|
|
|
|
|
|
|
|
|
|
|
|
|
|
Document
|
|
P-356
|
|
|
|
|
|
File #
|
|
P-910167
|
|
|
|
|
|
Institution/HIC
|
|
Ministry of Health
|
|
|
|
|
|
Summary
|
|
ORDER BACKGROUND: The Ministry of Health (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for records related to a proposal by the Scarborough General Hospital to construct an office building. The Ministry identified 10 responsive records which were prepared in the form of a package numbered from pages 1-190. The Ministry provided access to five of the records, but denied access to the remaining five pursuant to sections 13(1), 17(1) and 19 of the Act . The requester appealed the Ministry's decision. During mediation, the Ministry withdrew the section 19 exemption claim entirely, and the section 17 claim with respect to Records 2, 3 and 5. Further attempts to mediate the appeal were not successful, and notice that an inquiry was being conducted to review the Ministry's decision was sent to the appellant, the Ministry and two organizations that had an interest in the records (the affected persons), namely the SGH Medical Mall Limited Partnership (the SGH Partnership) and Scarborough General Hospital (the Hospital). During the course of the inquiry, the two appraisal firms which authored Records 4 and 5 (the first appraisal firm and the second appraisal firm) were added as affected persons and afforded the opportunity to make representations. Representations were received from all parties to the appeal, with the exception of the Hospital. The records which are at issue in this appeal, together with the exemptions claimed, are numbered and described as follows: Record 1: A ten page letter dated October 31, 1990 from a consultant to the Minister of Health (pages 1-10 of Ministry package), denied in its entirety pursuant to section 13(1); Record 2: Land Lease between the SGH Partnership and the Hospital (pages 13-95 and pages 132-155 of Ministry package), denied in its entirety pursuant to section 17(1); Record 3: Excerpt from Hospital Operating Policy Manual (pages 96-97 of Ministry package), denied in its entirety pursuant to section 17(1); Record 4: Property Value Appraisal of the first appraisal firm (pages 98-126 of Ministry package), denied in its entirety pursuant to section 17(1); Record 5: Property Value Appraisal of the second appraisal firm (pages 127-131 and pages 156-184 of Ministry package), denied in its entirety pursuant to section 17(1); The records all relate to the SGH Partnership's proposal to construct an office building on land owned by the Hospital and to be leased to the SGH Partnership. Pursuant to section 4(4) of the Public Hospitals Act , prior approval of the Minister of Health is required in order to lease Hospital lands. Before providing her approval, the Minister retained a consultant as a fact-finder to review and assess the SGH Partnership proposal. Record 1 is the consultant's report. The remaining records were reviewed by the consultant and attached as schedules to his report. Record 2 is a copy of a draft lease between the SGH Partnership and the Hospital; Record 3 is an excerpt from the Hospital Operating Policy Manual; and Records 4 and 5 are appraisals of the value of the land. ISSUES: The issues arising in this appeal are as follows: A. Whether the discretionary exemption provided by section 13 of the Act applies to Record 1. B. Whether the mandatory exemption provided by section 17 of the Act applies to Records 2, 3, 4, and 5. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 13 of the Act applies to Record 1. The Ministry submits that section 13(1) applies to Record 1 in its entirety. Section 13(1) of the Act reads: 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 this section 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 in the deliberative process [Order 118, P-304 and P-348]. "Recommendations" should be viewed in the same vein [Orders 161, P-248 and P-348]. The Ministry submits that disclosure of Record 1 would reveal the consultant's advice and recommendations about the proposal which were "intended to provide the Minister with information on which she could make a decision regarding her approval or lack of approval for the lease of part of the Hospital's land". The Ministry acknowledges that a large portion of Record 1 consists of factual background material. Specifically, it states that the information under the following headings is factual information: "Review of Information Available, and Persons Interviewed", "Historical Perspective of Medical Office Building at Scarborough General Hospital", "Proposal" and "Ministry Policy and Guidelines". The Ministry also acknowledges that there is some factual information contained in the remaining parts of the report, but submits that it is unreasonable to sever this information because it is integrated with the consultant's opinion and advice. I have carefully reviewed Record 1 and the representations of the parties. In my view, disclosure of all parts of the record beginning with the third full paragraph on page 7 up to but not including the closing sentence and signature on page 10 of the record, would reveal the advice and recommendations of a consultant retained by the Ministry. As such, these parts of Record 1 qualify for exemption under section 13(1) of the Act . With respect to any factual material contained in these parts of the record, in my view, it is so interwoven with the advice and recommendations that it cannot reasonably be severed pursuant to section 10(2) of the Act . I find that disclosure of pages 1 through 6 and up to the end of the second full paragraph on page 7 of Record 1 would not reveal advice or recommendations, and accordingly, these parts of the report do not qualify for exemption under section 13(1). Section 13 of the Act provides the Ministry with discretion to disclose a record even if it meets the test for exemption. With respect to those parts of Record 1 which I have found qualify for exemption under
|
|
|
|
|
|
Legislation
|
|
-
FIPPA
-
17(1)(a)
-
17(1)(a), (b) & (c)
-
17(1)(b)
-
17(1)(c)
-
13(1)
-
17(1)
|
|
|
|
|
|
Subject Index
|
|
|
|
|
|
|
|
Signed by
|
|
Tom Mitchinson
|
|
|
|
|
|
Published
|
|
Oct 08, 1992
|
|
|
|
|
|
Type
|
|
Order
|
|
|
|
|
|
<<
Back
|
|
|
|
Back to Top
|
 |
|
|
|
© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
|