Alberta Office of the Information and Privacy Commissioner Order F2012-14 Alberta Health Case File Number F5460 June 29, 2012
An Adjudicator has ruled that Alberta Health must make records for water well information available to an Applicant
Summary: Under the Freedom of Information and Protection of Privacy Act (the “Act”), the Applicant asked Alberta Health (the “Public Body”) for water well information from 1986 to the present, which consisted of water chemistry and microbiological data. The Public Body withheld the requested information under section 17(1) of the Act, on the basis that its disclosure would be an unreasonable invasion of the personal privacy of third parties. While not actually applying section 16(1), the Public Body also raised the possibility that the requested information fell within the exception to disclosure set out in that section, on the basis that disclosure of the information might harm the business interests of third parties. The Applicant requested legal land descriptions associated with the wells from which water had been tested, but excluded the names, addresses and telephone numbers of the well owners, tenants or other individuals who had submitted the water samples. The Adjudicator found that the legal land descriptions, in conjunction with the water analyses contained in the records at issue, generally did not constitute anyone’s personal information, as that term is defined in section 1(n) of the Act. Rather, the information requested by the Applicant was about land, property, wells and/or water. Section 17(1)
therefore could not apply.
However, the Adjudicator found that the records at issue consisted of a small amount of personal information, namely in instances where the legal land description contained in the records, in conjunction with the history of occupants of the land available from other sources, would identify a particular individual who had submitted well water for testing. However, he found that section 17(1) of the Act did not apply to this personal information, as disclosure of the information would not be an unreasonable invasion of personal privacy. The Adjudicator also found that the records at issue would reveal personal information in instances where the water quality data indicated that groundwater was polluted or contaminated, and the source of the pollution or contamination could, by virtue of other available information, be traced to an identifiable individual. However, on consideration of the relevant circumstances, the Adjudicator found that section 17(1) of the Act did not apply to this personal information. Its disclosure was likely to promote public health and safety and the protection of the environment, within the terms of section 17(5)(b), which outweighed the possibility that the individuals in question had supplied personal information in confidence under section 17(5)(f). The Adjudicator further noted that an individual responsible for pollution or contamination would not be exposed “unfairly” to harm within the terms of section 17(5)(e), or have his or her reputation “unfairly” damaged, within the terms of section 17(5)(h). The relevant circumstances set out in those two sections were therefore not engaged so as to weigh against disclosure.
The Adjudicator found that section 16(1) of the Act did not apply to the records at issue, as disclosure would not be harmful to the business interests of any third parties. While suggested in the course of the inquiry, the water quality data requested by the Applicant was neither the “scientific and technical information” nor the “commercial information” of any businesses occupying the land from which the water was extracted. Further, even if the analyses of the water constituted information falling within the terms of section 16(1)(a), and even if the information could be characterized as being supplied in confidence under section 16(1)(b), the Adjudicator found that disclosure of the information could not reasonably be expected to bring about any of the consequences set out in section 16(1)(c). The Applicant argued that disclosure of groundwater data was clearly in the public interest under section 32(1)(b) of the Act. The Adjudicator found that the threshold for triggering that section had not been reached. While research into groundwater was an important objective, the circumstances were not so compelling as to require disclosure to the public.
As neither section 16(1) nor section 17(1) applied to the records at issue, the Adjudicator ordered the Public Body to give the Applicant access to copies of the responsive information in its possession, being copies of any and all Certificates of Chemical Analysis, Microbiological Reports and Chemical Content Summaries (but not including any names, addresses and telephone numbers). The Adjudicator’s order was conditional on the Applicant paying any required fees, or else being excused from paying fees, which was yet to be determined. Also yet to be determined was whether the Applicant was entitled to the creation of a record from the Public Body in a particular format under section 10(2).
Statutes Cited: AB: Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, ss. 1(n), 1(n)(i), 4(1)(l)(v), 6(3), 9(1), 9(2)(a), 10(2), 15, 16, 16(1), 16(1)(a), 16(1)(a)(ii), 16(1)(b), 16(1)(c), 16(1)(c)(i), 16(1)(c)(ii), 16(1)(c)(iii), 17, 17(1), 17(2), 17(2)(a), 17(2)(g)(ii), 17(4), 17(4)(a), 17(5), 17(5)(a), 17(5)(b), 17(5)(e), 17(5)(f), 17(5)(g), 17(f)(h), 18(1)(b), 30, 32, 32(1), 32(1)(a), 32(1)(b), 40(1)(bb), 67(1)(a)(ii), 71(1), 71(2), 72, 72(2)(a), 72(4), 93(1), 93(4) and 93(4)(b); Personal Information Protection Act, S.A. 2003, c. P-6.5, s. (1)(i)(k); Water Act, R.S.A. 2000, c. W-3, s. 3.
Authorities Cited: AB: Orders 96-003, 96-011, 96-013, 96-021, 97-011, 98-014, 98-018, 2000-017, F2002-002, F2004-013, F2004-024, F2004-028, F2005-011, F2006-010, F2006-014, F2006-030, F2007-019, F2008-018, F2008-020, F2008-025, F2008-031, F2009-023, F2009-028, F2010-001, F2010-009, F2010-013 and F2012-06; Qualicare Health Service Corporation v. Alberta (Office of the Information and Privacy Commissioner), 2006 ABQB 515; Leon’s Furniture Ltd. v. Alberta (Information and Privacy Commissioner), 2011 ABCA 94, leave to appeal refused  S.C.C.A. No. 260 (QL); Edmonton (City) v. Alberta (Information and Privacy Commissioner), 2011 ABQB 226. ON: Orders PO-2322 (2004), MO-2053 (2006), MO-2199 (2007) and PO-2900 (2010). CAN: Gordon v. Canada (Minister of Health), 2008 FC 258. Other Sources Cited: Alberta Energy and Utilities Board and Alberta Environment, Development of a Memorandum of Understanding between Alberta Environment and Alberta Energy and Utilities Board to Enhance Collaboration for the Protection and Management of Ground Water (December 20, 2007); Alberta Environment, Alberta Tier 1 Soil and Ground Remediation Guidelines (Edmonton, December 2010); Government of Alberta, Alberta Environment’s Drinking Water Program: A ‘Source to Tap, Multi-Barrier’ Approach (Edmonton, May 2009); Government of Alberta, Water for Life: Alberta’s Strategy for Sustainability (Edmonton, 2003); “Multi-million Dollar Landmark North American Lawsuit on Hydraulic Fracturing and Its Impact on Groundwater” (online: retrieved October 12, 2011); “Province to scale back water monitoring”, Calgary Sun (online: March 14, 2010); Rosenberg International Forum on Water Policy, Report of the Rosenberg International Forum on Water Policy to the Ministry of Environment, Province of Alberta (Berkeley, February 2007); “Tell Us What’s Being Done to Our Ground Water, Demand Albertans”, The Tyee, B.C.’s Home for News, Culture and Solutions (online: October 17, 2011). [Emphasis added]
[Refer also to: Edmonton man wins dispute for water info