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Document
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P-1242
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File #
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P-9600142
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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 appellant is an employee of the Ministry of Community and Social Services (the Ministry). He made a complaint of harassment by his supervisor (the supervisor) under the Workplace Discrimination and Harassment Prevention Program (WDHP). An employee of Management Board of Cabinet (MBS) conducted a WDHP investigation and submitted a final report to the Ministry. As part of the WDHP process, the appellant received a copy of his own statements and the final report. However, he wanted to receive more information, and submitted a request under the Freedom of Information and Protection of Privacy Act (the Act ) for specific records from the investigation file. The appellant submitted his request to MBS. MBS considered the Ministry to have a greater interest in the records, and transferred the request to the Ministry pursuant to section 25(2) of the Act . The Ministry denied access to all responsive records, 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. In his letter of appeal, the appellant also objected to the transfer of his request based on an alleged conflict of interest at the Ministry. However, the appellant subsequently agreed that this issue was appropriately deferred until I determine if I have jurisdiction to consider his appeal. 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. RECORDS: The records at issue in this appeal are: 1. The supervisor's signed statements and other documents that were submitted to the investigator, including records of meetings, correspondence, interoffice memoranda, respondent's comments on the WDHP investigation report, memoranda and charts pertaining to salary expenditures. 2. Signed witness statements and other notes of witness comments in the WDHP investigation. 3. A letter written by the Ministry's Assistant Deputy Minister of Corporate Services to the Assistant Deputy Minister in charge of Employment Equity at the MBS, relating to the WDHP investigation. 4. An interoffice memorandum from the Ministry's WDHP Co-ordinator to the Ministry's Manager of Contingency Planning, relating to the WDHP investigation. DISCUSSION: The only issue in this appeal is whether the records fall within the scope of sections 65(6) and (7) of the Act . These provisions read: (6) Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following: 1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution. 2. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding. 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. (7) This Act applies to the following records: 1. An agreement between an institution and a trade union. 2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment- related matters. 3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees. 4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment. The interpretation of sections 65(6) and (7) is a preliminary issue which goes to the Commissioner's jurisdiction to continue an inquiry. Section 65(6) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in section 65(7) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner's jurisdiction. The appellant submits that because the Ministry has made a decision under the WDHP which has an impact on him, it should not be allowed to deny him access to his personal information that was utilized in reaching its conclusions. The appellant states that the amendments to the Act reflected in section 65(6) were intended to apply to the Ministry's information not to an individual's own personal information. The wording of section 65(6) does not distinguish records on the basis of whether they contain personal information. In fact, the types of records described in both sections 65(6) and (7) would by their very nature frequently contain personal information. In my view, the interpretation put forward by the appellant is not supported by the wording of section 65(6). In its decision letter, the Ministry claims that all three paragraphs of section 65(6) apply to exclude the records from the Act . I will first consider whether the requirements of paragraph 1 are present in the circumstances of this appeal. Section 65(6)1 In Order P-1223, I stated that in order for a record to fall within the scope of paragraph 1 of section 65(6) , the Ministry must establish that: 1. the record was collected, prepared, maintained or used by the Ministry or on its behalf; and 2. this collection, preparation, maintenance or usage was in relation to proceedings or anticipated proceedings before a court, tribunal or other entity; and 3. these proceedings or anticipated proceedings relate to labour relations or to the employment of a person by the Ministry. The appellant in Order P-1223 was a member of the Ontario Public Services Employees Union (OPSEU) who had filed a grievance under the procedures contained in Article 27 of the collective agreement between the gove
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Legislation
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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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Aug 02, 1996
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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