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Document
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P-148
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File #
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Appeal 890311
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Institution/HIC
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Ministry of Government Services February 19, 1990 VIA PRIORITY POST Appellant Dear Appellant: Re:
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Summary
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Order 148 Appeal Number 890311 Ministry of Government Services This letter constitutes my Order in your appeal of the decision by the Ministry of Government Services (the "institution"), to refuse to confirm or deny the existence of records requested under the Freedom of Information and Protection of Privacy Act, 1987 (the " Act "). On August 4, 1989, you requested access to the following records: All correspondence relating to me received by the Minister, Deputy Minister and F.O.I. Coord. and sent from the Ministry of Health and Management Board of Cabinet as well as internal memorandums (sic) for the Period of January 1st, 1989 to August 1st, 1989 (seven months). On September 13, 1989, the Deputy Minister of the institution responded to your request as follows: Access cannot be provided to records of any correspondence relating to you received by the Minister, Deputy Minister and Freedom of Information Co-ordinator sent from Management Board of Cabinet because the records do not exist. Neither are there any internal memoranda relating to you for the period of January 1, 1989 to August 1, 1989. ... The existence of correspondence sent by the Ministry of Health cannot be confirmed or denied in accordance with subsection 14(3) of the Act . On September 26, 1989, you wrote to me appealing the institution's decision to refuse to confirm or deny the existence of correspondence sent by the Ministry of Health to the institution. You did not appeal the head's position that records of any correspondence relating to you sent from the Management Board of Cabinet to the institution do not exist. I sent Notices of Appeal to you and to the institution on October 10, 1989. In an appeal from an institution's decision to refuse to confirm or deny the existence of requested records, considerable effort is taken by my office not to disclose the fact of whether the records exist or not. The correctness of the institution's decision to refuse to confirm or deny the existence of the records is an issue to be determined by me on appeal. Obviously, premature disclosure of the existence of any records would render this part of the appeal moot. Similarly, it can be difficult for me to discuss my reasons for my decision in an Order, particularly where I uphold the head's decision to refuse to confirm or deny the existence of the records. In the present appeal, I feel compelled to state my conclusion at the beginning of this Order, so that I might provide a fuller explanation of my decision. Accordingly, I confirm that three records exist which are responsive to your request. Having confirmed the existence of these records, it can be inferred that I have concluded that these records may not be withheld from disclosure pursuant to subsection 14(1) or (2) of the Act , a condition which must be satisfied before the head may refuse to confirm or deny the existence of the records. My reasons for reaching this conclusion are set out below. Upon receipt of the appeal, the Appeals Officer spoke with the institution's Freedom of Information and Privacy Co-ordinator (the "Co-ordinator") and learned that correspondence relating to you from the Ministry of Health, in fact, did exist. The Appeals Officer obtained and reviewed copies of these records. In an ensuing telephone conversation, the Co-ordinator indicated that the institution was of the view that subsections 14(1)(e), (h), (j), (k), and (l) of the Act applied to exempt each of the three records from disclosure. Further, subsection 14(3) of the Act was cited by the institution in order to protect the consultative process by which the institution responds to requests from yourself. Given the nature of this appeal, the Appeals Officer formed the view that a mediated settlement of issues arising in the appeal was not possible. Accordingly, Notices of Inquiry were sent to you and to the institution on November 22, 1989. Both you and the institution were asked to make representations to me concerning the subject matter of the appeal. I have received and considered representations from you and the institution. The purposes of the Act as set out in section 1 should be noted at the outset. Subsection 1(a) provides a right of access to information under the control of institutions in accordance with the principles that information should be made available to the public and that necessary exemptions from the right of access should be limited and specific. Subsection 1(b) sets out the counter-balancing privacy protection purpose of the Act . This subsection provides that the Act should protect the privacy of individuals with respect to personal information about themselves held by institutions and should provide individuals with a right of access to their own personal information. Further, section 53 of the Act provides that where a head refuses access to a record, the burden of proof that the record falls within one of the specified exemptions in the Act lies upon the head. The following records are at issue in this appeal: - Letter to J. Campbell, Ministry of Government Services, from K. Finney, Ministry of Health, dated June 8, 1989. - Memorandum to M. Rodrigues, Ministry of Government Services, from J. H. Danson, Ministry of Health, dated June 28, 1989. - Memorandum to J. H. Danson, Ministry of Health, from M. Rodrigues, Ministry of Government Services, dated July 7, 1989. By way of background to this appeal, I should state that prior to the appellant's request which generated this appeal, the appellant requested and received from the institution certain records which were subsequently confiscated from the appellant by an official employed by the Ministry of Health. The appellant's right of access to the confiscated records is the subject matter of another appeal. As a result of these events, officials with the Ministry of Health wrote to the institution to advise of these developments and to request that the institution consult with the Ministry of Health when it receives requests from the appellant in the future. These memoranda also indicate the exemptions which the Ministry of Health considered to be applicable to the confiscated records. The records at issue in this appeal relate to the Ministry of Health's consultation proposal an
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Legislation
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FIPPA
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10(2)
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14(1)
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14(1)(e)
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14(1)(h)
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14(1)(j)
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14(1)(k)
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14(1)(l)
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14(2)
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14(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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Feb 19, 1990
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Type
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Order
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