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PO-1888

Document		PO-1888


File #		PA_000288_1


Institution/HIC		Ministry of Education


Summary		NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ) from a decision of the Ministry of Education (the Ministry). The appellant sought access to "any studies, discussion papers, reports or legal opinions on the constitutionality of implementing a school uniform policy in Ontario schools". The Ministry located seven records responsive to the request and granted full access to one record and partial access to six records. The Ministry denied access to portions of Records 1 to 4 relying on the exemption in section 19 [solicitor-client privilege] of the Act , and denied access to portions of Records 5 and 6 on the basis of the exemption in section 13 [advice to government]. The appellant appealed the Ministry's decision. Prior to the release of the Report of Mediator, the Ministry issued a second decision letter claiming the solicitor-client privilege exemption under section 19 for Records 5 and 6. In response, the appellant requested that the issue of the late raising of a new discretionary exemption be included in the appeal. At issue are the section 19 exemption [solicitor-client privilege] for Records 1-6, the section 13 exemption [advice to government] for Records 5 and 6, and the late raising of a new discretionary exemption. I sent a Notice of Inquiry initially to the Ministry and received representations in response. I then sent the Notice, together with the Ministry's representations in their entirety, to the appellant who also provided representations. RECORDS: The Records at issue consist of five internal Ministry memoranda (Records 1 to 5), and one Ministry position paper (Record 6). DISCUSSION: Background According to an affidavit sworn by an individual who was an Education Officer with the Legislation Branch in the Ministry when the six records at issue were prepared, the records were developed in response to an application for judicial review of a local school board's policy on student attire. At the time when the records at issue were developed, the Legislation Branch consisted of a Legal Services Unit and a group of Education Officers. The Legal Services Unit, whose members were lawyers, and the Education Officers, who were not lawyers, worked collaboratively as a team preparing policy papers and correspondence. It was the responsibility of the Director of the Legal Services Unit to review and sign off on material prepared by the Branch that involved legal issues. PRELIMINARY MATTER: LATE RAISING OF A NEW DISCRETIONARY EXEMPTION On September 28, 2000, the Commissioner's office provided the Ministry with a Confirmation of Appeal which indicated that an appeal from the Ministry's decision had been received. This Confirmation also indicated that, based on a policy adopted by the Commissioner's office, the Ministry would have 35 days from the date of the confirmation (that is, until November 3, 2000) to raise any new discretionary exemptions not originally claimed in its decision letter. No additional exemptions were raised during this period. As I indicated above, the Ministry issued a second decision letter to the appellant on November 9, 2000, six days after the November 3 rd deadline, claiming the solicitor-client privilege exemption under section 19 for Records 5 and 6. Previous orders issued by the Commissioner's office have held that the Commissioner (or her delegate) has the power to control the manner in which the inquiry process is undertaken. This includes the authority to set time limits for the receipt of representations and to limit the time frame during which an institution can raise new discretionary exemptions not originally cited in its decision letter. In Order P-658, Inquiry Officer Anita Fineberg explained that the prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeals process. She indicated that, unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it will not be possible to effectively seek a mediated settlement of the appeal in accordance with section 51 of the Act . The objective of the policy enacted by the Commissioner's office is to provide government organizations with a window of opportunity to raise new discretionary exemptions. However, it must not be at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant prejudiced. The Ministry acknowledges that it is raising the application of this exemption to these records late in the process. The Ministry claims that it was only after this Office asked the Ministry to review its position on the section 13 exemptions for Records 5 and 6 that the Ministry recognized that the section 19 exemption should also have been extended to these two records. On the advice of the mediator, the Ministry sent a second decision letter to the appellant setting out its intention to extend its reliance on the section 19 exemption to Records 5 and 6. In its representations, the Ministry states: ...the six-day delay was not extensive. Additionally, it is relevant to note that the additional ground of exemption for records 5 and 6 did not constitute a new ground since the section 19 exemption had already been claimed for records 1-4. This is not a case, therefore, where the appellant was faced with the challenge of having to become familiar with an entirely new ground of exemption. In the circumstances of this appeal, I am prepared to accept the Ministry's submission on this point. The appellant was given an opportunity to address the exemption claim, no delay resulted from the additional claim, and the delay was relatively brief. It is my view that the appellant was not prejudiced by the late raising of the section 19 exemption to Records 5 and 6. SOLICITOR-CLIENT PRIVILEGE The Ministry claims that Records 1 to 6 are exempt from disclosure under section 19 of the Act . Section 19 provides that: A head may refuse to disclose a record tha


Legislation		FIPPA Section 19


Subject Index		communication privilege


Signed by		Dawn Maruno


Published		Mar 28, 2001


Type		Order


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