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Document
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P-293
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File #
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Appeal 900036
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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 BACKGROUND: The Ministry of Health (the "institution") received the following request: 1988, 1989 representations/reports on the potential sale of Connaught, and conditions on such a sale and effect on vaccine supplies. The institution responded by denying access to the records pursuant to sections 12(1), 13(1), 15(a) and 18(d), (e) and (g) of the Freedom of Information and Protection of Privacy Act (the " Act "). The requester wrote to this office appealing the institution's decision. The records were obtained and reviewed by the Appeals Officer assigned to the case. Because settlement could not be effected, the matter proceeded to inquiry. An Appeals Officer's Report was prepared and sent to the appellant, the institution and twelve persons or organizations whose interest might be affected by disclosure of the records (the "affected parties"). The Report invited representations regarding the application of the exemptions claimed by the institution, and section 17 of the Act which, in the opinion of the Appeals Officer, was also relevant. The Report also established a numbering system for the 28 specific records at issue in the appeal, which I have adopted for the purpose of this order. Representations were received from the institution, the appellant and five of the affected parties. PRELIMINARY ISSUES: Before I consider the application of the various exemptions to the records, I will address the following three preliminary issues: (1) my jurisdiction to review the head's decision; (2) certain records/severances which are not responsive to the appellant's request; and (3) records for which the institution has abandoned the exemption originally claimed. (1) jurisdiction to review the head's decision In its representations, the institution submits that the Commissioner had no jurisdiction to hear this appeal because the appellant filed the appeal 32 days after receiving the institution's response, which is outside the 30-day period provided by section 50(2) of the Act . This submission was also made by counsel for one of the affected parties, Connaught Laboratories Limited ("Connaught"). The institution's decision letter was dated December 21, 1989. The letter of appeal was dated January 19, 1990, and the envelope containing this letter was postmarked in Ottawa on the same date. The letter of appeal was received by our office on January 22, 1990. Both the institution and the affected party maintain that the Commissioner is limited to the powers prescribed by the Act , and that section 50(2) of the Act should be interpreted literally. Connaught submits that, notwithstanding Order 155, the wording of section 50(2) is "clear and unequivocal and leaves no room for liberal interpretation". The institution submits that if the Commissioner acts "outside the parameters of the Act " and accepts the appeal, this would result in prejudice to the institution because it would "create uncertainty... and interfere with retention schedules for files established in conjunction with the Act". Section 50(2) states: An appeal under subsection (1) shall be made within thirty days after the notice was given of the decision appealed from by filing with the Commissioner written notice of appeal. In Order 155, dated March 19, 1990, former Commissioner Sidney B. Linden interpreted section 50(2). He pointed out that the nature of the appeals system established by the Act is informal, and that the overriding policy as defined in section 1 is to promote access to information in the custody or under the control of government institutions. At page 4 of Order 155, Commissioner Linden states that the Act should be interpreted: ... liberally in favour of access to the process, rather than strictly to deny access. This is especially true where the alleged lapse of time after the date when an appeal should have been filed is not significant, and where no prejudice has been shown by the institution or any other person affected by the alleged delay. I agree with Commissioner Linden's reasoning. In this case, after the appeal file was opened and notices were sent to the parties, the institution replied by forwarding the records which responded to the appellant's request to this office. The issue of jurisdiction was not raised by the institution at that time or any other time prior to the submission of representations after the appeal had moved into the inquiry stage. The institution's submissions are based on the fact that the appeal was filed 32 days (as opposed to 30 days) after the decision had been made by the institution. No evidence of prejudice has been submitted by the institution or the affected party, and in the circumstances of this appeal, I find that I have jurisdiction to review the head's decision. (2) records/severances not responsive to the request The institution submits that 5 records are not responsive to the request. They are: 9. Briefing note, undated 14. Briefing note, October 12, 1989 15. Terms of Reference of Working Group, undated 16. Briefing note, October 6, 1989 17. Notes on Research Priority, undated Record 12 is a blank page. I have examined these records and I agree that they fall outside the scope of the appellant's request, and are not at issue in this appeal. Four other Records (4, 5, 10 and 20) contain some severances which I also find to fall outside the scope of the appellant's request. In Record 4 (undated handwritten notes), the institution has severed the name of an individual. In Record 5, it has severed the name of the same individual along with that person's telephone number. The institution is prepared to release the remaining parts of these two Records. The appellant's request makes no reference to personal information about specifi
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Legislation
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FIPPA
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11(1)
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12(1)
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12(1)(a)
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15(a)
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15(b)
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17(1)(a)
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17(1)(a), (b) & (c)
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17(1)(b)
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17(1)(c)
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18(1)(d)
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18(1)(g)
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50(2)
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Section 15
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Section 23
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17(1)
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Apr 24, 1992
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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