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Document
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P-30
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File #
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Appeal 880072
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Institution/HIC
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Ministry of Financial Institutions
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Summary
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Order are as follows: On July 27, 1987, the Ministry of Financial Institutions (the "institution") received a request for access to a "copy of the statement made by the Merrill Lynch representatives" filed with the Ontario Securities Commission (the "O.S.C.") by the Ontario District Council of the Investment Dealers Association of Canada (the "I.D.A"). This statement was made as part of an investigation conducted by the I.D.A. into a complaint made by the requester to the O.S.C. regarding the activities of an investment dealer. By letter dated March 21, 1988, the Freedom of Information Coordinator for the institution informed the requester that the statement would not be released because it had been made by the I.D.A., an organization which, in the view of the institution, qualified as an "agency as described in clause 14(2)(a) (of the Freedom of Information and Protection of Privacy Act, 1987 )". The head's position was that disclosure of the report would result in a number of serious harms, some of which they outlined as follows: "1. Disclosure would jeopardize the sharing of law enforcement information between the Ontario Securities Commission and the I.D.A. and other securities regulatory and enforcement authorities; 2. Disclosure of such reports would interfere with the gathering of intelligence information on registered dealers and their sales persons and would hamper investigations generally; 3. Because persons whose conduct is investigated do not have the protections available to litigants in civil disputes, it would be unfair to the investigated person if investigative reports prepared in a disciplinary context were released to potential litigants in civil actions. Indeed, the FOI Act contains a specific provision allowing for refusal to disclose a record 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 (clause l4(2)(c)); 4. The report contains "personal information", the release of which would constitute an unjustified invasion of the personal privacy of [name deleted] and the investigator." The requester appealed the head's decision by letter to me dated April 4, 1988, and I gave notice of the appeal to the institution. The record was examined by an Appeals Officer from my staff, and between April 4, 1988 and June 17, 1988 efforts were made by the Appeals Officer and the parties to settle the case. A settlement was not effected as both parties maintained their respective positions. On July 25, 1988 I issued notices of inquiry to the appellant and the institution, enclosing a copy of the Appeals Officer's Report and asking for their representations. I received written representations from the institution and the appellant and have considered them in making my Order. It should be noted, at the outset, that the purposes of the Act as defined in subsections 1 (a) and (b) are: (a) to provide a right of access to information under the control of institutions in accordance with the principles that information should be available to the public and necessary exemptions from the right of access should be limited and specific, and, (b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information. Further, section 53 of the Act provides that the burden of proof that the record falls within one of the specified exemptions in this Act lies upon the head. The issues arising in this appeal are as follows: A. Whether the Investment Dealers Association is "an agency which has the function of enforcing and regulating compliance with a law" as defined by subsection 14(2)(a) of the Freedom of Information and Protection of Privacy Act, 1987 ; B. If the answer to Issue A is in the affirmative, whether the head properly exercised his discretion with respect to the release of the report for which the exemption is claimed; and C. If the answer to Issue B is in the affirmative, whether the severability requirements of subsection 10(2) apply to the record in question. ISSUE A: Whether the Investment Dealers Association is "an agency which has the function of enforcing and regulating compliance with a law" as defined by subsection 14(2)(a) of the Freedom of Information and Protection of Privacy Act, 1987 . Subsection 14(2)(a) of the Act reads as follows: (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; The O.S.C. is a government agency that administers Ontario's Securities Act , R.S.O. 1980, c.466 as amended, together with several other pieces of legislation dealing with securities trading and registration. The O.S.C. also investigates consumer complaints relating to stockbrokers, investment dealers and their employees. The O.S.C. has informally delegated its complaint investigation function with respect to investment dealers to the I.D.A. The I.D.A. is a self-regulating organization which oversees the activities of its member investment dealers and their employees. Section 86 of Ontario Regulation 910 made pursuant to the Securities Act , provides that all investment dealers must be members of the I.D.A. as a pre-condition of registration with the O.S.C. The O.S.C. has informally delegated authority to review and approve all such applications for registration to the I.D.A. In its representations, the institution explains that "...all investigation reports and disciplinary decisions of the I.D.A. and T.S.E. are filed with the O.S.C. so that the O.S.C. can review them to ensure that the matters were properly dealt with even though there is no statutory requirement that this be done". It is for this
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Legislation
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FIPPA
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10(2)
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14(2)(a)
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57(3)
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Subject Index
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Signed by
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Sidney Linden
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Published
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Dec 21, 1988
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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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