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Document
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P-24
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File #
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880006
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Institution/HIC
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Ministry of the Attorney General
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Summary
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Order are as follows: On November 20, 1987, the Ministry of the Attorney General (the "institution") received a request for access to "...files on policies, practices, proposals, reports on 'whistleblowers' - their protection, prosecution and assessment of media, union, political and other group discussions of such public employees". The requester asked the institution to "...provide this data for viewing in Ottawa as it becomes available." Although the request predated the proclamation of the Act it was processed as a formal request under the Act . By letter dated February 1, 1988, the Freedom of Information and Privacy Co-ordinator for the institution advised the requester that the institution was prepared to provide access to some but not all records being requested. The requester was sent copies of 'reports' or 'proposals' received from the public on the treatment of whistleblowers. The requester was refused access to the following records for the reasons indicated: (a) A copy of the report of the Ontario Law Reform Commission on Political Activity by Crown Employees was denied under subsection 22(a) of the Act on the grounds that the report was already available to the public. The requester was informed that he could order a copy of the report from the Ontario Government Bookstore, and was provided with the Bookstore's toll-free number. (b) Clippings of various articles from newspapers and magazines on the subject of whistleblowers were also denied under subsection 22(a) of the Act . (c) Working documents for a policy submission to Cabinet on whistleblowers in the public sector were denied under subsection 12(1)(b) of the Act (d) A briefing note to the Attorney General on the status of policy development on the subject was denied under subsection 12(1)(e) of the Act (e) Notes and interoffice memoranda used in preparing the documents referred to under (c) and (d), above, were denied under subsection 13(1) of the Act . The requester appealed the institution's decision by letter to me dated February 8, 1988. He stated that the head had applied a "...blanket use of sections 12(1)(b), 12(1)(e) and 13(1) as means to deny [him] any information on this subject." He argued that "...[t]his is stretching and misusing these exemptions particularly ironic given the subject matter - where a Section 11 public interest override clearly applies and where all records can hardly fall within those two exemptions." The records in issue were obtained from the institution and reviewed by my staff during the course of mediation/ investigation. On May 11 and May 30, 1988, I sent notices to the appellant and the institution stating that I was conducting an inquiry to review the decision of the head, and inviting each of them to submit written representations. I have received and reviewed both parties' representations. Before identifying and addressing the issues covered by this Order, I want to deal with two preliminary matters raised at various points during the appeal process. In the February 1, 1988, response to the original request, the institution advised the requester that it had copies of correspondence between the Premier and a member of the public concerning whistleblowing. Because the requester did not include "correspondence" in his request, the institution took the position that it was not covered by the request, and advised him that a separate request could be addressed to the Cabinet Office if these records were of interest. The appellant makes no reference to this issue in his appeal and it is therefore excluded from the scope of my Order. The requester's February 8, 1988, letter appealing the head's decision states that the "...section 11 public interest override clearly applies..." to the requested records. Subsequent representations received from the appellant make no further mention of section 11, and restrict discussions of a public interest override to section 23. It is clear that section 11 has no application to the circumstances of this appeal and my Order contains no discussion of that section. Although the head's February 1, 1988, response covers decisions with respect to several records, the requester appealed only those decisions relating to the records covered by the section 12 and 13 exemptions claimed by the institution. My Order is therefore restricted to the proper treatment of these records. The issues arising from this appeal are as follows: A. Whether the records in question fall within the subsection 13(1) exemption claimed by the institution, and if so, whether any of the exceptions outlined in subsection 13(2) apply to require the head to disclose the records, or parts thereof. B. Whether the records in question fall within the subsections 12(1)(b) and 12(1)(e) mandatory exemptions. C. Whether the head has a duty under subsection 12(2)(b) to seek the consent of the Executive Council before denying access to a record where an exemption is being claimed under subsection 12(1). D. Whether the severability requirements of subsection 10(2) apply to any of the records in question. E. Whether there is a compelling public interest in disclosure of the records exempted under subsection 13(1) that clearly outweighs the purpose of the exemption, as provided by section 23 of the Act . ISSUE A: Whether the records in question fall within the subsection 13(1) exemption claimed by the institution, and if so, whether any of the exceptions outlined in subsection 13(2) apply to require the head to disclose the records, or parts thereof. Subsection 13(1) of the Act provides: A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an instituti
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Legislation
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FIPPA
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10(2)
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12(2)(b)
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13(2)
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13(2)(a)
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Section 23
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Subject Index
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Signed by
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Sidney Linden
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Published
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Oct 21, 1988
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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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