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Document
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PO-2157
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File #
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PA-030108-1
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Institution/HIC
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Ministry of Public Safety and Security
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Summary
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NATURE OF THE APPEAL: This is an appeal from a decision of the Ministry of Public Safety and Security (the Ministry), made under the Freedom of Information and Protection of Privacy Act (the Act ). As background, the Office of Child and Family Service Advocacy (OCFSA) is responsible for protecting the rights and interests of children, youth and families receiving or seeking services provided by the Ministry, the Ministry of Community, Family and Children's Services (MCFCS) and the Ministry of Education. The duties of OCFSA Advocacy Officers, as described in the Ministry's representations, include mediating complaints, negotiating with service providers, government officials and the community, identifying systemic problems affecting youth, and advising ministries of service delivery gaps. On March 13, 2002, members of the Ontario Public Service Employees Union (OPSEU) went on strike, including employees of young offender facilities under the jurisdiction of the Ministry. During the labour dispute, staff from the OCFSA visited these Ministry facilities and reported on the conditions found in them. The labour dispute ended on May 5, 2002. The requester (now the appellant) made a request to the MCFCS for access to certain reviews completed by the OCFSA from January 1, 1999 to the date of the request. During the course of responding to the request, the MCFCS decided that the Ministry had a greater interest in 24 of the records at issue. The MCFCS transferred the request for access to these 24 records to the Ministry, relying on the provisions of section 25(2) of the Act (transfer of request). The MCFCS decided to release other records to the appellant and, as well, denied access to some on the basis of certain exemptions under the Act . The appellant appealed from the decision of the MCFCS to deny access to some records and also appealed from its decision to transfer part of the request to the Ministry. That appeal is No. PA-020329-2. After receiving notification that part of the request had been transferred to it by the MCFCS, the Ministry sent a decision to the appellant denying access to the 24 records, relying on section 65(6) (labour relations and employment information) of the Act . The Ministry takes the position that the records are excluded from the scope of the Act because of the application of section 65(6). The appellant appealed from this decision and this file (PA-030108-1) was opened. I reviewed both appeal files, and decided to conduct my inquiry into Appeal No. PA-030108-1 first, as I concluded that the disposition of this appeal may have an impact on the disposition of Appeal No. PA-020329-2. I sent a Notice of Inquiry to the Ministry initially, inviting it to submit representations on the facts and issues raised by this appeal. These representations were shared with the appellant, who has also provided submissions. CONCLUSION: Under section 65(6), the records at issue are excluded from the scope of the Act . RECORDS: There are 24 records at issue, consisting of institutional review reports prepared by the Office of the Child and Family Service Advocacy during March to May 2002 in relation to a number of youth facilities under the jurisdiction of the Ministry. The reports were prepared during the course of a labour dispute between the Ontario Public Service Employees Union (OPSEU) and the provincial government. DISCUSSION: Introduction The only issue to be determined in this appeal is whether section 65(6) applies. Section 65(6) is record-specific and fact-specific. If section 65(6) applies, and none of the exceptions found in section 65(7) apply, section 65(6) has the effect of excluding the records from the scope of the Act . In its representations, the Ministry clarifies that it relies on section 65(6)3. Section 65(6)3 provides: Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following: 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. In order for the records to be excluded from the Act under section 65(6), the Ministry must establish that: the records were collected, prepared, maintained or used by an institution or on its behalf; and this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the institution has an interest. The Ministry submits that its management staff collected, maintained and used the institutional review reports in relation to meetings, consultations, discussions and communications regarding the 2002 OPSEU strike and the effect of this strike on the care of youth residing at Ministry young offender secure custody facilities. These meetings, consultations, discussions and communications took place in the context of the labour dispute to address concerns arising from labour relations and/or employment-related matters related to the circumstances of the OPSEU strike. The Ministry submits that the context of the records reflects labour relations issues and employment-related matters. Further, the Ministry submits that these labour relations and employment-related matters are ones in which it has an interest. The Ministry states that the records continue to be excluded from the Act despite the conclusion of the strike. The Ministry relies on the findings in a privacy complaint investigation, PC-200022, concerning video surveillance of picket line activity during the OPSEU strike. In her representations, the appellant takes issue with the purported transfer of part of her request to the Ministry. It is unnecessary for me to consider that issue here, as that is a matter to be determined in Appeal No. PA-020329-1. The appellant states that she is not seeking employment or labour related information, but rather, information concerning the conditions under which children in these facilities were living during the specific period. She states that the Ministry's decision to deny access is unreasonable because it is a "block denial", not record or fact specific. The appellant states that members of the public have a right to information concerning the well being of children in the state's care whether or not there is a labour dispute. The state has a responsibility to ensure that children are properly cared for irrespective of the circumstances. The appellant asserts that it is in the public interest to know to what conditions these children may have been subjected. She states that the intent of the Act is not being addressed in denying access to these 24 records. Part One - collected, prepared, maintained or used I am satisfied that the Ministry has established Part One of the three requirements for the application of section 65(6)3. Although it did not prepare the records, it did collect and use them. Part Tw
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Legislation
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Subject Index
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Signed by
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Sherry Liang
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Published
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Jun 27, 2003
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Type
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Order
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