot, including voters' addresses, should be disclosed given the confidentiality provision of the Municipal Code. To reveal any information on a ballot, including portions of information, would defeat the whole purpose of secrecy and confidentiality of a ballot.

 As previously noted, the Municipal Code states that returned ballots are subject to the provisions of MFIPPA. MFIPPA provides a right of access to a record in the custody or control of an institution, unless the records fall within certain disclosure exemptions specified in the statute.

 One of the disclosure exemptions that is likely to apply to the request for voters' addresses is the exemption respecting personal information. Subject to certain exceptions, personal information shall not be disclosed to any person other than the individual to whom the information relates. The issue is whether the addresses alone, without the names of the voters, constitutes personal information.

 Orders issued by the Information and Privacy Commissioner (IPC) have held that if there is a reasonable expectation that the individual can be identified from the information, then such information qualifies as personal information. While it could be argued in this instance that individuals are not identified by the addresses alone, in my opinion the better view would be there is a sufficient nexus between the addresses and the persons living at those addresses, or owning properties at those addresses, that the individuals could be identified from the addresses. Accordingly, it is likely that the addresses would be considered personal information for the purposes of MFIPPA.

 The IPC has previously considered the issue of access to ballots in Order M-340. In that case the requester was seeking access to the entire ballot and not just portions thereof. In that Order, the IPC upheld the decision of the former City of Toronto to deny access to the ballots of individuals as they contained the personal information of individuals other than the requester. The ballots returned by entities which were not natural persons were ordered disclosed.

 Personal information may be disclosed if the information falls within one of a number of exceptions provided for in the MFIPPA. Relevant exceptions include (i) consent to disclosure by the individual to whom the information relates and (ii) a determination that the disclosure does not constitute an unjustified invasion of personal privacy. MFIPPA sets out some factors to be taken into account when determining whether or not disclosure constitutes an unjustified invasion of personal privacy including whether or not the personal information has been supplied in confidence by the individual to whom the information relates. Given the confidentiality provisions of the Municipal Code, it is likely that any personal information supplied by a poll respondent on a ballot would be considered to have been supplied in confidence.

 Conclusions:

 The Municipal Code provision governing polls for boulevard cafe applications provides for the secrecy of ballots and states that all returned ballots shall be treated in confidence. Accordingly, no information on a ballot should be disclosed. The Code also specifies that all polling lists and returned ballots are subject to the provisions of MFIPPA. It is my view that the voters' addresses are protected from disclosure under MFIPPA.

 Contact Name:

 Jane Speakman

Legal Services

392-1563

H.W.O. Doyle

City Solicitor

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