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Document
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P-913
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File #
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P-9400423
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Institution/HIC
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Ministry of Health
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The appellant submitted a request to the Ministry of Health (the Ministry) for access to "all working documents, reports, memoranda, correspondence and any other record of information" related to applications by a named company (the affected party) to relocate its laboratory and specimen collection centres (SCC's) from three specific locations. The Ministry located 119 records relating to the first of the three locations identified in the request. No records relating to the other two locations were found. Most of the responsive records identified by the Ministry were the subject of a third party appeal (file number P-9300610) which was initiated by the affected party. Appeal P-9300610 dealt with information which the Ministry had decided to disclose. That appeal was resolved by Order P-655. The subject matter of the current appeal consists of the records and parts of records which the Ministry decided not to disclose, and which were not dealt with in Order P-655. The Ministry relies on the following exemption to deny access to some of the records which remain at issue: solicitor-client privilege - section 19. In addition, the Ministry has refused to grant access to parts of several records at issue on the basis that they are not responsive to the request. A Notice of Inquiry was sent to the Ministry and the appellant. Representations were submitted on behalf of both parties. Subsequently, it became apparent that, in addition to the reasons for denying access referred to above, the Ministry was relying on the mandatory exemption provided by section 17(1) of the Act (third party information) to deny access to some of the information it has withheld from disclosure. For that reason, a supplementary Notice of Inquiry was sent to the appellant and the Ministry, inviting representations on the application of section 17(1). In addition, since it appeared that disclosure could have an impact on the interests of the affected party, both the original Notice of Inquiry and the supplementary notice dealing with section 17(1) were sent to the affected party, inviting representations on all the issues in the appeal. In response to these notices, representations were received from the appellant, the Ministry and the affected party. DISCUSSION : RESPONSIVENESS OF RECORDS As noted above, the Ministry has not disclosed some portions of the records at issue on the basis that they are not responsive to the request. This issue relates to Records 41, 42, 43, 98 and 106. All three parties to this appeal have been invited to submit representations on this subject, and I have considered these in reaching my decision on this issue. Before deciding whether parts of these records are not responsive to the request, and therefore outside the scope of this appeal as the Ministry alleges, I must address a more general submission made by the appellant in this regard. This submission was succinctly stated in the appellant's representations as follows: In light of section 10, it is submitted that the Ministry does not have the legal right to refuse to disclose portions of documents that have been produced on the grounds that they are not relevant to the request for disclosure that has been made. Section 10 of the Act states as follows: (1) Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or the part of the record falls within one of the exemptions under sections 12 to 22. (2) Where an institution receives a request for access to a record that contains information that falls within one of the exemptions under sections 12 to 22, the head shall disclose as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemptions. In my view, it is significant that section 10(1) refers to access to a "record or part of a record". On this basis, I read section 10 as permitting government organizations to disclose "part of a record" if only part contains responsive information. Moreover, the approach which flows from this interpretation is desirable from a practical perspective in relation to the access scheme in the Act , because it recognizes that government organizations create records for a variety of reasons, and some documents may be created to serve multiple purposes. While this analysis is, in my view, a completely sufficient rationale for adopting an interpretation which permits non-disclosure of parts of records on the basis of non-responsiveness, there is another consideration of a practical nature which, in my view, is an even more compelling reason to adopt this interpretation. Given the nature of government record-keeping (as discussed in the preceding paragraph), it is quite possible that parts of records which are clearly irrelevant to the subject matter of a request could contain personal information or sensitive commercial information whose potential disclosure would trigger the notice requirements of section 28(1) of the Act . This section requires government organizations to notify individuals and/or business entities whose information may be disclosed. If I accept the argument advanced by the appellant, government organizations (and, potentially, the Commissioner's office, under section 50(3) of the Act ) would be required to expend scarce resources to comply with these requirements in relation to information which has no bearing on the subject matter of a request. In my view, this would be a misinterpretation of the legislature's intention in enacting section 10(1). The view that section 10(1) permits government organizations to withhold parts of records as non-responsive is also consistent with the approach taken to this issue in Order P-154 and many subsequent orders. For all these reasons, I find that section 10(1) permits government organizations not to disclose parts of records on the basis that they are not responsive to a request. Moreover, I am of the view that the power of the Commissioner and his delegates to consider whether information in a record (as opposed to a whole record) is within the scope of a request is supported by the following comment of the Ontario Court (General Division) Divisional Court in Re At
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Legislation
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Subject Index
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Signed by
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John Higgins
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Published
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Apr 24, 1995
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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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