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Document
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P-1631
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File #
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P_9800106
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Institution/HIC
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Ministry of Natural Resources
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Summary
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NATURE OF THE APPEAL: A requester made two identical, simultaneous requests to the Ministry of Natural Resources and the Ministry of the Attorney General under the under the Freedom of Information and Protection of Privacy Act (the Act ). The requests were for records relating to the settlement of litigation involving a named individual, the Village of Grand Bend and the province of Ontario, and transactions arising from the settlement. Specifically, the requester sought access to: 1. An unedited copy of the "Minutes of Settlement" ... outlining all financial and other obligations of parties to the share-purchase and land-transfer agreement; 2. A complete breakdown of the costs incurred by the Ontario government, if not specifically set out in the "Minutes of Settlement", from its agreed financial contribution - through [the Ministry of the Attorney General, the Ministry of Natural Resources] or any other provincial ministry - to end the litigation ... through the share-purchase and land transfer agreement(s); 3. Copies of all minutes, memos and other records, to which the province was a direct or indirect party, related to negotiations and agreements to end the litigation ... and to resolve it with the ... share-purchase and land transfer. Since the Ministry of the Attorney General considered that the Ministry of Natural Resources (the Ministry) had a greater interest in the records, the Ministry of the Attorney General transferred the request it had received to the Ministry, pursuant to sections 25(2) and (3) of the Act . The Ministry identified 137 records responsive to the request and, pursuant to section 28 of the Act , notified seven individuals whose interests may be affected (the affected parties) and sought their representations regarding disclosure of the records. Two of the affected parties objected to disclosure, a third took no position and the four others did not respond. The Ministry then issued a decision to the appellant granting access in full to 46 records, partial access to 15 records and denying access in full to the remaining 76 records. The Ministry included a detailed index of the records with its decision. For those records to which access was denied either in whole or in part, the Ministry claimed one or more of the following exemptions contained in the Act : • Cabinet records - sections 12(1) • advice or recommendations - section 13(1) • third party information - section 17(1) • solicitor-client privilege - section 19 • invasion of privacy - section 21 The requester (now the appellant) appealed the decision to deny access to records in full or in part, and claimed that there was a compelling public interest in disclosure of the records pursuant to section 23 of the Act . There are 91 records at issue in this appeal (76 in full and 15 in part). The records consist of e-mail communications, notes from meetings, draft press releases, briefing notes, minutes of settlement, a share purchase agreement and numerous other records relating to the settlement and related transactions. This office sent a Notice of Inquiry to the Ministry, the appellant and the affected parties. Representations were received from the Ministry, the appellant and two of the affected parties. PRELIMINARY ISSUE: LATE RAISING OF DISCRETIONARY EXEMPTIONS On April 14, 1998, the Commissioner's office provided the Ministry with a Confirmation of Appeal indicating that an appeal from the Ministry's decision had been received. The Confirmation also indicated that, based on a policy adopted by the Commissioner's office, the Ministry had 35 days from the date of the confirmation, until May 19, 1998, to raise any new discretionary exemptions not originally claimed in its decision letter. The Ministry did not raise any additional exemptions during this 35-day period. The policy referred to in the Confirmation of Appeal was initially brought to the attention of the Ministry in the form of a publication entitled "IPC Practices: Raising Discretionary Exemptions During an Appeal" which was sent by the Commissioner's office to all provincial and municipal institutions in January of 1993. In the Ministry's representations, dated July 13, 1998, it indicated for the first time that it was claiming the section 19 exemption for Records 1, 2, 6, 7, 8, 11, 12, 16, 32, 33 (e-mail communications) and 141 (index of settlement documents). The Ministry, however, has not provided me with any explanation as to the reasons why it did not claim the application of section 19 to these records before the expiration of the 35-day period or why I should consider the application of this exemption to these records at this late stage of the appeal. Previous orders issued by the Commissioner's office have held that the Commissioner and her delegates have the power to control the manner in which the inquiry process is undertaken. This includes the authority to establish time limits for the receipt of representations and to limit the time frame during which an institution can raise new discretionary exemptions not originally cited in its decision letter, subject to a consideration of the particular circumstances of each case. The objective of the 35-day policy is to provide government institutions with a window of opportunity to raise new discretionary exemptions, but not at a stage in the appeal where the integrity of the process is compromised or the interests of the parties in a timely adjudication of the issues in the appeal are prejudiced. This approach to the application of the policy was upheld by the Divisional Court in the case of Ontario (Ministry of Consumer and Commercial Relations) v. Fineberg (21 December 1995), Toronto Doc. 220/89. In this appeal, the Ministry initially claimed the exemption in question, section 19, but only for other records. The exemptions claimed for each record to which access was denied were indicated on the index the Ministry provided to the appellant and, subsequently, to this office. Section 19 was not indicated on this index for the above-noted records. The Ministry now seeks to extend the application of this exemption to include these records. In adjudicating the issue of whether to allow the Ministry to claim this discretionary e
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Legislation
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FIPPA
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21(1)(f)
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21(2)(a)
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21(3)(f)
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Section 19
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Section 23
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13(1)
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17(1)
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Subject Index
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Signed by
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David Goodis
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Published
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Dec 14, 1998
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Type
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Order
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