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P-1313

Document		P-1313


File #		P_9600256


Institution/HIC		Ministry of Finance


Summary		NATURE OF THE APPEAL: The appellant made a request under the Freedom of Information andProtection of Privacy Act (the Act ) to the Ministry of Finance (theMinistry). The request was for access to all documentation regarding theappellant's company's registration with the Small Business DevelopmentCorporation. The Ministry granted the appellant access to 658 pages of records. Accesswas denied to 40 pages of records under the following exemptions: law enforcement - sections 14(1)(a), (b), (c) and (d) third party information - section 17 personal information - section 21 The appellant appealed the Ministry's decision to deny access. Duringmediation of the appeal, the Ministry issued a new decision letter in which itwithdrew section 17 as an exemption claim and added sections 14(2)(a) and (c) asadditional exemptions. The Appeals Officer was of the view that the records maycontain the personal information of the appellant and other individuals and theapplication of sections 49(a) and (b) was added as issues in this appeal. Notice that an inquiry was being conducted to review the Ministry's decision wassent to the appellant and the Ministry. Representations were received from bothparties. PRELIMINARY ISSUE: THE RAISING OF ADDITIONAL DISCRETIONARY EXEMPTIONS LATE IN THEAPPEALS PROCESS Upon receipt of the appeal, this office provided the Ministry with aConfirmation of Appeal notice. This notice indicated that the Ministry had 35days from the date of this notice (an expiry date was provided) to raise anyadditional discretionary exemptions not claimed in the decision letter. Onlysections 14(2)(a) and (c) were raised during this period. Subsequently, in its representations, the Ministry raised the application ofthe discretionary exemption provided by section 18(1)(d) of the Act . Bythis time the expiry date provided in the Confirmation of Appeal had passed by50 days. It has been determined in previous orders that the Commissioner has thepower to control the process by which the inquiry is undertaken (Orders P-345and P-537). This includes the authority to set time limits for the receipt ofrepresentations and to limit the time during which an institution can raise newdiscretionary exemptions not claimed in its original decision letter. In Order P-658, Inquiry Officer Anita Fineberg concluded that in cases wherea discretionary exemption(s) is claimed late in the appeals process, a decisionmaker has the authority to decline to consider the discretionary exemption(s). I agree with Inquiry Officer Fineberg's reasoning and adopt it for the purposesof this appeal. The Ministry has provided no explanation for the delay in raising theadditional discretionary exemption. In my view, a departure from the 35-daytime frame is not justified in the circumstances of this appeal and I will notconsider the application of section 18(1)(d) in this order. DISCUSSION: LAW ENFORCEMENT The Ministry claims that sections 14(1)(a), (b), (c), (d) and 14(2)(a) applyto the records. These sections read: (1)A head may refuse to disclose a record where the disclosure couldreasonably be expected to, (a)interfere with a law enforcement matter; (b)interfere with an investigation undertaken with a view to a lawenforcement proceeding or from which a law enforcement proceeding is likely toresult; (c)reveal investigative techniques and procedures currently in use orlikely to be used in law enforcement; (d)disclose the identity of a confidential source of information inrespect of a law enforcement matter, or disclose information furnished only bythe confidential source; (2)A head may refuse to disclose a record, (a)that is a report prepared in the course of law enforcement,inspections or investigations by an agency which has the function of enforcingand regulating compliance with a law. Section 2(1) of the Act defines "law enforcement" as: "law enforcement" means, (a)policing, (b)investigations or inspections that lead or could lead to proceedingsin a court or tribunal if a penalty or sanction could be imposed in thoseproceedings, and (c)the conduct of proceedings referred to in clause (b). The Ministry states that the records at issue were originally gathered andcreated in the course of an investigation into allegations that the SmallBusiness Development Corporation Act (the SBDCA ) had been contravened. The SBDCA provides that everyperson or corporation is subject to a penalty if found guilty of making orassisting in making a false or misleading statement in any document required byor for the purposes of the SBDCA . In my opinion, the investigativeprocess under the SBDCA satisfies the requirements of the definition of "lawenforcement" under section 2(1) of the Act . Investigations thatare conducted under the authority of the SBDCA lead or could lead toproceedings in a court or tribunal where a penalty or sanction could be imposed. The Ministry states, however, that this investigation has now ceased. The purpose of sections 14(1)(a) and (b) is to provide the Ministry with thediscretion to preclude access to records in circumstances where disclosure wouldinterfere with an ongoing law enforcement matter orinvestigation. Sections 14(1)(c), 14(1)(d) and 14(2)(a) are not dependent onwhether the law enforcement activity is ongoing. Sections 14(1)(a) and (b) The matter or investigation referred to in the Ministry's representations asbeing ongoing is not being conducted pursuant to the SBDCA , and is notone which falls within the meaning of "law enforcement". Accordingly,sections 14(1)(a) and (b) do not apply. Section 14(1)(c) In Order 170, former Inquiry Officer John McCamus found: In order to constitute an "investigative technique or procedure"it must be the case that disclosure of the technique or procedure to the publicwould hinder or compromise its effective utilization. The fact that aparticular technique or procedure is generally known to the public wouldnormally lead to the conclusion that such compromise would not be effected bydisclosure and accordingly that the technique or procedure in question is notwithin the scope of section 14(1)(c). The Ministry claims that section 14(1)(c) applies to the last four numbereditems on Record 3. The Ministry submits that these items "indicatealternative procedures in an ... investigation at this stage." These itemsare phrased in the form of questions, and have more to do with options availableto the Ministry dependent on its authority than with any investig


Legislation		FIPPA 14(1)(c) 14(1)(d) 14(2)(a) 21(3)(b) 49(a)


Subject Index		Small Business Development Corporations Act


Signed by		Holly Big Canoe


Published		Dec 06, 1996


Type		Order


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