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Document
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MO-1527-I
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Institution/HIC
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Toronto District School Board
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Summary
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NATURE OF THE APPEAL: The Toronto District School Board (the Board) received a series of related requests under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to records concerning the requester's son's education and the involvement of their family with the Board. In response to the requests, the Board located a large number of records and granted access to some of them. Access to the majority of the records was denied as the Board initially refused to confirm or deny the existence of such records under section 8(3) of the Act . In addition, the Board took the position that the records did not fall under the jurisdiction of the Act due to the operation of section 52 of the Act or were outside its custody or control and were not, therefore, subject to the Act under sections 1 and 4(1). The Board also expressed its reliance on the provisions of section 54(c) as a grounds for denying access to the records. In the alternative, the Board claimed that the records were subject to the following exemptions contained in the Act : advice or recommendations - section 7(1), in conjunction with section 38(a); invasion of privacy - sections 14(1) and 38(b); danger to safety or health - section 13. The requester, now the appellant, appealed the Board's decision to deny access to the records. During the mediation stage of the appeal, the Board withdrew its reliance on section 8(3) and purported to apply the discretionary exemptions in sections 8(1)(a), (b), (c), (d), (e) and 8(2)(c) of the Act to one sentence contained in page 4 of Record A25. The appellant was provided with an Index of the records remaining at issue and was advised that records responsive to portions of his requests did not exist. Additional records were disclosed to the appellant in late December 2001. The appellant is of the view that additional records beyond those identified by the Board should exist and disputes the ability of the Board to raise the discretionary exemptions in sections 8(1) and (2) at the mediation stage of the appeal. The requests and the Board's responses to them were delineated in the Revised Report of Mediator provided to the parties on December 28, 2001. I decided to seek the representations of the Board initially, as it bears the onus of proof that the records are, in fact, exempt under the provisions claimed. The Board submitted detailed representations in response to the Notice of Inquiry. ISSUE: The Board has requested that portions of its representations not be shared with the appellant in the circumstances of this appeal. The purpose of this interim order is to rule on this confidentiality request. DISCUSSION: Sharing of representations procedure In the Notice of Inquiry cover letter to the Board, I stated: The representations you provide to this office may be shared with the appellant, unless there is an overriding confidentiality concern. The procedure for the submitting and sharing of representations is set out in the attached document entitled Inquiry Procedure at the Adjudication Stage . Please refer to this document when preparing your representations. The Inquiry Procedure document states: In its representations, the first party must indicate clearly, and in detail: which information in its representations, if any, the party wishes the Adjudicator to withhold from the second party; and its reasons for this request (see confidentiality criteria below). The document later sets out the criteria for withholding representations, as follows: The Adjudicator may withhold information contained in a party's representations where: (a) disclosure of the information would reveal the substance of a record claimed to be exempt or excluded; (b) the information would be exempt if contained in a record subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act; or (c) the information should not be disclosed to the other party for another reason. For the purposes of paragraph (c) above, the Adjudicator will apply the following test: (i) the party communicated the information to the IPC in confidence that it would not be disclosed to the other party; and (ii) confidentiality must be essential to the full and satisfactory maintenance of the relation between the IPC and the party; and (iii) the relation must be one which in the opinion of the community ought to be diligently fostered
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Legislation
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Subject Index
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Published
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Apr 12, 2002
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Type
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Order – Interim
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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