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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) a right to appeal any decision of a head under the Act to the Information and Privacy Commissioner. On January 5, 1990, the undersigned was appointed Assistant Commissioner and received a delegation of the power to conduct inquiries and make Orders under the Act . The facts of this case and the procedures employed in making this Order are as follows: 1. On December 19, 1988, the requester wrote to the Ministry of Labour (the "institution") seeking access to the following information: ...all documents, if any, prepared by the Office of the Worker Advisor of the Ministry of Labour, which contain a critique or analysis of, or opinion or comment on Bill 162, The Workers' Compensation Amendment Act, 1988 . 2. The institution responded on January 27, 1989, granting full access to one of the requested records, granting partial access to one record, and denying access to two records in their entirety. The institution claimed exemptions under subsections 12(1)(e) and 13(1) of the Act for all of the severed and withheld material. 3. On February 28, 1989, the requester appealed the institution's decision. Notice of the appeal was given to the appellant and the institution on March 8, 1989. 4. The records which are at issue in this appeal were obtained and reviewed by the Appeals Officer. The records can be described as follows: Record 1. Memorandum to the Minister of Labour from Odario Di Santo, Director, Office of the Worker Advisor dated November 2, 1988. This 6 page memorandum entitled "Response of the Office of the Worker Advisor to Bill 162" was withheld in its entirety. Record 2. Response of the Office of the Worker Advisor to the Proposed Amendments to the Workers' Compensation Act. Alec Farquhar, Manager, Special Services created the record in October 1988. This 21 page record was withheld in its entirety. Record 3. Background - Bill 162. This 81 page background report, which reviews the issues of reinstatement rights as well as economic and noneconomic loss, was disclosed with severances. Employees of the Office of the Worker Advisor prepared this report in June 1988. 5. The Appeals Officer contacted both the appellant and the institution in an attempt to mediate a settlement. However, settlement was not effected and the parties indicated that they were content to proceed to an inquiry. 6. Notice that an inquiry was being conducted was given to the institution and the appellant by letter dated July 24, 1989. Enclosed with the Notice of Inquiry was a copy of a report prepared 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 outlines the facts of the appeal, and sets out questions which paraphrase those sections of the Act which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. The Appeals Officer's Report indicates that the parties, in making representations, need not limit themselves to the questions set out in the Report. 7. On September 20, 1989, our office received a copy of additional information contained in Record 3 which the institution had decided to disclose to the appellant. 8. On February 7, 1990, a letter was sent by our office to a person who had made a request to the institution for records which appeared to include the records which are the subject of this appeal. The institution had not identified these records as being responsive to that person's request, and accordingly, had not included them in the list of records which it identified for the purposes of its response to that person's request. 9. On February 7, 1990, the institution acknowledged that the records which are the subject of this appeal also respond to that person's request. Accordingly, notice of this appeal was given to the person ("the affected person"), inviting representations with respect to the issues arising in this appeal. 10. Representations have been received from the appellant, the affected person and the institution. I have considered all representations in making my Order. In considering the specific issues arising in this appeal, I have been mindful that one of the purposes of the Act , as set out in subsection 1(a), is to provide a right of access to information under the control of institutions. The provision of this right is in accordance with the principles that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. It should also be noted that section 53 of the Act provides that the burden of proof that the record falls within one of the specified exemptions in this Act lies with the head of the institution (the "head"). The issues arising in this appeal are as follows: A. Whether the head properly applied the mandatory exemption provided by section 12 of the Act to the requested records. B. Whether the head properly applied the discretionary exemption provided by subsection 13(1) of the Act to the requested records. C. Whether the requested records could reasonably be severed, under subsection 10(2) of the Act , without disclosing the information that falls under an exemption. ISSUE A : Whether the head properly applied the mandatory exemption provided by section 12 of the Act to the requested records . The head has claimed that all three records are subject to exemption pursuant to subsection 12(1)(e) of the Act . Subsection 12(1)(e) provides as follows: A head shall refuse to disclose a record where the disclosure would reveal the substance of the deliberations of an Executive Council or its committees, including, ... (e) a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; ... It is the institution's position that all three records which are the
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