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Document
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P-398
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File #
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Appeal P-9200528
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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 eleven specific records. The Ministry released some records, and denied access to the rest, either in whole or in part, claiming sections 13(1), 18(1)(c) and (e), 19 and 21(1) of the Act . The requester appealed the Ministry's decision. During mediation, the appellant narrowed the scope of his request to five records, which are described in Appendix A. He also confirmed that he was not interested in receiving the parts of Record A which contain personal information of other individuals. The records which remain at issue in this appeal relate to a 1989 labour dispute between the Ontario Public Service Employees Union (the Union) and various Ontario Government Ministries. Further mediation was not possible, and notice that an inquiry was being conducted to review the Ministry's decision was sent to the appellant and the Ministry. Written representations were received from both parties. ISSUES: The issues arising in this appeal are: A. Whether the discretionary exemption provided by section 13(1) of the Act applies to Records B and/or J. B. Whether the discretionary exemption provided by in section 18(1)(c) of the Act applies to Records C and/or K. C. Whether the discretionary exemption provided by section 18(1)(e) of the Act applies to Record C. D. Whether the discretionary exemption provided by section 19 of the Act applies to Record A. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 13(1) of the Act applies to the remaining parts of Records B and/or J. Section 13(1) of the Act reads 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. Record B is a two-page draft affidavit prepared by the Assistant Director of the Ministry's Psychiatric Hospitals Branch (the Assistant Director) for the Administrator of the Penetanguishene Mental Health Centre (the Centre). The affidavit was intended to be filed in support of a court proceeding regarding a job action underway at the Centre during 1989. The affidavit was accompanied by a covering memorandum which the Ministry agreed to release during the course of the appeal. The Ministry agrees that Record B does not contain recommendations, but submits that it contains "advice as to the content that should be included in the affidavit and the wording it is proposed be used". Advice for the purposes of section 13(1) 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 [Orders 118, P-304 and P-348]. In my view, Record B was not prepared for the purpose of giving advice or suggesting a course of action which would be accepted or rejected in the deliberative process. Rather, it can more accurately be described as an outline of certain facts that the person who drafted the affidavit felt the signatory should include in the affidavit for submission in the context of the court proceeding. I find that Record B does not contain "advice" for the purposes of section 13(1), and that this record should be released to the appellant in its entirety. Record J is a single sentence severed from a memorandum from the Assistant Director to the Assistant Deputy Minister of the Ministry's Institutional Division. It describes the letter of agreement which resolved the labour relations dispute. The Ministry submits that the severed sentence contains an implicit recommendation regarding future dealings with employees involved in the job action. Again, I do not accept the Ministry's position. The sentence identifies an option available to the Ministry in implementing the agreement, but does not contain any wording which would indicate whether this option is recommended or not. In my view, the Ministry has failed to establish the requirements for exemption under section 13(1) of the Act , and the remaining sentence in Record J should be released to the appellant. ISSUE B: Whether the discretionary exemption provided by section 18(1)(c) of the Act applies to Records C and/or K. Section 18(1)(c) of the Act reads as follows: A head may refuse to disclose a record that contains, information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; To establish a valid exemption claim under section 18(1)(c), the Ministry must demonstrate a reasonable expectation of prejudice to the economic interests or competitive position of a government institution arising from disclosure of the information. It is not necessary to prove that the actual harm enumerated in the section will result from disclosure, only that the expectation of harm is based on reason and is not fanciful, imaginary or contrived [Order P-263]. Record C is a letter dated October 25, 1989 from the Deputy Minister of Correctional Services to the President of the Union, which sets out the terms of the agreement which resolved the labour dispute. The Ministry submits that: ... disclosure of the information contained in the record would effectively disclose the specific financial and negotiated settlements with respect to ending the 1989 job action. ... It is submitted that disclosure of this information would permit the use of this information to counteract any actions taken by any of the affected institutions should similar job actions be taken in the future. I do not accept these submissions. Because the letter was sent to the President of the Union, I fail to see how its release could prejudice the economic interests of the Ministry in future collective bargaining with its employees. In my view, the Ministry has failed to provide the "detailed and convincing" evidence required to establish the requirements for this exemption, and I f
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Legislation
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FIPPA
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18(1)(c)
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18(1)(e)
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Section 19
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13(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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Jan 12, 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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