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Summary
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Order are as follows: 1. On November 20, 1987, the appellant made a request to the Ministry of Consumer and Commercial Relations (the "institution") for access to any 1986-87 investigation reports related to funeral firms. 2. On February 4, 1988, the institution responded that such reports would be records as described in subsection 14(2)(a) of the Freedom of Information and Protection of Privacy Act, 1987 , and under subsection 14(3) of the Act the existence of such records would neither be confirmed nor denied. 3. On February 14, 1988, the requester appealed the institution's decision and I gave notice of the appeal to the institution. 4. An attempt was made by an Appeals Officer to settle this appeal, however, settlement was not effected. 5. By letter dated May 11, 1988, I sent notice to the institution and the appellant that I was conducting an inquiry to review the decision of the head. 6. Written representations were received from both parties. 7. At my request, the institution notified the appellant that in its written representation it had raised the application of section 14(1) of the Business Practices Act , R.S.O. 1980, c.55 as a "confidentiality provision", which it maintained prevailed over the Freedom of Information and Protection of Privacy Act, 1987 pursuant to section 67 of that Act . The appellant made representations to me on this additional issue. 8. Although the institution initially relied on subsection 14(3) of the Act and refused to confirm or deny the existence of the records requested, as the appeal progressed, the question of the "confidentiality provision" became a preliminary issue and its resolution was sufficient to dispose of the appeal. The relevant issues for consideration in this appeal are as follows: A. Whether it is permissible for the institution to raise subsection 14(1) of the Business Practices Act , R.S.O. 1980, c.55 for the first time, in its representations to the Commissioner at this stage of the appeal process. B. Whether the legislative provision relied on by the institution acts as a "confidentiality provision" thereby barring the application of the Freedom of Information and Protection of Privacy Act, 1987 . C. If the answer to Issue B is in the affirmative, whether the records in question, if they exist, fall within the scope of the "confidentiality provision" relied on. ISSUE A: Whether it is permissible for the institution to raise subsection 14(1) of the Business Practices Act , for the first time, in its representations to the Commissioner at this stage of the appeal process. I expect that the introduction of new or different grounds for refusing access to records at the appeal stage will be the exception rather than the rule. Pursuant to subsection 29(1) of the Act the institution has a statutory obligation, when refusing to provide access, to identify the specific provision of the Act under which access is refused and the reasons the provision applies to the record in question. Clearly, it would be preferable if the parties to an appeal would raise all arguments they intend to rely upon at the first possible opportunity. When a new issue is introduced, at the appeal stage, it slows the process down. However, I understand and accept that the parties may not always be aware, at the first instance, of all arguments they will eventually want to make. When a new issue, that is or may be relevant, is introduced by either party for the first time at the appeal stage, it is incumbent upon me as Commissioner to ensure that other interested parties are made aware of this new issue and are given an opportunity to respond to it. In this case, the appellant was advised of the new issue raised by the institution, given an opportunity to respond, and did so. Accordingly, it is my view that, in this case, it is permissible for the institution to raise this issue of the application of section 14(1) of the Business Practices Act , at the appeal stage, despite its untimeliness. ISSUE B: Whether the legislative provision relied on by the institution acts as a "confidentiality provision" thereby barring the application of the Freedom of Information and Protection of Privacy Act, 1987 . Reliance on the "confidentiality provisions" of other statutes was an issue that I dealt with in my Order in Appeal No. 880016. I have applied the same reasoning in this appeal. Before considering the specifics of this appeal, I think it is important for me to make some general comments regarding the status of "confidentiality provisions". As Information and Privacy Commissioner, I am responsible for ensuring that the rights and obligations of the people of Ontario and government officials are respected and complied with, as they relate to this Act . In order to fulfill this obligation it is sometimes necessary for me to balance the two interests of access and privacy which, by their very nature, are sometimes in conflict. However, where, as in this case, an institution relies upon a valid "confidentiality provision" that is contained in another act, to remove itself from the ambit of the Freedom of Information and Protection of Privacy Act, 1987 , I do not engage in such a balancing act. My responsibility in these cases is still heavy, because as I stated in Order No. 880016, I do not intend to accept the institutions assertion that a clause is a "confidentiality provision" on the basis of the institution's claim alone. I intend to subject each such claim to my independent analysis and scrutiny. As I said in Order No. 880016: "Wh
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