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Document
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PO-2211
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File #
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PA-030122-1
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Institution/HIC
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Ministry of the Environment
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Summary
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NATURE OF THE APPEAL: The Ministry of the Environment (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to: . . . all records and documents relating to the ministry's investigation of the Solid Waste Reduction Unit (SWARU) in Hamilton, dating from the time the Ministry became aware of concerns from the operator in October 2000 until the present. In addition, but not limited to this, I would specifically like these records to include the ministry's internal staff report that reviewed the entire SWARU investigation that was conducted by the Hamilton office. This staff report is referred to in a letter from Minister Chris Stockwell to Hamilton East MPP Dominic Agostino, dated November 27, 2002. The Ministry initially issued an interim fee estimate and decision on access. The requester paid the requested deposit and the Ministry issued a final decision granting partial access to the responsive records. Records were withheld, in whole or in part, on the basis that they were exempt from disclosure under the following exemptions contained in the Act : law enforcement report- section 14(2)(a); third party information - section 17(1); invasion of privacy - section 21(1); and information published or available - section 22(a). The Ministry also indicated that a twelve-page internal review of the investigator's report fell outside the ambit of the Act due to the operation of section 65(6)3 of the Act . The requester, now the appellant, appealed the Ministry's decision. During the mediation stage of the appeal, the appellant agreed to limit the scope of his request to include only the 11-page investigator's report dated June 20, 2002 and the 12-page internal review document dated October 11, 2002 referred to in the request. Accordingly, only the application of sections 14(2)(a) and 21(1) remain at issue with respect to the investigator's report. In addition, the Ministry maintains that the internal review document falls outside the scope of the Act under section 65(6)3. As no further mediation was possible, the appeal was moved into the adjudication stage. I decided to seek the representations of the Ministry initially. The Ministry submitted representations in response to the Notice of Inquiry, the non-confidential portions of which were shared with the appellant, along with a Notice of Inquiry. The appellant also submitted representations, which were shared, in their entirety, with the Ministry. In his representations, the appellant raises the possible application of the "public interest override" provision in section 23 of the Act . I then solicited and received additional representations from the Ministry, by way of reply. RECORDS: The records at issue consist of an 11-page investigator's report dated June 20, 2002 and a 12-page internal review document dated October 11, 2002. DISCUSSION: LABOUR RELATIONS AND EMPLOYMENT RECORDS The Ministry submits that, as a result of the operation of section 65(6)3, the internal review document falls outside the scope of the Act . General Principles Section 65(6)3 states: 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: Meetings, consultations, discussions or communications about labour relations or employment related matters in which the institution has an interest. If section 65(6) applies to the records, and none of the exceptions found in section 65(7) applies, the records are excluded from the scope of the Act . The term "in relation to" in section 65(6) means "for the purpose of, as a result of, or substantially connected to" [Order P-1223]. The term "labour relations" refers to the collective bargaining relationship between an institution and its employees, as governed by collective bargaining legislation, or to analogous relationships [Order PO-2157, Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner) , [2003] O.J. No. 4123 (C.A.)]. The term "employment of a person" refers to the relationship between an employer and an employee. The term "employment-related matters" refers to human resources or staff relations issues arising from the relationship between an employer and employees that do not arise out of a collective bargaining relationship [Order PO-2157]. If section 65(6) applied at the time the record was collected, prepared, maintained or used, it does not cease to apply at a later date [ Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (2001), 55 O.R. (3d) 355 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 507]. Section 65(6) may apply where the institution that received the request is not the same institution that originally "collected, prepared, maintained or used" the records, even where the original institution is an institution under the Municipal Freedom of Information and Protection of Privacy Act [Orders P-1560, PO-2106]. Section 65(6)3: matters in which the institution has an interest Introduction For section 65(6)3 to apply, the Ministry must establish that: the records were collected, prepared, maintained or used by an institution or on its behalf; 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. Part 1: collected, prepared, maintained or used The Ministry submits that the internal review document was: . . . collected and prepared by [a named individual], Director of the Investigations and Enforcement Branch with the assistance of his program manager [another named individual] for the Acting Assistant Deputy Minister of Operations Division [a third named individual]. . . . The local media, including [the newspaper employing the appellant] reported that the local police department was critical of the investigation carried out by [a named investigator] of the Ministry. Given the concerns, the Acting Assistant Deputy Minister found it prudent to conduct an internal review of the investigation and determine if the criticism was warranted. The [Acting Assistant Deputy Minister] asked that [the Director of the Investigations and Enforcement Branch] conduct the internal review of [the investigator's] investigation to determine: What is the quality of the investigation? Has the investigator reached a reasonable conclusion with his/her decision on this case? Are there any areas that merit special consideration for improvements? . . . In summary, the Ministry collected the information, prepared the report and used it to evaluate the adequacy of the investigation including performance of the investigator. In the Minis
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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Dec 03, 2003
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Type
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Order
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