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Document
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P-1510
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File #
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P-9700242
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Institution/HIC
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Ministry of Labour
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Summary
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NATURE OF THE APPEAL:
The appellant made a request under the Freedom of Information and Protection of Privacy Act
(the Act) to the Ministry of Labour (the Ministry). The request was for access to all the records
relating to the appellant that were retained by the Ministry’s Office of the Worker Adviser
(OWA). Specifically, the appellant asked for his entire file including memoranda,
correspondence and contents of his OWA Administrative File.
The Ministry located responsive records and granted access to them with the exception of three
records. The Ministry withheld the three records based on the following exemptions:
• advice or recommendations - section 13(1)
• law enforcement - section 14(1)(e)
• danger to safety or health - section 20
• invasion of privacy - section 21(1)
The appellant appealed the Ministry’s decision to deny access, and claimed that additional
records should exist.
This office sent a Notice of Inquiry to the Ministry and the appellant. Sections 49(a) and (b) of
the Act were included as issues in the Notice as the three records at issue in the appeal appeared
to contain the personal information of the appellant. Representations were received from both
parties.
RECORDS:
The records at issue in this appeal consist of three memoranda, totalling four pages.
DISCUSSION:
REASONABLENESS OF SEARCH
Where a requester provides sufficient details about the records which he or she is seeking and the
Ministry indicates that such records do not exist, it is my responsibility to ensure that the
Ministry has made a reasonable search to identify any records which are responsive to the
request. The Act does not require the Ministry to prove with absolute certainty that the requested
record does not exist. However, in my view, in order to properly discharge its obligations under
the Act, the Ministry must provide me with sufficient evidence to show that it has made a
reasonable effort to identify and locate records responsive to the request.
I have considered the representations provided to me by the Ministry and the appellant. I am
satisfied that the Ministry’s search for responsive records was reasonable in the circumstances.
PERSONAL INFORMATION
Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded
information about an identifiable individual. I find that the records relate to the appellant and,
therefore, contain his personal information.
- 2 -
[IPC Order P-1510/January 5, 1998]
The Ministry submits that part of Record 1 contains the personal information of an individual
other than the appellant. I have reviewed this part of the record carefully, and considered the
representations provided by the Ministry in this regard. However, I find that the information
contained in Record 1 is not information about this other individual, and it does not qualify as
this individual’s personal information. As the records do not contain the personal information of
any individual other than the appellant, sections 21 and 49(b) cannot apply.
Under section 49(a) of the Act, the Ministry has the discretion to deny access to an individual’s
own personal information in instances where certain exemptions would otherwise apply to that
information. Section 49(a) states:
A head may refuse to disclose to the individual to whom the information relates
personal information,
where section 12, 13, 14, 15, 16, 17, 18, 19, 20 or 22 would apply
to the disclosure of that personal information; [emphasis added]
The Ministry has exercised its discretion to refuse access to the records at issue under sections
13, 14(1)(e) and 20. In order to determine whether the exemption provided by section 49(a)
applies to the information in these records, I will first consider whether the exemptions in
sections 13, 14(1)(e) and 20 apply.
ADVICE OR RECOMMENDATIONS
The Ministry submits that Record 2, a two-page memorandum dated September 16, 1994, is
exempt under section 13(1) of the Act.
To qualify as “advice” or “recommendations”, the information contained in the records must
relate to a suggested course of action, which will ultimately be accepted or rejected by its
recipient during the deliberative process (Order 118).
While the information could qualify as a suggested course of action, in my view, it is too far
removed from the deliberative process of governmental decision and policy making to bring it
within the scope of section 13(1). Accordingly, I find that this record does not qualify for
exemption under this section of the Act.
LAW ENFORCEMENT/DANGER TO SAFETY OR HEALTH
The Ministry submits that Records 1, 2 and 3 are exempt under sections 14(1)(e) and 20 of the
Act.
Sections 14(1)(e) and 20, respectively, provide the Ministry with the discretion to refuse to
disclose a record that could reasonably be expected to “endanger the life or physical safety of a
law enforcement official or any other person” or to “seriously threaten the safety or health of an
individual.”
- 3 -
[IPC Order P-1510/January 5, 1998]
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Legislation
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Jan 05, 1998
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Type
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Order
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Judicial Review
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Institution's application allowed and IPC order quashed June 2, 1998
IPC's appeal dismissed by Ontario Court of Appeal October 22, 1999
Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor), [1999] O.J. No. 4560, 46 O.R. (3d) 395, 181 D.L.R. (4th) 603, 127 O.A.C. 173 (C.A.); affirming (June 2, 1998) Toronto Doc. 28/98 (Div. Ct.)
Court of Appeal Decision
Divisional Court Decision
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