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Document
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P-542
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File #
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P-9300114
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Institution/HIC
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Ministry of Finance
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Summary
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ORDER BACKGROUND: The Ministry of Financial Institutions, (now the Ministry of Finance) (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to records held by the Ministry or the Pension Commission of Ontario (PCO), an agency of the Ministry, relating to investigations of Standard Trustco Limited Designated Employees' Retirement Plan (the Plan). The Ministry refused to confirm or deny the existence of such records pursuant to section 14(3) of the Act . The requester appealed the decision. Mediation of the appeal was not successful, and notice that an inquiry was being conducted to review the Ministry's decision was sent to the appellant and the Ministry. Written representations were received from both parties. In its representations, the Ministry states that if records of the nature requested existed, access to them would be denied pursuant to sections 14(1)(a), (b), (c), (d) and (g), and 14(2)(a) and (c) of the Act . The Ministry also indicates that if the requested records existed and if they contained personal information that relates to the appellant, section 49(a) would apply to withhold the records. ISSUES: The issues arising in this appeal are as follows: A. Whether records of the nature requested, if they exist, would qualify for exemption under sections 14(1) and (2) of the Act . B. Whether section 14(3) of the Act applies in the circumstances of this appeal. C. Whether section 49(a) of the Act would apply to the records of the nature requested, if they exist. PRELIMINARY MATTER: In an appeal from a decision to refuse to confirm or deny the existence of a record, the correctness of the decision is an issue to be determined on appeal (Order M-46). In this appeal, I have reached the conclusion that section 14(3) of the Act is not applicable and I feel that it would be useful to state this conclusion at the beginning, so that I might provide a fuller explanation of the reasons for my decision. Accordingly, I confirm that records exist which are responsive to the appellant's request. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether records of the nature requested, if they exist, would qualify for exemption under sections 14(1) and (2) of the Act . The records which have been identified by the Ministry as being responsive to the request are: 1. A memorandum from an investigator in the Ministry's Investigations Branch to the Deputy Director of the Branch; 2. A memorandum from a Plan and Investment Auditor of the PCO to Senior Legal Counsel of the PCO; and 3. Handwritten notes of Legal Counsel of the PCO. The Ministry submits that sections 14(1)(a), (b), (c), (d) and (g), and 14(2)(a) and (c) of the Act apply to the records. These sections state: (1) 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; (d) disclose the identity of a confidential source of information in respect of a law enforcement matter, or disclose information furnished only by the confidential source; (g) interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons; (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 enforcing and regulating compliance with a law; (c) that is a law enforcement record where the disclosure could reasonably be expected to expose the author of the record or any person who has been quoted or paraphrased in the record to civil liability; In order for the records to be considered for exemption under these sections, the matter which generated the records must satisfy the definition of the term "law enforcement" as found in section 2(1) of the Act which reads: "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); The Ministry submits that the records at issue relate to an investigation which is being conducted by the PCO pursuant to section 106 of the Pension Benefits Act ( PBA ). The Ministry submits that this section gives the Superintendent of Pensions or any person designated by the Superintendent broad investigatory and enforcement powers in relation to the administration of the PBA and the regulations under the PBA . The Ministry advises that the records at issue were prepared by persons designated by the Superintendent. Breaches of the PBA , its regulations or orders made under the PBA are offenses under section 109 of the PBA , and thus could lead to proceedings in a court where penalties could be imposed under section 110 of the PBA . Having reviewed the contents of the records, the representations of the Ministry and the relevant provisions of the PBA , I am satisfied that the matter to which the records at issue relate is a law enforcement matter, as the term is defined in section 2 of the Act . Sections 14(1)(a) and (b) The purpose of sections 14(1)(a) and (b) is to provide the Ministry with the discretion to preclude access to records in circumstances where disclosure of the records could reasonably be expected to interfere with an ongoing law enforcement matter or investigation. The Ministry bears the onus of providing sufficient evidence to substantiate the reasonableness of the expected harm(s) and in my view, the Ministry discharges this onus by establishing a clear and direct linkage between the disclosure of the specific information and the harm alleged (Orders 188, P-534). The Ministry's representations regarding the application of sections 14(1)(a) and (
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Legislation
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FIPPA
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14(1)
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14(1)(a)
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14(1)(b)
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14(2)
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14(3)
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49(a)
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Subject Index
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Signed by
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Asfaw Seife
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Published
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Sep 28, 1993
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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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