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Document
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PO-1781-I
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File #
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PA-990275-1
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Institution/HIC
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Ministry of Health and Long Term Care
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Summary
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NATURE OF THE APPEAL: The appellant submitted a request to the Ministry of Health and Long - Term Care (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ) for copies of all information regarding the proposed regulation and accompanying standards of practice submitted by the Royal College of Dental Surgeons of Ontario (the affected party) dealing with orders to dental hygienists. The time frame of the request is May 1998 to present. The Ministry located 76 records and granted partial access to them. The Ministry denied access to the remaining records in whole or in part pursuant to the exemptions in sections 12, 13, 17, 18, 19 and 21 of the Act . In addition, the Ministry noted that some information was removed from the records as it considered this information to fall outside the scope of the request. The appellant appealed the Ministry's decision. During mediation, a number of records and parts of records were removed from the records at issue. However, all of the exemptions claimed by the Ministry as well as the issue of responsiveness of portions of two records remain at issue. I sent a Notice of Inquiry to the Ministry and affected party, initially. Both parties submitted representations in response to this office. ISSUE: The Ministry's representations consisted of three documents entitled "Public Representations", "Confidential Facts and Evidence" and "Confidential Affidavit of Facts and Evidence". The Ministry also included a number of enclosures which were referred to in the affidavit. The Ministry consented to the first document being shared with the appellant, but asked me to withhold the second and third documents from both the appellant and the affected party. Counsel for the affected party did not indicate in his representations whether any portion of them could be shared with the appellant. However, in response to my queries in this regard, counsel wrote to this office and indicated that he "ha[d] no instructions from my client to offer to share its Submission with the Appellant". In discussions with the Adjudication Review Officer, counsel clarified that he does not wish his representations to be shared with the appellant. The purpose of this interim order is to rule on the Ministry's request to withhold its "Confidential Facts and Evidence" and "Confidential Affidavit of Facts and Evidence" and the affected party's request to withhold its representations in their entirety. DISCUSSION: Sharing of representations procedure In the Notice of Inquiry cover letter to the Ministry and the affected party, I stated: The representations you provide to this office may be shared with the appellant, unless there is an overriding confidentiality concern. The procedure for the submitting and sharing of representations is set out in the attached document entitled Inquiry Procedure at the Adjudication Stage . Please refer to this document when preparing your representations. The Inquiry Procedure document states: In its representations, the first party must indicate clearly, and in detail: which information in its representations, if any, the party wishes the Adjudicator to withhold from the second party; and its reasons for this request (see confidentiality criteria below). The document later sets out the criteria for withholding representations, as follows: The Adjudicator may withhold information contained in a party's representations where: (a) disclosure of the information would reveal the substance of a record claimed to be exempt or excluded; (b) the information would be exempt if contained in a record subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act; or (c) the information should not be disclosed to the other party for another reason. For the purposes of paragraph (c) above, the Adjudicator will apply the following test: (i) the party communicated the information to the IPC in a confidence that it would not be disclosed to the other party; and (ii) confidentiality must be essential to the full and satisfactory maintenance of the relation between the IPC and the party; and (iii) the relation must be one which in the opinion of the community ought to be diligently fostered; and (iv) the injury to the relation that would result from the disclosure of the information would be greater than the benefit thereby gained for the correct disposal of the litigation. The Ministry's confidentiality request The Ministry addressed the confidentiality of representations issue with respect to the document entitled "Confidential Facts and Evidence" as follows: This submission of "Confidential Facts and Evidence" satisfied the IPCO's "confidentiality Criteria for Representations" because its disclosure would disclose much of the substance of the records. Accordingly, such information would in and of itself be subject to the exemptions in ss. 12(1), 13(1), 17(1), 19 and 21(1) of FIPPA. The MOHLTC submits that it is impossible to make adequate submissions to the IPCO in this appeal without reference to portions of the records at issue. With respect to the document entitled "Confidential Affidavit of Facts and Evidence", the Ministry stated: The Enclosed affidavit of "Confidential Facts and Evidence" is for the sole use of the Information and Privacy Commission (the IPCO) only and in accordance with s 55(1) of the Freedom of Information and Protection of Privacy Act may not be disclosed to the Appellant or the affected party. Nor may any information contained in this Affidavit be paraphrased, quoted or reported by the IPCO in any manner in its order resolving this appeal ...
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Legislation
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Subject Index
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Signed by
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Laurel Cropley
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Published
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May 08, 2000
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Type
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Order – Interim
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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