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P-1291

Document		P-1291


File #		P-9600196


Institution/HIC		Ministry of Health


Summary		BACKGROUND: The National Blood Supply Program is funded by the provincial andterritorial governments through the Canadian Blood Agency (CBA), a non-profitcorporation created in 1991 under Part II of the Canada Corporations Act with the participation of the Ministries of Health of each of the provinces andterritories. The CBA also offers advice to the provincial and territorialHealth Ministries about blood product funding policy through its own staff basedin Ottawa. The mandate of the CBA is to "coordinate and finance theNational Blood Supply Program in accordance with the Ministers of Health for thetherapeutic use of human blood, blood products or their substitutes". The Canadian Blood Committee (CBC) was the predecessor to the CBA and wassimilarly established to direct and coordinate the Canadian Blood System. NATURE OF THE APPEAL: The Ministry of Health (the Ministry) received a request from a newspaperreporter under the Freedom of Information and Protection of Privacy Act (the Act )for the minutes of meetings of the CBA for the years 1991 to 1995 inclusive. The Ministry identified 27 sets of minutes as responsive records and deniedaccess to all of them, claiming the application of section 15(a) of the Act (relations with other governments). The requester (now the appellant) appealed the denial of access. During the course of mediation, the Appeals Officer identified that two setsof minutes of meetings held by the CBA's predecessor (Records 17 and 20), theCBC, were included in the documents identified by the Ministry. The appellantand the Ministry were both provided with an opportunity to provide their viewswith respect to whether these records are responsive to the appellant's request. Having reviewed these records and the wording of the request, I find thatRecords 17 and 20 are not responsive. Therefore, the records at issue in thisappeal consist only of the 25 sets of minutes of the CBA. In his letter of appeal, the appellant contends that full disclosure of therecords would be in the public interest. Therefore, section 23 (compellingpublic interest) was also identified as an issue in this appeal. A Notice of Inquiry was sent to the appellant and the Ministry. Inaddition, each of the other 11 Provincial and Territorial Departments/Ministriesof Health were identified as parties whose interests may be affected by thedisclosure of the records. Each of these parties was also invited to makesubmissions. Following that notification, an additional party, a privateagency, was identified as having a potential interest which could be affected bythe outcome of this appeal. That party's interest raised the possibleapplication of the mandatory provision set out in section 17 of the Act (third party information). Accordingly, all of the parties who received the initial Notice of Inquirywhich sought submissions on the application of section 15(a) to the records, aswell as the private agency, were provided with a further opportunity to makerepresentations on the application of section 17 of the Act to therecords. Representations in response to the first Notice of Inquiry were receivedfrom the Ministry, the Chair of the CBA and eight of the provincial/territorialrepresentatives. With respect to the Supplementary Notice of Inquiry on theapplication of section 17, representations were received from the Ministry, theprivate agency and six of the provincial/territorial representatives. PRELIMINARY ISSUE: CUSTODY OR CONTROL Several of the provincial representatives have raised the issue of whetherthe documents which are the subject of this request are within the custody orcontrol of the Government of Ontario. They argue that the nature of the CBA issuch that no single provincial or territorial government can be said to exercisecontrol or jurisdiction over its records. The CBA's members consist of each provincial and territorial Minister ofHealth, who then appoints a member to the CBA Board of Directors. Recordsgenerated by the CBA are distributed amongst its Board of Directors, includingthe representative of the Ontario Ministry of Health, a Ministry employee. Inthis way, the Minutes of CBA meetings have found their way into the recordholdings of the Ontario Ministry of Health. In Order P-270, Commissioner Tom Wright made the following findings withrespect to records in the custody of Ontario Hydro: The provincial Freedom of Information and Protection of Privacy Act is a provincial law of general application that applies to records in thecustody or under the control of a ministry of the Government of Ontario, and anyother provincial agency, board, commission, corporation or other body designatedas an institution in the regulations. Ontario Hydro is designated as an "institution"in Ontario Regulation 516/90 under the Act . The records in issue in this appeal - agendas and minutes of SOATIC (ajoint technical committee at the senior executive level of AECL and OntarioHydro) - are records that are in the custody of Ontario Hydro, an institutionunder the Act . Section 10 of the Act provides every person with the right of access to arecord or a part of a record in the custody or under the control of an "institution". That right is made subject to the specific exemptions set out in sections 12 to22 of the Act . These exemptions are intended by the Legislature toprotect certain defined interests. In my view, the principles expressed above are equally applicable to recordsin the custody of the Ontario Ministry of Health which came into its possessionas a function of its participation in a national blood products program. I findthat the records at issue in this appeal, though not the "property" ofthe Ministry, are within its custody for the purposes of the Act . Assuch, I find that I have the necessary jurisdiction to determine whether theserecords are subject to disclosure or are properly exempt under the Act ,in whole or in part. DISCUSSION: RELATIONS WITH OTHER GOVERNMENTS The Ministry claims that section 15(a) of the Act applies to all ofthe records at issue in this appeal. This sections read as follows: A head may refuse to disclose a record where the disclosure couldreasonably be expected to, prejudice the conduct of intergovernmental relations by the Government ofOntario or an institution; For a record to qualify for exemption under section 15(a), the Ministry mustestablish that: 1.the relations must be intergovernmental, that is relations between aninstitution and another government or its agencies; and 2.disclosure of the records could give rise to a reasonable expectation ofprejudice to the conduct of intergovernmenta


Legislation		FIPPA 10(1) custody or control 15(a) 17(1)(a), (b) & (c) Section 23


Subject Index		Canadian Blood Agency minutes Relations with Other Governments


Signed by		Donald Hale


Published		Nov 14, 1996


Type		Order


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