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Document
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P-126
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File #
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Appeal 880229
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Institution/HIC
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Ministry of Industry, Trade and Technology
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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 (the " Act "), which gives a person who has made a request for access to a record under subsection 24(1) or a request for access to personal information under subsection 48(1) a right to appeal any decision of a head to the Commissioner. The facts of this appeal and the procedures employed in making the Order are as follows: 1. On May 3, 1988, the requester, an individual, made the following request to the Ministry of Industry, Trade and Technology (the "institution"): 1. The record of invoices received from or in respect of and payments made to or in respect of all private investigators engaged directly by or indirectly on behalf of any of the Ministry of Industry, Trade and Technology, the Ontario Development Corporation, IDEA Corporation and IDEA Innovation Fund Inc. in connection with investigations relating to Graham Software Corporation, its predecessors and successors or persons having a direct or indirect beneficial interest therein, including but not limited to (a named individual). 2. The record of reports of the foregoing investigations. 3. The record of invoices and accounts received from and payments made to legal counsel retained by or on behalf of any of the Ministry of Industry, Trade & Technology, the Ontario Development Corporation, IDEA Corporation and IDEA Innovation Fund Inc. in connection with investments made in, relations with, and claims asserted against Graham Software Corporation, its predecessors and successors or persons having a direct or indirect beneficial interest therein, including but not limited to (a named individual). 4. The record of measures taken by the Minister of Industry, Trade & Technology to satisfy himself that Supreme Court of Ontario proceeding Court File No. 26683/88 as commenced against me is not an abuse of the process of that Court. Pursuant to s.48(1) of the Freedom of Information and Protection of Privacy Act, 1987 , I request access to personal information (as defined in s.2(1) of the said Act ) about myself in the custody or control of any of the Ministry of Industry, Trade and Technology, the Ontario Development Corporation, IDEA Corporation Fund Inc., the location of which is the files of the foregoing institutions, legal counsel retained by them and private investigators engaged by them or on their behalf maintained in connection with Graham Software Corporation, its predecessors and successors. 2. In a letter dated July 11, 1988, the institution refused to grant access to the requested records, giving reasons as follows: With respect to your requests for records set out in paragraphs numbered 1, 2 and 3 of your letter of May 3, 1988, access to these records is denied. As you know, there is a substantial lawsuit presently in progress in the courts of Ontario which was commenced by IDEA Corporation against a number of defendants, including yourself... The aforesaid records requested by you are exempt from disclosure pursuant to section 19 of the Freedom of Information and Protection of Privacy Act, as being records that are subject to solicitor-client privilege, and/or were prepared in contemplation of, and for use in, the litigation. Access to the aforesaid records is also denied pursuant to section 18(1)(c) and (d). ...the aforesaid legal action involves a claim in excess of $5,000,000.00 and ...the records requested may have a significant impact on that litigation and therefore, should only be disclosable pursuant to the rules of court. The records in Item 2 are also exempt from disclosure in the circumstances, pursuant to section 14(1)(b) and (f). The rules of court of the Supreme Court of Ontario contain specific provisions for production and disclosure of documents that are relevant in a lawsuit, and also documents which are not disclosable in a lawsuit. Those rules are designed to provide litigants with a fair trial or impartial adjudication and, therefore, we submit that the rules of court ought to prevail with respect to the records in issue. The records in item 2 are also exempt from disclosure in the circumstances pursuant to section 21(1) and (3) of the Act, in that the records disclose personal information of persons other than the requestor. (sic) With respect to Item 4 in your letter of May 3, 1988, access is denied pursuant to section 13(1) of the Act as being records containing advice or recommendations of a public servant or other person employed in the services of an institution or consultant retained by an institution, and also pursuant to section 19, on the grounds that any such record is subject to solicitor-client privilege. With respect to your request pursuant to section 48(1) any such record or information is exempt from disclosure for the same reasons as set out above, namely the existing legal action and, in particular, sections 14(1)(b) and (f), 19 and also sections 49(a) and (b) of the Act. 3. By letter dated July 12, 1988, the requester appealed the denial of access. The appellant took the position that the refusal of access was "contrary to the Act " and that "the minister has failed to comply with severance obligations". 4. On July 18, 1988, I sent notice of the appeal to both parties. 5. The records relevant to this appeal were obtained and reviewed by an Appeals Officer from my staff. Settlement possibilities were discussed in the light of the various exempting provisions claimed. As both parties maintained their respective positions, no settlement could be achieved. 6. By letter dated January 5, 1989, I sent notice to the appellant and the institution that I was conducting an inquiry to review the decision of the institution. Enclosed with this letter was a report by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlined the facts of the appeal and set out questions which paraphrased those sections of the Act which appeared to the Appeals Officer or to any of the parties to be relevant to the appeal. The report stated that the parties, in making their representations to me, were not required to limit themselves to the questions set out in the report. It also advised the parties that if a relevant new issue was raised during the inquiry, each party would be no
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Legislation
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FIPPA
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14(1)(f)
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Section 19
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Subject Index
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Signed by
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Sidney Linden
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Published
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Dec 04, 1989
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Type
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Order
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