November 8th - 2008

Property appraisal considered personal information

When banks conduct a residential property assessment as part of a loan application, the property owner has a right to receive a copy of the assessment.

When banks conduct a residential property assessment as part of a loan application, the property owner has a right to receive a copy of the assessment. A bank has the right to sever information that is not the property owner’s personal information.
 
This is according to a recent decision of the Office of the Privacy Commissioner (OPC).
 
The full Personal Information Protection and Electronic Documents Act (PIPEDA) Case Summary can be found on the OPC’s Web site at www.privcom.gc.ca. Click on the link to Commissioner’s Findings on the left side of the screen. Click on the link to Findings under PIPEDA, or go directly to http://www.privcom.gc.ca/cf-dc/2008/390_20080507_e.asp.
 
The case came about when a homeowner filed a complaint with the OPC after writing to his bank asking for a copy of the appraisal that had been done on his residential property earlier that year. The bank refused the request, saying that the appraisal was not the homeowner’s personal information since it was information about the property and not about him. According to the bank, the document was confidential commercial information.
 
The homeowner was listed as the borrower on the appraisal document.
 
In responding to the OPC, the bank suggested that even if the OPC found the property appraisal document to be personal information, it would still be exempt from access because it was confidential commercial information.
 
The Canadian Bankers Association (CBA) presented its views to the OPC, supporting the bank’s standpoint. The CBA also stressed that the banks are concerned that if property appraisals are considered personal information, they could be inundated with access requests.
 
The CBA argued that:

  • The information on a property appraisal form relates to the property itself, for example, the address, lot and house size, number of rooms, other buildings, services and amenities, type of construction. It is a statement about the value of real estate with certain attributes, and is not about the individual.
  • The appraisal contains no information about the current or future owners of the subject property. Who is living at an address has no bearing on the value of the property, so no personal information is needed on the appraisal form.

The CBA added that if an appraisal contained information about similar neighbouring properties, such information would have to be severed before giving the appraisal to a borrower.
 
After deliberating, the Assistant Privacy Commissioner supported the homeowner’s request.
 
The Assistant Commissioner first examined the question of whether the residential property appraisal should be defined as personal information under section 2 of the Act. After considering both the bank’s views and the CBA’s, as well as the OPC’s earlier deliberation on the same question in another finding, the Assistant Commissioner maintained that, since the property was in the complainant’s (the homeowner’s) name, the information relating to the property, including its market value, was his personal information and he had a right of access to it.
 
But the OPC did agree with the bank that some information contained in the appraisal didn’t qualify as the property owner’s personal information. The appraiser’s name and contact information and data concerning other properties were considered to be third party information under subsection 9(1) of the Act.
 
The bank ultimately did send the property owner a copy of the assessment, but because the OPC decided that the bank had the right to apply exemptions as outlined in section 9 of the Act, all non-personal information was severed.
 
What it says in the PIPEDA
Section 2 defines personal information as information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization. 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.
 
Subsection 9(1) stipulates that despite Principle 4.9, 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)(b) notes that an organization is not required to give access to personal information only if, amongst other exemptions, to do so would reveal confidential commercial information. The Act also notes that in the circumstances described in 9(3)(b), if giving access to the information would reveal confidential commercial information and that information is severable from the record containing any other information for which access is requested, the organization shall give the individual access after severing.

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Ontario Real Estate Association

Jean-Adrien Delicano

Manager, Media Relations

JeanAdrienD@orea.com

416-445-9910 ext. 246

Ontario Real Estate Association
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