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Document
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P-1014
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File #
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P-9400807
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Institution/HIC
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Ministry of the Attorney General
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The appellant is an employee of the Ministry of the Attorney General (the Ministry). During his employment with the Ministry, a harassment complaint was made against him. As a result of the complaint, the Ministry conducted an investigation under the Ontario Public Service Workplace Discrimination and Harassment Prevention (WDHP) policy. The person who made the complaint (the complainant) made two allegations concerning workplace harassment, namely: (1) that the appellant harassed him in the course of his employment over a period of approximately four years as a result of the complainant's sexual orientation, and (2) that the appellant harassed him on a particular occasion by means of comments made by the appellant at that time. In accordance with the WDHP policy, a report outlining the investigator's findings was submitted to the Deputy Attorney General. The report concluded that the first allegation had not been substantiated, but that the second allegation was substantiated. The Deputy Attorney General agreed with these findings and placed a letter of reprimand in the appellant's personnel file, with a three year sunset clause. The appellant submitted a request to the Ministry under the Act for all information gathered by the investigator as well as all statements given by persons interviewed in connection with the investigation. The Ministry granted partial access to the requested information. The Ministry denied access to the records at issue in this appeal on the basis of the following exemptions in the Act : invasion of privacy - section 49(b) discretion to refuse requester's own information - section 49(a), with references to sections 13(1) (advice or recommendations) and 18(1)(e) (economic and other interests). The Ministry also withheld some information on the basis that it is not responsive to the request. A Notice of Inquiry was sent to the appellant and the Ministry. This Notice was also sent to the individuals interviewed in the course of the investigation (the witnesses) as affected persons. Representations were received from the appellant, the Ministry, and six of the witnesses. A Supplementary Notice of Inquiry was sent to the Ministry and the appellant to seek clarification of a factual nature arising from their initial submissions. At this time, two additional affected persons (the complainant and the investigator) were notified of this appeal and invited to submit representations. In response to these notices, representations were received from the Ministry, the appellant and the complainant. The records at issue consist of the following: first and second drafts of the WDHP investigator's report, including copies with handwritten notations parts of the final WDHP report witness statements, in whole or in part (parts of some of these were disclosed and the disclosed parts are therefore not at issue) lists of witnesses confidential background information sheets electronic mail (e-mail) printouts, letters, voice-mail transcripts and memos concerning the investigation (parts of some of these were disclosed and the disclosed parts are therefore not at issue) briefing notes and draft briefing notes handwritten notes. In this order, I will use the record numbers assigned by the Ministry (as used in the indices previously provided to the appellant and the complainant). The records at issue include a number of duplicate copies. In the case of exact duplicates, I will only consider the copy of the record with the lowest record number. Record 75 is an exact duplicate of Record 24. Records 17 and 18 are exact duplicates of Record 16. Record 16a is an exact duplicate of Record 12b. Accordingly, this order will consider Records 24, 16 and 12b, and will not deal with Records 75, 17, 18 and 16a. Record 26 is an exact duplicate of Record 16b, except that Record 16b bears the notation "Appendix 'B'" and records the date of receipt. In my view, these differences are insignificant, and in any event, the additional information is included on the copy of the record I will consider, namely Record 16b. Accordingly, this order will not deal with Record 26. PRELIMINARY ISSUES: LATE RAISING OF DISCRETIONARY EXEMPTION In its initial representations in response to the Notice of Inquiry, the Ministry seeks to claim the exemption relating to solicitor-client privilege provided by section 19 of the Act , with respect to fourteen of the records at issue. This exemption was not previously claimed for any records in connection with this request. As part of its efforts to expedite the processing of access appeals and in order to sensitize institutions about the prejudice which accrues to appellants when discretionary exemptions are not applied promptly, the Commissioner's office issued an IPC Practices publication in January 1993, entitled "Raising Discretionary Exemptions During an Appeal". This document, which was sent to all provincial and municipal institutions, indicates that: The IPC has found that institutions frequently raise new discretionary exemptions after the appeal process is underway. When this happens, the appellant must be informed and given the opportunity to comment on the applicability of the new exemption claims. This additional step prolongs the appeal process, particularly when new discretionary exemptions are raised at the later stages of an appeal. Effective March 1, 1993, the IPC will permit institutions to raise new discretionary exemptions only within a limited time frame - up to 35 days after the appeal has been opened. The initial notice sent out by the IPC will specify the deadline for claiming any new discretionary exemptions. The objective of this policy is to provide 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 appellant prejudiced. In accordance with this policy, the Confirmation of Appeal sent to the Ministry when this appeal was filed, indicated that the institution had 35 days from the date of the Notice (that is, until February 2, 1995) to claim any additional discretionary exempt
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Legislation
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FIPPA
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13(2)(a)
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18(1)(e)
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21(2)(a)
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21(2)(d)
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21(2)(e)
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21(2)(f)
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21(2)(g)
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21(2)(h)
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21(2)(i)
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21(3)(a)
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21(3)(d)
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21(3)(f)
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21(3)(g)
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21(3)(h)
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47(1)
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49(b)
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Section 19
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Section 42
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13(1)
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Subject Index
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Signed by
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John Higgins
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Published
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Oct 06, 1995
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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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