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Document
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PO-1755
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File #
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PA-990151-1
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Institution/HIC
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Ministry of Solicitor General and Correctional Services
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Summary
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NATURE OF THE APPEAL: The appellant submitted a request to the Ministry of the Solicitor General and Correctional Services, now the Ministry of the Solicitor General (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ) for a copy of the complaint filed by a named Ontario Provincial Police (OPP) officer against him on December 1, 1998. The Ministry located the typed incident report in response to the request and provided partial access to it. The Ministry denied access to the remaining portions of this record on the basis of sections 14(2)(a) and 49(a) (law enforcement/discretion to refuse requester's own information) and 21(1) and 49(b) (invasion of privacy) with particular reference to section 21(3)(b) (information compiled and identifiable as part of an investigation into a possible violation of law). The appellant appealed the denial of access and indicated that he believed more records should exist. During mediation, the Ministry conducted a further search for responsive records and determined that there was no written complaint. The Ministry also located the investigating officer's handwritten notes and on August 6, 1999, provided access to all information in the notes except for names. Also during mediation, the appellant indicated that he was not seeking access to the names and/or addresses of individuals. On September 3, 1999, the Mediator sent out the Mediator's Report to the parties. This document sets out the request, the decision and the results of mediation. It also identifies the issues and exemptions remaining in dispute. The purpose of sending this document to the parties is to notify them of the issues that will be forwarded on to adjudication and to provide them with an opportunity to correct any factual errors, inconsistencies or omissions. On September 7, 1999, the appellant wrote to the Mediator and indicated that he "disagreed with your fact sheet, and such differences will be addressed at Notice of Inquiry, in my representations". The Mediator responded to this letter on September 14, 1999. She advised the appellant as follows: Please note that the Mediator's Report forms the basis of the adjudication file and it should be as accurate as possible. Before I can pass this file on to adjudication I must know, in particular, whether the issues remaining in dispute accurately reflect the information in this appeal which you are still seeking access to. If not, please indicate what else you are appealing. Any other comments about the Mediator's Report are welcome. She then advised the appellant that if she did not hear back from him by September 24, 1999, she would assume that no additional issues were to be added. The appellant did not respond to this letter. I sent a Notice of Inquiry to the appellant and the Ministry. In this Notice I indicated that as a result of the above exchange of correspondence, I am only prepared to consider the application of the exemptions in sections 14(2)(a)/49(a) and/or 21(3)(b)/49(b) to the information in the records which I have described below. The Ministry submitted representations in response to the Notice. I received a letter from the appellant indicating that he did not intend to submit representations. He also stated, however, that in his opinion, "when mediation fails, any mediation discussions [are] not relevant". I will address these comments below as a preliminary matter. RECORD: The record at issue consists of the following portions of the typed incident report: two lines of information under the heading "Complaint"; and the last sentence under the heading "History". PRELIMINARY MATTER: WHAT HAPPENS WHEN MEDIATION IS NOT COMPLETELY SUCCESSFUL? As I indicated above, the appellant takes the position that since mediation as a whole was not successful, none of the agreements made during this time are in effect. In other words, the appellant believes that I should consider nothing to have been resolved. I do not accept the appellant's position in this regard. When a file is placed in mediation, the task of the mediator is to attempt to identify and clarify issues and records, and to attempt to settle all or some of them. There is a recognition, however, that in many cases an appeal will not be completely mediated but will be narrowed to fewer issues or records. The general expectation is that the parties, having agreed to participate in the mediation process, will honour or adhere to agreements reached in mediation. In the absence of clearly articulated disagreement from a party regarding the results of mediation, the appeal will proceed to inquiry on that basis. In some cases, the mediator will engage in discussions with both parties in which a tentative settlement is reached dependent on one party taking a particular action. For example, an institution may agree to disclose a record to which an exemption has been applied on condition that the appellant agrees not to pursue another record. Or, an appellant may agree not to pursue certain records or issues on the condition that the institution does certain things. If the settlement dissolves because of inaction or because the other party does not agree to the offered terms, very often the fact and content of the settlement discussions are considered to be "mediation privileged" which means that any information pertaining to these discussions would not be made available to the adjudicator who will ultimately be determining the issues in the appeal. In other cases, a party may wish to provide some information to a mediator strictly in confidence in order to facilitate or advance the mediation process. However, there is a clear intention on the part of the individual providing the information that it not be made available to any other individual, including the adjudicator. Again, this information is "mediation privileged". In the circumstances of this appeal, the appellant agreed to narrow the issues and records in this appeal during mediation. There is no indication in the file that he considered his agreements to be contingent on full settlement of the appeal. Further, had any of his discussions been
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Legislation
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FIPPA
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21(3)(b)
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Section 51
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Subject Index
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Signed by
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Laurel Cropley
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Published
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Feb 14, 2000
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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