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Document
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PO-1652
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File #
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PA-980182-1
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Institution/HIC
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Ministry of Finance
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Summary
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NATURE OF THE APPEAL: The Ministry of Finance (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for all records created since June 1, 1997 showing a decision or direction by the Minister, the Deputy Minister or an Assistant Deputy Minister regarding Pay Proxy Equity. The request included, but was not limited to, any records related to either or both of the following: (i) the announcement made by the Minister of Finance on December 15, 1997 regarding $140 million dollars for retroactive Proxy Pay Equity adjustments and $500 million for ongoing Pay Equity adjustments; (ii) any communications between the Ministry of Finance and the Ministry of Health regarding Pay Equity. The Ministry identified 40 responsive records. It granted access to three records, and denied access to the remaining 37 records in their entirety, claiming exemptions under sections 12(1)(b), (c), (d) and (e), 13(1) and 18(1)(g) of the Act . The requester (now the appellant) appealed this decision. During mediation, the appellant was provided with a copy of the Ministry's index which describes the records and sets out the exemptions claimed for each. This office sent a Notice of Inquiry to the Ministry and the appellant. Representations were received from the Ministry only. I will use the Ministry's numbering scheme in referring to the records with one minor change. Record 40 is referred to in the Ministry's index as a single record, but the Ministry's representations consider it as eight separate records (Records 40A through 40H). I will also deal with it as eight records. The Ministry states in its representations that it has decided to disclose Records 4, 8-18, 22-23, 36-37 and 39 in their entirety, as well as portions of Records 1, 2, 19, 20, 21 and 34. Accordingly, these records or partial records are no longer at issue in this appeal. It is unclear whether these records have actually been disclosed to the appellant, so I will include a provision in this order requiring disclosure. The Ministry's representations make no reference to the application of sections 12(1)(c), (d) and (e), and section18(1)(g). I assume the Ministry is no longer relying on these exemptions. Because section 12(1) is a mandatory exemption, I will take paragraphs (c), (d) and (e) of this exemption into account in my discussion of section 12(1) which follows. PRELIMINARY ISSUE: LATE RAISING OF A DISCRETIONARY EXEMPTION On July 14, 1998, the Commissioner's office provided the Ministry with a Confirmation of Appeal, indicating that an appeal from the Ministry's decision had been received. The Confirmation also stated that, based on a policy adopted by the Commissioner's office, the Ministry had 35 days from the date of the Confirmation (i.e. until August19, 1998) to raise any new discretionary exemptions not originally claimed in its decision letter. The policy referred to in the Confirmation was originally brought to the attention of the Ministry in the form of a publication entitled "IPC Practices: Raising Discretionary Exemptions During an Appeal", distributed by the Commissioner's office to all provincial and municipal institutions in January 1993. The objective of the policy is to provide government institutions with a window of opportunity to raise new discretionary exemptions, but not at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant in the disclosure of information is prejudiced. The Ministry did not raise any additional exemptions during this 35-day period. In the Ministry's representations dated December 18, 1998, it raised the section 19 exemption claim for Records 40F and 40H. The index of records provided by the Ministry to the appellant and this office did not include section 19 among the exemption claims for Record 40, or any other records for that matter. The Ministry's representations provided no explanation as to why it did not claim this exemption during the permitted 35-day period, or why I should allow this new exemption claim at this late stage of the appeal. Previous orders issued by this 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 establish 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, subject, of course, to a consideration of the particular circumstances of each case. This approach was upheld by the Ontario Court (General Division) Divisional Court in the judicial review of Order P-883 (Ontario (Ministry of Consumer and Commercial Relations) v. Fineberg (21 December 1995), Toronto Doc. 220/89, (leave to appeal refused [1996] O.J. No. 1838 (C.A.)). In determining whether to allow the Ministry to claim this discretionary exemption at this time, I must balance the maintenance of the integrity of the appeals process against any evidence of extenuating circumstances advanced by the Ministry (Order P-658). I must also balance the relative prejudice to the Ministry and to the appellant in the outcome of my decision. In the absence of any representations from the Ministry on this issue, and in light of the obvious inherent prejudice which would accrue to the appellant in delaying the adjudication of this appeal if the Ministry is permitted to raise a new discretionary exemption claim at this late stage, I find that this is not an appropriate case to allow the Ministry to raise its new section 19 exemption. In my view, the Ministry had ample time to review the records and consult with counsel to confirm the discretionary exemptions it wanted to rely on as the appeal proceeded through the mediation stage of the process. The Ministry's representations, do not address the application of any of the exemptions originally claimed for Record 40H. Two of the exemptions were discretionary (sections 13(1) and 18(1)(g)). This record on its face does not meet the requirements of either of these exemptions, and, in the absence of any evidence from the Ministry on why these exemptions should apply, I find that they do not. Because section 12(1) is a mandatory exemption, I will consider its possible application to
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jan 20, 1999
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Type
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Order
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