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Document
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P-592
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File #
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P-9300132
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Institution/HIC
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Ministry of Health
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Summary
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ORDER BACKGROUND: The Ministry of Health (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to personal information and general records relating to certain Freedom of Information files maintained by the Ministry. The requester in the present appeal had also been the individual whose requests had prompted the opening of these files. The Ministry located 70 records responsive to the request. Access was granted in full to 44 records. Access was, however, denied in part to one record pursuant to section 17(1)(b) of the Act and in full to the remaining 25 records pursuant to sections 13(1), 17(1)(b), 18(1)(f), 19, 52(9) and 52(13) of the Act . The requester appealed the Ministry's denial of access, except for that information withheld pursuant to section 52(13). In addition, he questioned whether those who made the decision pertaining to his access request had the requisite authority to do so, and stated that he believed that further records should exist at the Oak Ridge Division of the Penetanguishene Mental Health Centre. Further mediation was not successful and notice that an inquiry was being conducted to review the Ministry's decision was sent to the Ministry, the appellant and a person (the affected person) whose rights may have been affected by the disclosure of information contained in one of the records. Representations were received from the appellant and the Ministry only. Both during mediation, and following the receipt of representations, the appellant indicated that he was not seeking access to some of the records which had been withheld from him. In addition, duplicate documents were removed from the records at issue. The records which remain may be placed into three categories. The first are records which were supplied to the Commissioner's office during the inquiry stage of the appeals process. The second are records which were provided to the Commissioner's office in the pre-inquiry or mediation stage of the appeals process. The third category involves records which were internally generated within the Ministry which were not shared with the Commissioner's office at any stage of the appeal process. The records at issue, along with a brief description and the exemptions applied by the Ministry to each, are listed in Appendix A to this order. PRELIMINARY ISSUES: The appellant questions whether both the Director of the Legal Services Branch and the Administrator of the Penetanguishene Mental Health Centre (and Oak Ridge Division) had the requisite delegated authority pursuant to section 62(1) of the Act to deny access to certain of the records at issue. Section 62(1) of the Act provides as follows: A head may in writing delegate a power or duty granted or vested in the head to an officer or officers of the institution subject to such limitations, restrictions, conditions and requirements as the head may set out in the delegation. The Ministry has provided with its representations a copy of the Ministry of Health's Delegation of Authority document, which was in effect at the time the decision to deny access to some records was issued. It shows that Directors and Hospital Administrators have, among other powers, the delegated authority to grant access in part and to apply exemptions under sections 12 to 22 and section 49 of the Act . Thus, I am satisfied that the decision-makers had proper delegated authority to apply the exemptions cited. I note that access was also denied to some of the records pursuant to section 52(9) of the Act . The delegation of authority does not refer specifically to section 52(9). Section 52(9) of the Act provides as follows: Anything said or any information supplied or any document or thing produced by a person in the course of an inquiry by the Commissioner under this Act is privileged in the same manner as if the inquiry were a proceeding in a court. Section 52(9) creates a particular type of privilege for information supplied or documents or things produced during an inquiry. In my view, it is not necessary that this privilege be referred to expressly in the head's delegation. As a result, I am satisfied that the Director of Legal Services and the Administrator of the Penetanguishene Mental Health Centre (and Oak Ridge Division) also had the requisite authority to claim that the privilege referred to in section 52(9) applies to certain records at issue. ISSUES: The issues arising in this appeal are as follows: A. Whether the discretionary exemption provided by section 13(1) of the Act applies to the records at issue. B. Whether the mandatory exemption provided by section 17(1)(b) of the Act applies to the records at issue. C. Whether the discretionary exemption provided by section 18(1)(f) of the Act applies to the records at issue. D. Whether the discretionary exemption provided by section 19 of the Act applies to the records at issue. E. Whether the privilege contained in section 52(9) of the Act applies to the records at issue. F. Whether the Ministry made an adequate search for all records at the Penetanguishene Mental Health Centre and the Oak Ridge Division of the Penetanguishene Mental Health Centre. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 13(1) of the Act applies to the records at issue. The Ministry claims that the exemption contained in section 13(1) of the Act applies to Records 23C, 24C, 46C, 47C and 51C to 54C. Section 13(1) provides as follows: A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution. Advice for the purposes of section 13(1) of the Act must contain more than mere information. Generally speaking, advice pertains to the submission of a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process (Order 118). I have reviewed the records for which section 13(1) was claimed and am satisfied that the discretionary exemption provided by section 13(1) applies to all of Records 47C and 51C and to those parts of Records 23C, 24C, 46C, 53C and 54C, indica
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Legislation
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FIPPA
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17(1)(b)
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18(1)(f)
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52(9)
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Section 19
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13(1)
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62(1)
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Subject Index
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Signed by
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Donald Hale
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Published
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Dec 01, 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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