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Document
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PO-2013-I
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File #
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PA-010194-2
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Institution/HIC
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Ministry of Public Safety and Security (Formerly the Ministry of the Solicitor General)
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Summary
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BACKGROUND AND NATURE OF THE APPEAL: On August 28, 1998 I issued Order P-1608. On page 6 of that order I made the following statement: In response to my request for additional details regarding [the Deputy Minister's] affidavit, I received subsequent correspondence from the Deputy Minister regarding searches of the files relating to the named individual. The Deputy Minister advised me that there were a total of 147 records contained in the four files of the named individual …. The Ministry of Public Safety and Security (formerly the Ministry of the Solicitor General) (the Ministry), which was also the institution in Order P-1608, received a subsequent request under the Freedom of Information and Protection of Privacy Act (the Act ), from a different requester, for access to "the 147 records referred to on page 6 [of Order P-1608]." The Ministry located the responsive records, which actually consisted of 163 rather than 147 records. The requester was provided with access to a number of these records, in whole or in part, and denied access to the remaining records or partial records on the basis of one or more of the following exemptions contained in the Act : section 12(1) (Cabinet records) section 13(1) (advice or recommendations) section 14(1) (law enforcement) section 15 (relations with other governments) section 18(1) (economic and other interests of Ontario) section 19 (solicitor-client privilege), and section 21(1) (personal privacy). The requester, now the appellant, appealed the Ministry's decision. During mediation, the Ministry issued a revised decision letter to the appellant, stating that it was transferring 44 records to the Minister Responsible for Native Affairs and three records to the Ministry of the Attorney General, on the basis that "those ministries have custody and control of the responsive records." The appellant did not appeal the Ministry's transfer decision, and these 47 records are not at issue in this appeal. Also during mediation, the Ministry provided the appellant with an index describing the remaining 116 responsive records and identifying the relevant exemption claims. The Ministry also agreed to grant access to additional records or partial records, and the appellant, in turn, advised that he was no longer pursuing access to certain of the records. Mediation did not resolve the issues pertaining to the remaining records, and the file was transferred to the adjudication stage. I decided to send a Notice of Inquiry initially to the Ministry, setting out the facts and issues and providing the Ministry with the opportunity to provide written representations. In the cover letter accompanying the Notice, I stated: The representations you provide to this office may be shared with the appellant, unless there is an overriding confidentiality concern. The procedure for the submitting and sharing of representations is set out in the attached document entitled Inquiry Procedure at the Adjudication Stage . Please refer to this document when preparing your representations. The attached document summarizes the policies and procedures contained in Practice Direction 7 that was implemented in 1999 and subsequently included in this office's Code of Procedure , published in August 2000. The Ministry provided written representations in response to the Notice. The representations dealt with a number of issues identified in the Notice, and included a one-paragraph statement regarding the sharing of representations with the appellant. Upon receipt of the representations, I reviewed them to ascertain whether further representations from the appellant were necessary. After completing my review, I determined that the appeal should proceed to the next stage of the inquiry process, in order to address fairness considerations and to enable the appellant to respond to the position put forward by the Ministry on the issues. I also determined that, with certain severances necessary in order to address the confidentiality criteria outlined in Practice Direction 7 , much of the Ministry's representations could be shared with the appellant. A representative of this office advised the Ministry of my position on the sharing issue and, following subsequent discussions, I identified for the Ministry the portions that I felt should be treated confidentially, in accordance with Practice Direction 7 . I received a subsequent letter from the Ministry on April 30, 2002, which stated: "As you know, the Ministry objects to [its representations] being released." The letter goes on to identify six specific portions of the representations that it has "particular concerns" about sharing. The rest of the Ministry's April 30 letter deals only with the six specific portions. DISCUSSION: Sharing of representations procedure The Inquiry Procedure at the Inquiry Stage outline and Practice Direction 7 provide a detailed description of the relevant procedures with regard to the sharing of representations. Practice Direction 7 states: General The Adjudicator may provide representations received from a party to the other party or parties, unless the Adjudicator decides that some or all of the representations should be withheld. Request to withhold representations A party providing representations shall indicate clearly and in detail, in its representations, which information in its representations, if any, the party wishes the Adjudicator to withhold from the other party or parties. A party seeking to have the Adjudicator withhold information in its representations from the other party or parties shall explain clearly and in detail the reasons for its request, with specific reference to the following criteria. Criteria for withholding representations The Adjudicator may withhold information contained in a party's representations where: (a) disclosure of the information would reveal the substance of a record claimed to be exempt; (b) the information would be exempt if contained in a record subject to the Act [or the Municipal Freedom of Information and Protection of Privacy Act]; or (c) the information should not be disclosed to the other party for another reason. For the purposes of section (c) above, the Adjudicator will apply the following test: (i) the party communicated the information to the IPC in a confidence that it would not be disclosed to the other party; (ii) Confidentiality is essential to the full and satisfactory maintenance of the relation between the IPC and the party; (iii) the relation must be one which in the opinion of the community ought to be diligently fostered; (iv) the injury to the relation that would result from the disclosure of the information is greater than the benefit thereby gained for the correct disposal of the litigation. The Ministry's confidentialit
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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May 02, 2002
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Type
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Order – Interim
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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