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Document
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P-1253
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File #
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P-9600111
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Institution/HIC
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Ministry of Agriculture, Food and Rural Affairs
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Summary
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NATURE OF THE APPEAL: On October 26, 1995, the appellant made a request to the Ministry of Agriculture, Food and Rural Affairs (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ) for access to her personnel file. The appellant is a former temporary employee of the Ministry. The Ministry was unable to locate this file, and provided the appellant with a decision letter stating that access could not be provided for that reason. The appellant appealed this decision in December of 1995. This appeal was resolved when the Ministry provided the appellant with an affidavit setting out details of the various searches which it undertook to locate the missing personnel file. During the course of mediating this first appeal, it became evident that the appellant wanted access to records relating to a sexual harassment complaint she had filed with the Ministry. The Ministry informed the appellant that records relating to these types of complaint investigations were not kept in employee personnel files, and advised her to submit a new request. The appellant did so, and her second request was sent to the Ministry on January 30, 1996. The Ministry located 1,289 pages of responsive records, and denied access to all of them, claiming that they fall within the parameters of paragraphs 1, 2 and 3 of section 65(6) of the Act , and therefore outside the scope of the Act . The appellant appealed the Ministry's decision, and this second appeal is the subject of my order. This office sent a Notice of Inquiry to the appellant and the Ministry seeking representations on the jurisdictional issue raised by sections 65(6) and (7). Representations were received from both parties. PRELIMINARY ISSUE: Representations were provided by the appellant's husband on her behalf. He states that in October 1995 when his wife submitted her first request, he informed Ministry staff that his wife wanted access to her sexual harassment complaint file, and was told: "All [the appellant] has to do is write a letter asking for a copy of her Personnel File which would contain the sexual harassment information, which would give [the appellant] what she is looking for". This issue is important for timing reasons. The amendments to the Act creating the current sections 65(6) and (7) were part of what is known as "Bill 7", which was passed by the Legislature in the fall of 1995 and came into force on November 10, 1995. As a result, if the first request for the "personnel file" is properly interpreted to include the sexual harassment investigation records, it would be subject to the law in effect prior to the enactment of Bill 7. On the other hand, if the request for sexual harassment records is properly interpreted to be a new request, filed in January 1996, it would be subject to the new provisions creating sections 65(6) and (7). In responding to this issue its representations, the Ministry makes the following statement: On October 31, 1995, the Ministry received a request from [the appellant] for "a copy of my personnel file." The request was very clear and in subsequent phone conversations with the requester there was no suggestion that she was seeking a record other than her personnel file. As well, there was no reason for the Ministry to suspect that the request was ambiguous. Circumstances indicated the opposite: the requester was a former employee familiar with Ministry records; the requester had made a previous request for records and the request was clearly stated; and, when the Ministry was contacted by a Union official acting on [the appellant's] behalf, the issue of investigation records was never raised. There was no indication that [the appellant] was seeking anything other than the records she specifically stated in her request. Sections 48 and 24(2) of the Act outlines procedures for making requests, and establish responsibilities of both requesters and institutions. These sections were amended in February 1996 by the Savings and Restructuring Act (Bill 26). The appropriate provisions of sections 48 and 24(2) for the purpose of this discussion are the sections which were in force at the time of the appellant's first request and appeal, both of which predate Bill 26. These sections read as follows: 48(1) An individual seeking access to personal information about the individual shall make a request therefor in writing to the institution that the individual believes has custody or control of the personal information and shall identify the personal information bank or otherwise identify the location of the personal information. 48(2) Subsections 10(2) and 24(2) and sections 25, 26, 27, 28 and 29 apply with necessary modifications to a request made under subsection (1). 24(2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1). It is clear that the appellant and the Ministry have different recollections of what took place at the time of the first request. It is not possible to fully reconcile these different positions. In my view, my responsibility is to determine, based on the evidence provided by both parties, whether the various duties and responsibilities outlined in sections 48 and 24(2) have been properly discharged. It is clear from a number of past orders issued by this office, that if a request is clear and unambiguous on its face, there is no need for an institution to seek clarification from the requester (Orders 33, P-287 and P-743). In my view, the appellant's first request is clear and unambiguous, and it was reasonable for the Ministry to interpret it as it did. According to the Ministry, it was only during mediation of this first appeal that the issue of sexual harassment investigation records was raised, and the appellant agreed at that point to close the first appeal and submit a new request for these specific records. I find that the Ministry satisfied it's obligations under sections 48 and 24(2) of the Act in responding to the appellant's first request, and that the request was properly interpreted to include only those records located in the appellant's personnel file. RECORDS: The records at issue in this appeal consist of 1,289 pages of records concerning the Ministry's investigation into the
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Legislation
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FIPPA
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24(2)
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48(1)
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65(6)
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65(6)1
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65(7)
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Sep 03, 1996
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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