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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 personal information under subsection 48(1) a right to appeal any decision of a head under the Act to the Information and Privacy Commissioner. The facts of this appeal and the procedures employed in making this Order are as follows: 1. On March 28, 1988, the requester wrote to the Ministry of Labour (the "institution") seeking access to records respecting: (...my complaint against the Ontario Human Rights Commission - first letter to the Minister of Labour sent December 1st, 1985). - Report submitted to the Minister of Labour by Commission staff regarding my complaint. - Correspondence, memorandum and any other documentary materiel (sic) pertaining to the matter preceding and after December 1st, 1985. 2. On April 6, 1988, the Freedom of Information and Privacy Co-ordinator for the institution (the "Co-ordinator") wrote to the requester advising him that the request had been forwarded to the Ontario Human Rights Commission. 3. By letter dated April 12, 1988, the requester clarified his request by advising the institution that the former Minister of Labour wrote him a letter dated July 24, 1986 indicating that he had asked for and received a report on the requester's "allegations" respecting the Ontario Human Rights Commission. In his letter, the requester again pointed out that he was seeking "...access to the record held by the Ministry of Labour on the matter, including the said report the Minister ordered and received and any prior and subsequent document material related to the matter." 4. On April 26, 1988, the institution granted partial access by providing: ...copies of the correspondence contained in the files of my predecessor, the Honourable William Wrye. Excluded from the file, pursuant to section 13 of the Act are records which would reveal advice and recommendations to the Minister. Material that is background to correspondence is not normally retained in the Minister's file, but is usually returned to the originating program. A report such as the one you are requesting and which is referred to in Mr. Wrye's letter to you dated July 24, 1986, in accordance with this normal practice is not contained in this Ministry's files. 5. On June 2, 1988, the requester wrote to me appealing the decision of the institution, and I gave notice of the appeal to the institution. 6. The records which had been withheld by the institution were obtained and reviewed by an Appeals Officer from my staff. The appellant provided my office with a copy of a letter which he had sent to the Minister of Labour, among others, in December, 1985 and which was not included in the Minister's file. 7. Efforts were made by the Appeals Officer and the parties to settle the matter, however a settlement was not achieved as both parties retained their respective positions. 8. On January 13, 1989 and January 16, 1989 I sent notice to the appellant and the institution respectively that I was conducting an inquiry to review the decision of the head. Enclosed with this letter 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 their representations to the Commissioner, need not limit themselves to the questions set out in the report. 9. By letters dated January 24, 1989, I invited the parties to submit written representations to me on the issues arising in the appeal. 10. Representations were received from both parties and I have considered them in making my Order. 11. Following the submission of representations, the institution decided to release two of the records in dispute to the appellant on March 7, 1989. The issues arising in this appeal are as follows: A. Whether any of the records in question fall within the discretionary exemption provided by subsection 13(1) of the Act , and, if so, whether any of the exceptions listed in subsection 13(2) apply to require the head to disclose any of the records, or parts thereof. B. If the answer if Issue A is in the affirmative, whether the severability requirements of subsection 10(2) of the Act apply to any of the records at issue in this appeal. C. Whether the institution has taken reasonable steps to locate the records requested by the appellant. The purposes of the Act as set out in section 1 should be noted at the outset. Subsection 1(a) provides the right of access to information under the control of institutions 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. Subsection 1(b) sets out the counter-balancing privacy protection purpose of the Act . The subsection provides that the Act should protect the privacy of individuals with respect to personal information about themselves held by institutions and should provide individuals with a right of access to their own personal information. It should also be noted that section 53 of the Act provides that the burden of proof that the record or part of the record falls within one of the specified exemptions of the Act lies upon the head. Initially there was some confusion as to what records were at issue in the appeal. In accordance with the usual procedure whenever an appeal is filed in my office, the Appeals Officer assigned to this case asked the Co-ordinator to provide him with copies of all the relevant records. In response, the Co-ordinator forwarded a package containing two groups of records: (1) a file folder marked "COPY OF MINISTER'S FILE" containing "...all records in the possession of the Ministry with respect to [the appellant's] ongoing correspondence with the former Minister of Labour"; and (2) a separate file of records containing "...all correspondence relating to [the appellant's] request under the Freedom of Information and Protection of Privacy Act , including [the appellant's] original request and the Ministry's response with all attachments." In order to determine which records had been provided to the appellant and which had been exempted from disclosure, the Appeals Officer telephoned a representative of the institution and was advised that all of the second group of records had been disclosed to the appellant, and only the "Minister's File" had been withheld. However, there was considerable duplication in these two groups of records, so the Appeals Officer identified and numbered the seven records contained in the "Minister's File" which had not been previously disclosed to the appellant. This numbering of records was outlined to the institution on January 16, 1989, together with the Appeals Officer's Report, and these records form the basis for this appeal. As outlined earlier in this Order, two of these seven records were released by the institution to the appellant on March 7, 1989. ISSUE A : Whether any of the records in question fall within the discretionary exemption provided by subsection 13(1) of the Act , and,
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