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Document
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P-1182
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File #
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P-9500691
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Institution/HIC
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Ministry of Citizenship, Culture and Recreation
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Summary
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NATURE OF THE APPEAL: The Ministry of Citizenship, Culture and Recreation (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to the appellant and two organizations with which he is affiliated. The Ministry located in its Anti-Racism Secretariat 35 records which were responsive to the request and granted access to 29 of them in their entirety. The Ministry disclosed portions of four of the remaining records and denied access in full to the other two documents, claiming the application of the following exemptions contained in the Act : Cabinet records - section 12 advice or recommendations - section 13 solicitor-client privilege - section 19 invasion of privacy - section 21(1) The appellant appealed the Ministry's decision. A Notice of Inquiry was provided to the Ministry, the appellant and to another individual whose interests may be affected by the disclosure of the records (the affected person). As the records appeared to contain the personal information of the appellant, representations on the possible application of section 49(a) and (b) of the Act were also solicited. Representations were received from all of the parties. DISCUSSION: DISCRETION TO DENY ACCESS TO REQUESTER'S OWN INFORMATION Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual. I have reviewed the remaining records, and parts of the records at issue, and find that all of them contain the personal information of the appellant. In addition, Page 3 of Record 9b, Page 6 of Record 10c and Page 4 of Record 12c contain the personal information of the affected person. Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 49 provides a number of exceptions to this general right of access. Under section 49(a) of the Act , the Ministry has the discretion to deny access to an individual's own personal information in instances where certain exemptions would otherwise apply to that information. CABINET RECORDS The Ministry submits that the withheld parts of Records 9b, 10c and 12c are exempt from disclosure under section 12(1)(e) of the Act . This section reads: A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including, a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; The Ministry submits that the records to which it has applied section 12(1)(e) were : prepared to, among other purposes, brief the Minister of Citizenship for consultation with the Minister of Education about a government decision and/or the formulation of government policy relating to the requester's activities. In Order 131, former Commissioner Sidney B. Linden held that in order to qualify for exemption under this subsection, the record itself must have been prepared to brief a Minister in relation to matters that are either: (a) before or proposed to be brought before the Executive Council or its committees; or, (b) the subject of consultations among ministers relating to government decisions or the formulation of government policy. In Orders 22 and 40, Commissioner Linden, in addressing the proper interpretation to be placed on the wording of section 12(1)(e), held that: The use of the present tense in the subsection precludes its application to a record that has already been presented to and dealt with by the Executive Council or its committees. In my view, the use of the word "are" in that portion of the section which discusses consultations among ministers also precludes the application of section 12(1)(e) to a record which has been, but is no longer, the subject of consultations among ministers. In this appeal, Records 9b, 10c and 12c are dated between November, 1992 and March, 1993. The Ministry has not provided me with any evidence that the matters to which the records relate are the subject of consultations among ministers which relate to government decisions or the formulation of policy. Nor have I been provided with any evidence that the records relate to matters which are either before, or proposed to be brought before the Executive Council or one of its committees. Accordingly, I find that the exemption provided by section 12(1)(e) has no application to Records 9b, 10c and 12c. I must now determine whether the minutes are exempt from disclosure under the introductory wording of the mandatory exemption provided by section 12(1). This preamble provides that the Ministry must refuse to disclose a record where such disclosure would reveal the substance of deliberations of the Executive Council or one of its committees. Based on previous orders, it is possible that a record which has never been placed before an Executive Council or its committees may, nonetheless, qualify for exemption under the introductory wording of section 12(1). This result will occur where a Ministry establishes that the disclosure of the record would reveal the substance of deliberations of an Executive Council or its committees, or that its release would permit the drawing of accurate inferences with respect to the substance of deliberations of an Executive Council or its committees. The introductory text of subsection 12(1) reads: A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of an Executive Council or its committees, including ... (emphasis added). Again, the Ministry has not provided me with any evidence that the disclosure of the matters to which the records relate would reveal the substance of deliberations of the Executive Council or its committees. Nor has the Ministry established that the disclosure of the records would permit the drawing of accurate inferences with respect to the substance of the deliberations of
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Legislation
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FIPPA
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12(1)(e)
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21(2)(f)
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21(2)(h)
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Section 19
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Subject Index
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Signed by
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Donald Hale
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Published
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May 23, 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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