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Document
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P-664
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File #
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P-9300141
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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 records located in specific areas of the Ministry relating to the following topics: (a) Secure/Forensic Treatment in Ontario (b) Services for Mentally Disordered Offenders (c) Lack of Medium Secure Beds in Psychiatric Hospitals (d) Secure/Forensic Psychiatric Care in Ontario The requester indicated that his request was limited to those records created between January 1, 1988 and December 8, 1992. The Ministry provided access in full to two reports (Records 1 and 2) but withheld access to the remaining 16 records based on the exemptions found in sections 12(1)(b), (c) and (e), 13(1) and 22(a) of the Act . The requester appealed the Ministry's decision to deny access to the documentation and also took the position that additional records responsive to his request should exist. Finally, the appellant submitted that the Ministry official who signed the decision letter did not have a proper delegation of authority under the Act to permit him to deny access to a portion of the records. The 16 records at issue in this appeal and the exemptions claimed by the Ministry for each document are described in Appendix "A" which is attached to this order. PRELIMINARY ISSUE: The appellant submits that the Director of the Mental Health Facilities Branch of the Ministry, who was responsible for the Ministry's decision on access, lacked the delegated authority under section 62(1) of the Act to withhold the records from disclosure. This statutory provision reads as follows: A head may in writing delegate a power or duty granted or vested in the head to an officer or officers of the institution subject to such limitations, restrictions, conditions and requirements as the head may set out in the delegation. Along with its representations, the Ministry has provided the Commissioner's office with a copy of the Ministry's Delegation of Authority document which was in effect at the time that the relevant decision was issued. This document indicates that the various Directors within the Ministry have, among other powers, the delegated authority to grant access to records in part and to apply the exemptions found in sections 12 through 22 and 49 of the Act . In its representations, the Ministry goes on to state that: ... Directors have been delegated the authority to authorize full and partial disclosure ... It is the Ministry's position that the severance of an entire document where there is a disclosure of other documents constitutes a decision of partial access to which the Director has the delegated authority. I accept this interpretation and find that the Director of the Mental Health Facilities Branch had the requisite delegated authority to apply the exemptions contained in sections 12, 13 and 22 of the Act to deny access to individual records or to parts of these records. ISSUES: The remaining issues to be canvassed in this appeal are the following: A. Whether the discretionary exemption provided by section 13(1) of the Act applies to Record 3. B. Whether the mandatory exemption provided by section 12(1) of the Act applies to Records 3 to 16. C. Whether the discretionary exemption provided by section 22(a) of the Act applies to Records 17 and 18. D. Whether the search undertaken by the Ministry for records responsive to the request was reasonable in the circumstances of the appeal. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 13(1) of the Act applies to Record 3. The Ministry claims that section 13(1) of the Act applies to all of Record 3, a 23-page document, which contains various memoranda pertaining to forensic issues and a proposal respecting a named psychiatric facility. Section 13(1) of the Act states that: 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. It has been established in many previous orders that advice and recommendations for the purpose of section 13(1) must contain more than mere information. To qualify as "advice" or "recommendations", the information contained in the record must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process. I have carefully reviewed Record 3 and find that pages 16 and 17 of this document, as well as those portions of pages 3 to 7, 10, 11, 15, 18 to 20, 22 and 23 which have not been highlighted in yellow contain advice and recommendations for the purposes of section 13(1). This information, therefore, is not subject to disclosure. I find, however, that pages 1, 2, 8, 9, 12, 13, 14 and 21 do not contain information which falls into these categories. I have also reviewed the list of mandatory exceptions contained in section 13(2) of the Act and find that none of them apply in the circumstances of this appeal. Because section 13(1) is a discretionary exemption, I have considered the Ministry's representations regarding its decision to exercise discretion in favour of claiming this exemption and I find nothing improper in the determination which has been made. ISSUE B: Whether the mandatory exemption provided by section 12(1) of the Act applies to Records 3 to 16. The Ministry claims that Records 3 to 16 are exempt from disclosure in their entirety by virtue of the introductory wording of section 12(1) of the Act or pursuant to sections 12(1)(b), (c) or (e). The Ministry also submits that pages 12 to 19 of Record 3 qualify for exemption under section 12(1)(e) of the Act . It should be noted that Record 5 is a duplicate of pages 12 to 18 of Record 3. My decision regarding the application of section 12(1) to the relevant pages of Record 3 will apply equally to Record 5. Section 12(1) of the Act states, in part, that: A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its
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Legislation
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FIPPA
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12(1)
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12(1)(b)
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12(1)(c)
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12(1)(e)
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22(a)
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13(1)
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62(1)
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Subject Index
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Signed by
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Irwin Glasberg
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Published
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Apr 27, 1994
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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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