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Document
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P-1390
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File #
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P_9600365
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Institution/HIC
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[Reconsideration] Ministry of Finance
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Summary
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BACKGROUND: This order sets out my decision regarding a reconsideration request made by the Ministry of Finance (the Ministry) with respect to Order P-1351, issued by Inquiry Officer Donald Hale on February 25, 1997. To facilitate my analysis of the issues in this reconsideration, I will begin with a brief outline of the history of this matter. The appellant is a representative of the City of Toronto Urban Development Services Department. On behalf of the City of Toronto, he submitted a request to the Ministry under the Freedom of Information and Protection of Privacy Act (the Act ). The request was for access to records relating to "the implementation of market value assessment or actual value assessment on neighbourhoods and/or individual properties in the City of Toronto". Specifically, the appellant sought access to any studies on the "distribution of tax increases or decreases along with any other impact studies which have been prepared". The Ministry denied access to the impact studies which it prepared as part of the "Golden Report", claiming the application of section 22(a) of the Act , as these records are publicly available in a CD-ROM version from Publications Ontario. The Ministry also denied access to three additional impact studies which it prepared, under the Cabinet records exemptions contained in sections 12(1)(c) and (d) of the Act . The appellant appealed the Ministry's decision to deny access to the three impact studies under section 12(1), and also submitted that additional records responsive to his request should exist. In this order, I will refer to the three additional impact studies, which are the records at issue in this appeal, as "the impact studies" or "the records at issue". Order P-1351 dealt with the issue of whether section 12(1) applied to the impact studies, and whether the Ministry had conducted a reasonable search for responsive records. In that order, Inquiry Officer Hale upheld the application of the exemption provided by section 12(1) of the Act , but included two provisions in the order relating to the consent of the Executive Council under section 12(2)(b). This section states: Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record where, the Executive Council for which, or in respect of which, the record has been prepared consents to access being given. The order provisions which relate to this section appear on page 5 of the order. They state as follows: 1. I order the Ministry to outline the relevant fact situation to the Premier (as head of the Executive Council) or his designate, in writing, to determine whether the Executive Council would be prepared to consent under section 12(2)(b) of the Act to the release of the records. I further order that the response given by the Executive Council is to be provided to the appellant no later than March 27, 1997 . 2. I order the Ministry to provide me with a copy of the response of the Executive Council mentioned in Provision 1 of this order no later than April 1, 1997 . This document should be sent to my attention c/o Information and Privacy Commissioner/ Ontario, 80 Bloor Street West, Suite 1700, Toronto, Ontario, M5S 2V1. In addition, Inquiry Officer Hale found that the Ministry's search for responsive records was reasonable, and he dismissed that aspect of the appeal. The following is a summary of the submissions made by the Ministry in its letter requesting that the order be reconsidered. (1) The Executive Council only had two scheduled meetings during the month of March, 1997. The first was on March 5, 1997. Since the order was issued on February 25, there was insufficient time for the Minister to review the order and have the matter placed on the agenda for that meeting. The second meeting was on March 31, 1997, which was too late to comply with order provision 1. (2) The Ministry submits that neither the Minister of Finance, nor the Inquiry Officer, nor the Information and Privacy Commissioner, has the authority to require the Executive Council to place an item on its agenda, nor to impose a deadline on the Executive Council's determination of a matter. (3) The Ministry submits that the inquiry process was lacking in procedural fairness because the Inquiry Officer did not provide the Ministry with an opportunity to comment on the order conditions imposing an obligation on the Ministry to place the matter before Executive Council, nor on the timing imposed by this condition (as discussed above under item (1)), nor on the five factors which (according to the Ministry) the Inquiry Officer relied on as evidence of "changed circumstances" on pages 3-4 of the order. (4) The Ministry disputes the statement in the order to the effect that the head must determine whether or not to bring the matter before the Executive Council for the purposes of section 12(2)(b) based on the circumstances of the individual case and the nature of the records at issue (see page 3 of the order). The Ministry submits that there is no statutory basis from which it can be inferred that the head has a reviewable discretion whether or not to seek the Executive Council's consent to disclosure of a record which would otherwise be exempt under section 12(1). As well as disagreeing substantively with the Inquiry Officer's interpretation on these points, the Ministry also submits that it should have been provided with an opportunity to make submissions on these issues. The reconsideration request does not relate to the finding in Order P-1351 to the effect that section 12(1) applies to the impact studies, nor to the Inquiry Officer's finding that the Ministry's search for responsive records was reasonable, and I will therefore not review these aspects of the order. Accordingly, the finding that section 12(1) applies (unless consent is obtained under section 12(2)(b)), and the Inquiry Officer's dismissal of the appeal relating to the existence of additional records, will remain in effect no matter what determination is reached in the present order. The IPC's policy on reconsiderations provides as follows. When an application for reconsideration of an order is received, the order should be reconsidered only where: 1. there is a fundamental defect in the adjudication process (for example, lack of procedural fairness) or some other jurisdictional defect in the order, or; 2. there is a typographical or other clerical error in the order which has a bearing on the decision or where the order does not express the manifest intention of the decision maker. An order should not be reconsidered simply on the basis that new evidence is provided, whether or not that evidence was obtainable at the time of the inquiry. Because the Ministry raised a substantive jurisdictional issue, I invited the appellant and the Ministry to make submissions on the reconsideration request. After outlining the grounds advanced by the Ministry and the IPC's reconsideration policy statement, as set out above, I specifically invited the parties to submit representations on the following issues: (1) Based on the IPC's reconsideration policy, quoted above, should the discussion of section 12(2)(b) of the Act on pages 3 and 4 of Order P-1351, and order provisions 1 and 2 on page 5, be reconsidered? (2) If the answer to question (1) is yes, should the discussion and interpretation of section 12(2)(b) whic
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Legislation
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FIPPA
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12(2)(b)
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52(1)
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54(2)
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54(3)
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50(1)
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Subject Index
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Signed by
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John Higgins
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Published
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May 08, 1997
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Type
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Reconsideration Order
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