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Document
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P-207
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File #
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890278
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Institution/HIC
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Ministry of Health
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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 , as amended (the " Act ") which gives a person who has made a request for access to a record under subsection 24(1) a right to appeal any decision of a head under the Act to the Information and Privacy Commissioner. On January 5, 1990, the undersigned was appointed Assistant Commissioner and received a delegation of the power to conduct inquiries and make Orders under the Act . The facts of this case and the procedures employed in making this Order are as follows: 1. By letter dated July 10, 1989, a request was made to the Ministry of Health (the "institution") for the following: Submissions made to the Information Commissioner re Appeal No. 88007 (sic) in 1988, 1989. 2. On August 11, 1989, the institution responded to the requester as follows: The Ministry has reviewed your request for access to records under the Freedom of Information and Protection of Privacy Act and access has been denied under the authority Sections 19 and 52(3). 52(9) and 52(13) of the Act. The reason this provision applies to the records requested is: Section 19 - Solicitor-Client privilege; Section 52(3) - The inquiry may be conducted in private; Section 52(9) - Information supplied in the course of an inquiry is privileged; Section 52(13) - No person is entitled to be present during, to have access to or to comment on representations made to the Commissioner by any other person. 3. By letter dated August 25, 1989, the requester appealed the denial of access. 4. On August 30, 1989, notice of the appeal was given to the institution and the appellant. 5. The records at issue were reviewed by an Appeals Officer. No attempt was made to mediate as the appellant and the institution both maintained their original positions. 6. By letter dated March 7, 1990, notice that an inquiry was being conducted to review the decision of the head was given to the institution and the appellant. Enclosed with the notice of inquiry was a copy of a report prepared by the Appeals Officer, intended to assist parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal, and sets out questions which paraphrase sections of the Act which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. The Appeals Officer's Report indicates that the parties, in making representations need not limit themselves to the questions set out in the report. 7. Representations were received from the institution and the appellant. In its representations, the institution dropped its reliance on subsections 52(3) and (9). I have considered all representations in making my Order. The issues arising in this appeal are as follows: A. Whether the appellant has a right of access to the representations made by an institution to the Information and Privacy Commissioner/Ontario, in the course of an inquiry under section 52 of the Freedom of Information and Protection of Privacy Act, 1987 . B. If the answer to Issue A is in the affirmative, whether the record is subject to the discretionary exemption provided by section 19 of the Act . Issue A : Whether the appellant has a right of access to the representations made by an institution to the Information and Privacy Commissioner/Ontario, in the course of an inquiry under section 52 of the Freedom of Information and Protection of Privacy Act, 1987 . The appellant has requested the representations made by the institution to the Information and Privacy Commissioner/Ontario (the "Commissioner") in Appeal Number 880007 and the institution has denied access to this record by relying on sections 52 and 19. Section 52 contains the powers of the Commissioner with respect to conducting inquiries to review decisions of institutions that are appealed to the Commissioner. The statutory authority of the Commissioner extends to the power to make a binding Order, the ability to require production of any record in the custody or under the control of an institution, the right to enter the premises of an institution and the right to conduct inquiries in private. In arriving at my decision, I have considered the unique circumstances associated with an appeal. A person has made a request for a record and an institution has denied access to it. The person appeals the decision denying access to the Commissioner who must decide if the appellant is to receive access to the record. If an appellant were provided with access to the record or to other information that would disclose the content of the record, before the decision on access was made, the appeal would be redundant. I believe that this is one of the reasons why the Legislature adopted subsection 52(13) of the Act . Subsection 52(13) of the Act reads as follows: The person who requested access to the record, the head of the institution concerned and any affected party shall be given an opportunity to make representations to the Commissioner, but no person is entitled to be present during, to have access to or to comment on representations made to the Commissioner by any other person . (emphasis added) Section 52 and in particular subsection 52(13), was discussed by Commissioner Sidney Linden in Order 1
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Legislation
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Subject Index
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Signed by
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Tom Wright
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Published
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Nov 27, 1990
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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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