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Document
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P-1516
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File #
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P-9700190
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Institution/HIC
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Ministry of Community and Social Services
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Summary
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NATURE OF THE APPEAL: The Ministry of Community and Social Services (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ). The requester, on behalf of a trade union which represents some Ministry employees, sought access to copies of any records relating to a contract for the provision of services between the Ministry and a named consulting company. The Ministry located 50 responsive records and granted access to 37 of them in their entirety. Access to ten complete records and to portions of three others was denied, pursuant to the following exemptions contained in the Act : third party information - sections 17(1)(a) and (c) economic and other interests - section 18(1)(f) proposed plans, projects or policies of an institution - section 18(1)(g) solicitor-client privilege - section 19 The Ministry also advised the requester that, because of the operation of section 65(6) of the Act , the undisclosed portions of three records and one complete record fall outside the jurisdiction of the Act . The requester, now the appellant, appealed the Ministry's decision. During the mediation of the appeal, the Ministry agreed to disclose certain additional records, in whole or in part, and the appellant agreed not to pursue access to the document for which solicitor-client privilege had been claimed. This office provided the appellant, the Ministry and the consulting company (the affected party) with a Notice of Inquiry soliciting their submissions on the applicability of the exemptions claimed and the possible application of section 65(6) to the records. Representations were received from all of the parties. The records remaining at issue consist of the undisclosed portions of Schedules B and F to Record 1, Page 3 of Record 10 and all of Records 11, 16, 17, 19, 36, 37, 41 and 49. DISCUSSION: JURISDICTION The Ministry submits that the undisclosed portions of Pages 5 and 20 of Schedule B to Record 1, Page 3 of Record 10 and Record 41 in its entirety fall outside the jurisdiction of the Act because of the operation of section 65(6)3. In order to fall within the scope of paragraph 3 of section 65(6), the Ministry must establish that: the records were collected, prepared, maintained or used by the Ministry or on its behalf; and this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the Ministry has an interest. I find that each of these records, or parts of records, was collected, prepared, maintained or used by the Ministry in relation to meetings, consultations, discussions or communications, both within the Ministry and involving the affected party. In addition, I find that each of these documents contain information about staffing levels within the Ministry and anticipated reduction in those levels. In my view, this information addresses the collective relationship between the Ministry and its employees. I find, therefore, that their subject matter qualifies as a "labour relations" matter for the purposes of section 65(6)3 (Orders P-1223 and P-1242). The only remaining issue with respect to these records is whether or not the matters addressed in them are ones in which the Ministry "has an interest". In Order P-1242, Assistant Commissioner Tom Mitchinson reviewed a number of legal sources regarding the meaning of the term "has an interest", as well as several court decisions which considered its application in the context of civil proceedings. He concluded as follows: Taken together, these [previously discussed] authorities support the position that an "interest" is more than mere curiosity or concern. An "interest" must be a legal interest in the sense that the matter in which the Ministry has an interest must have the capacity to affect the Ministry's legal rights or obligations. I agree with this interpretation and adopt it for the purposes of this appeal. The Ministry states that its legal interest in the labour relations and employment-related matters contained in these records arises from: 1. its statutory obligations, including the Public Service Act (the PSA ) and the Employment Standards Act (the ESA ); 2. existing collective bargaining agreements, including the Central Collective Agreement between the Ontario Public Service Employees Union and the Government of Ontario (the Central Agreement); 3. general common law principles regarding employer/employee relations, including the termination of employment of public servants. Having reviewed the record and the Ministry's submissions, I am satisfied that the meetings and discussions have the potential to affect the Ministry's legal rights and/or obligations, and for this reason, I find that they are matters "in which the institution has an interest". The information contained in these records deals with potential staff reductions, which may result from the implementation of the Agreement that constitutes Record 1 with the affected party. I find that these are matters having the capacity to affect the Ministry's legal rights or obligations, pursuant to the Central Collective Agreement or the PSA and ESA (Order P-1359). In summary, I find that the undisclosed portions of Pages 5 and 20 of Schedule B of Record 1, Page 3 of Record 10 and Record 41 in its entirety were collected, prepared, maintained or used by the Ministry. I further find that such collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications about labour relations matters in which the Ministry has an interest. Consequently, all of the requirements of section 65(6)3 have been established by the Ministry with respect to this information. None of the exceptions contained in section 65(7) apply. Therefore, I find that these records are excluded from the scope of the Act . THIRD PARTY INFORMATION The Ministry and the affected party submit that a portion of paragraph 2.6 on Page 3 and paragraphs 6.5 and 6.8 on Pages 6 and 7 of Schedule B of Record 1, as well as Records 11, 16, 17, 19, 36, 37 and 49 in their entirety, are exempt from disclosure under sections 17(1)(a) and (c) of the Act . Sections 17(1)(a) and (c) state: A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, where the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiati
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Legislation
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FIPPA
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17(1)(a)
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17(1)(c)
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18(1)(f)
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18(1)(g)
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65(6)3
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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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Jan 13, 1998
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Type
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Order
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