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Document
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P-1260
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File #
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P-9600227
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Institution/HIC
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Ministry of the Solicitor General and Correctional Services
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Summary
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NATURE OF THE APPEAL: The appellant is an employee of the Ministry of the Solicitor General and Correctional Services (the Ministry). She made complaints about the conduct of her supervisor, who she believed was undermining her professional credibility and acting in a manner which constituted harassment. In response to these complaints, the Ministry appointed an investigator to review the situation and submit a report to the Ministry. This investigation was completed, and the Ministry provided the appellant with a letter outlining the recommendations of the investigator. The Ministry also offered the appellant the opportunity to meet with the investigator to discuss her concerns about certain elements of the investigation. In response to one of the recommendations included in the investigation report, the Ministry conducted a Health Care review of the correctional facility where the appellant works. The results of this review were provided to all relevant staff at the facility, who were given an opportunity to provide their comments. The Ministry provided the appellant with a letter stating the outcome of this review. The appellant submitted a request under the Freedom of Information and Protection of Privacy Act (the Act ) for records relating to the investigation and subsequent review. She specifically wanted to know what investigative measures were taken in each case, and the findings and recommendations of the two investigators. The Ministry identified 66 pages of responsive records. They consist of a chronological summary of events surrounding the investigation and the review, the investigation report, memoranda from the investigator and Ministry staff regarding the investigation, the review report and related memoranda, and a summary of the staff comments received in response to the review. The Ministry denied access to all responsive records, claiming that they fall within the parameters of section 65(6) of the Act , and therefore outside the scope of the Act . The appellant appealed the Ministry's decision. This office sent a Notice of Inquiry to the appellant and the Ministry, seeking representations on the jurisdictional issue raised by sections 65(6) and (7). Representations were received from both parties. DISCUSSION: The only issue in this appeal is whether the records fall within the scope of sections 65(6) and (7) of the Act . These provisions read: (6) 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: 1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution. 2. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding. 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. (7) This Act applies to the following records: 1. An agreement between an institution and a trade union. 2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment- related matters. 3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees. 4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment. The interpretation of sections 65(6) and (7) is a preliminary issue which goes to the Commissioner's jurisdiction to continue an inquiry. Section 65(6) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in section 65(7) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner's jurisdiction. The appellant states that because the investigation was carried out in response to her complaint, she should have access to all of the information which relates to it. Although the appellant does not specifically say so, she appears to believe that she should be given access to the records because they relate to matters in which she has a personal interest and include her personal information. In Order P-1242, I made the following comments on the effect of section 65(6) when a record might contain the appellant's personal information. The wording of section 65(6) does not distinguish records on the basis of whether they contain personal information. In fact, the types of records described in both sections 65(6) and (7) would by their very nature frequently contain personal information. The appellant also states that the matter does not involve labour relations because she did not choose to involve the union in the complaint. I will address the issue of "labour relations" in my discussion of section 65(6). Section 65(6)3 In Order P-1242, I found that in order to fall within the scope of paragraph 3 of section 65(6), the Ministry must establish that: 1. the record was collected, prepared, maintained or used by the Ministry or on its behalf; and 2. this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and 3. these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the Ministry has an interest. 1. Were the records collected, prepared, maintained or used by the Ministry or on its behalf? The Ministry submits that the records were: prepared, maintained and used by the Ministry as a result of and for the purpose of responding to the appellant's allegations of professional and personal discreditation and wor
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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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Sep 13, 1996
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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