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P-969

Document		P-969


File #		P-9500030


Institution/HIC		Ministry of Community and Social Services


Summary		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 ) for access to the contents of the eligibility review officer's (ERO) file, the parental support worker's file, the Ministry's corporate file and any other file pertaining to the requester. The Ministry granted partial access to the responsive records. The requester appealed the decision to deny access to the remaining records. The records requested were generated as part of an investigation conducted by the Ministry to determine whether the appellant was entitled to continue to receive social assistance as a single person under the Family Benefits Act (the FBA ). The records to which the Ministry denied access consist of the ERO report, handwritten and typed letters, facsimile sheets, client history sheets, consumer enquiries, driver's licence history search and statements of fact. The records are listed in Appendix "A" to this order and all have been withheld in their entirety with the exception of Records 1-4 which were withheld in part. The Ministry relies on the following exemptions to deny access to the records: law enforcement/discretion to refuse requester's own information - sections 14(1) and 49(a) invasion of privacy - section 49(b) A Notice of Inquiry was provided to the appellant and the Ministry. Representations were received from both parties. PRELIMINARY MATTER In its representations, the Ministry has raised the possible application of sections 14(1)(g) and 14(2)(a) to some of the records. It has been determined in previous orders that the Commissioner has the power to control the process by which inquiry is undertaken (Orders P-345 and P-537). This includes the authority to set time limits for the receipt of representations and to limit the time during which an institution can raise discretionary exemptions not claimed in its decision letter. Upon receipt of the letter of appeal, the Ministry was notified, by way of a Confirmation of Appeal notice, that it had 35 days from the date of the notice to raise any additional discretionary exemptions not claimed in the decision letter. In Order P-658, Inquiry Officer Anita Fineberg concluded that in cases where a discretionary exemption is claimed late in the appeals process, a decision-maker has the authority to decline to consider the discretionary exemption. I agree with Inquiry Officer Fineberg's reasoning and adopt it for the purposes of this appeal. The Ministry has provided no explanation for the delay in raising the additional discretionary exemptions. In my view, a departure from the 35-day timeframe is not justified in the circumstances of this appeal. Therefore, I will not consider the application of sections 14(1)(g) and 14(2)(a) in this order. DISCUSSION: PERSONAL INFORMATION Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual. I have carefully reviewed the information in all the records. I find that Records 25 and 26 contain information which relates solely to the appellant and constitutes her personal information. I find that the remaining records (Records 1-24) contain personal information which relates to the appellant, the alleged co-resident and other identifiable individuals. In the circumstances of this case, the alleged co-resident has not consented to the disclosure of his personal information to the appellant. Some of the records contain other references to individuals, which appear by virtue of their employment functions or duties and do not constitute the personal information of these individuals. DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION 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. The Ministry submits that sections 14(1)(a), (b) and (c) apply to Records 5-26. Sections 14(1)(a), (b) and (c) state: A head may refuse to disclose a record where the disclosure could reasonably be expected to, (a) interfere with a law enforcement matter; (b) interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result; (c) reveal investigative techniques and procedures currently in use or likely to be used in law enforcement. In order for a record to qualify for exemption under these sections, the investigation which generated the records must first satisfy the definition of the term "law enforcement" as found in section 2(1) of the Act . This definition reads as follows: "law enforcement" means, (a) policing, (b) investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and (c) the conduct of proceedings referred to in clause (b). Previous orders of the Commissioner have found that investigations conducted under section 19 of the FBA qualify as "law enforcement matters" for the purpose of section 2(1) of the Act (Order 139). With respect to sections 14(1)(a) and (b), the Ministry states that the information in the records relates to an investigation into the appellant's continuing eligibility for welfare benefits. The Ministry submits that the matter is ongoing as criminal charges may be laid and a hearing is scheduled before the Social Assistance Review Board (SARB). It is the Ministry's position that the investigation and law enforcement matter is ongoing until it is disposed of by SARB and/or the courts. The Ministry points out that alternative avenues of access to the records are available to the appellant, at the appropriate time, through the hearings process before SARB and the discovery process in the


Legislation		FIPPA 14(1)(a) 14(1)(b) 14(1)(c) 49(a)


Subject Index		Family Benefits Act


Signed by		Mumtaz Jiwan


Published		Jul 31, 1995


Type		Order


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