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Document
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P-880
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File #
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P-9200506
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Institution/HIC
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(Re-determination) Ministry of the Attorney General
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Summary
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BACKGROUND: On September 10, 1993, I issued Order P-534. This order disposed of the issues arising in an appeal of a decision of the Ministry of the Attorney General (the Ministry) in response to a request made under the Freedom of Information and Protection of Privacy Act (the Act ). As the wording of the request is germane to the issues which are addressed in this order, I will quote the request verbatim: This is a request for information on funding by the Attorney General's ministry of Project 80, the municipal corruption squad made up of police officers from Metro, York Region and the Ontario Provincial Police. I would like information on how much money the ministry has provided to them for their ongoing investigation. I understand that at least some of the payments were made in April of 1992, but I wish information on all payments, if there are more. Apart from the specific dollar figure, I wish access to any documentation explaining the reasons for this funding and any special conditions. I also wish access to any correspondence, interministry, or outside the ministry, dealing with this funding. The Ministry originally identified seven records containing 84 pages as being responsive to the appellant's request. The Ministry denied access to these records in their entirety, claiming the application of several of the law enforcement exemptions found in section 14(1) of the Act . In Order P-534, I made an initial determination as to whether all seven records were, in fact, responsive to the request. I stated: I have reviewed all the records and, in my opinion, a large portion of the records identified by the Ministry as being responsive to the appellant's request deal, in fact, with matters other than the funding of Project 80. Those parts of the records identified by the Ministry that are not responsive to the request are outside the scope of this appeal and will not be considered in this order. [original emphasis] I concluded that only portions of the documents identified by the Ministry as Records 2, 4, 6 and 7 were responsive to the request and that the contents of Records 1, 3 and 5 were not. As far as the application of the exemptions to the parts of the records I found to be responsive was concerned, I found that only a portion of page 40 of Record 6 qualified for exemption under section 14(1) of the Act . I ordered the Ministry to disclose the responsive portions of Records 2, 4 and 7 in their entirety and the remainder of the responsive portion of Record 6. The Ministry applied for judicial review of the order seeking to quash that part of the Order which required that certain portions of the records be disclosed. The appellant brought a cross-application seeking, inter alia , to quash my finding that much of the information in the records at issue was not responsive to the request. The appellant also maintained that I erred in making a determination as to whether or not portions of the records were "relevant" after the Ministry had already determined their relevance, and that I ought to have sought submissions from the parties on this issue. On June 17, 1994, the Divisional Court issued its decision in the application and cross-application ( Ontario (Attorney-General) v. Fineberg ) (1994), 19 O.R. (3d) 197). The Court dismissed the application but allowed the cross-application, in part, on the issue of relevancy. The Court stated, at p. 203: In our opinion, the Officer must have the jurisdiction to consider the information and records at issue, in light of the wording of the request. Such jurisdiction necessarily entails the right to determine the scope of the request and the related relevance of the information at issue. However, section 52(13) imposes a mandatory obligation on the Officer to provide the person making the request, and others as specified, with an opportunity to make representations. This was not done and it does not now lie in counsel's mouth to submit that [the appellant], or the Ministry could not have made meaningful representations. Subsection 52(1) contains no such qualification. In the result, this portion of the Inquiry Officer's order is set aside and the matter is remitted back for a re-determination of the issue of relevancy and, potentially, for a consideration of whether any of the exemptions apply, all with the benefit of representations from the parties to the request proceedings. Both the Ministry and the appellant sought leave to appeal the decision. On September 12, 1994, the Court of Appeal dismissed the applications for leave. PRELIMINARY PROCEDURAL MATTERS I made the initial decision to undertake this re-determination (the Divisional Court's terminology) in two stages and to seek representations in writing. I indicated to the parties that in the first stage I would deal with the issue of relevancy. Then, if necessary, I would seek representations on the issue of whether any of the exemptions applied to the records which I decided were relevant. This order addresses the first stage issue only. Throughout the re-determination, counsel for the appellant has raised a number of specific procedural objections as well as commenting on what he perceives to be the "unfairness" in the process as a whole. Because he has presented such extensive arguments on these points, I intend to address them in some detail. At the outset, I wish to make some general comments about the appeals process under the Act, which involves a unique statutory decision-making scheme. In most proceedings, the rules of natural justice or procedural fairness dictate that, among other things, (1) the proceedings are open, (2) the parties are entitled to know the case of the other side, and (3) the parties have the right to comment on or respond to the submissions made by the other parties. In appeals before the Commissioner, the issue to be determined is whether a record should be disclosed to a requester. Premature disclosure of a record, or any document referring to the content of a record, would render the entire process moot. Therefore, the nature of the matter to be decided in appeals before the Commissioner dictates that a non-traditional approach be taken to the adjudication of appeals, an approach which ensures that the confidentiality of the records is maintained. The
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Legislation
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Feb 28, 1995
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Type
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Order
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