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Document
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P-1498
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File #
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P_9700178
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Institution/HIC
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Ministry of the Solicitor General and CorrectionalServices
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Summary
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BACKGROUND: The appellant, an officer with a Regional Police force (the Police), was thesubject of allegations of misconduct. Under section 63(2) of the PoliceService Act (the PSA ), the Chief of Police asked the OntarioProvincial Police (the OPP) to investigate the matter. The OPP completed itsinvestigation and submitted a report to the Police. On December 9, 1996, the Ministry of the Solicitor General and CorrectionalServices (the Ministry) received the appellant's request under the Freedomof Information and Protection of Privacy Act (the Act ) for allrecords relating to the investigation. The Ministry identified 101 pages ofresponsive records, plus a video tape of an interview which took place duringthe investigation. On January 21, 1997, the Ministry wrote to the Police,enclosing all responsive records originally produced by or provided to theMinistry by the Police. The Ministry asked the Police whether it had anyconcerns about releasing these records. On February 5, 1997, the Ministry advised the appellant that it was denyingaccess to the records, claiming that they fell within paragraphs 1 and 3 ofsection 65(6), and therefore outside the scope of the Act . Theappellant appealed this decision. Following unsuccessful mediation, this office sent a Notice of Inquiry tothe Ministry and the appellant on May 2, 1997. The Police were also laterprovided with a copy of the Notice. The application of section 65(6) of the Act was the only issue on appeal. NATURE OF THE APPEAL: On June 17, 1997, six days prior to an extended deadline for the receipt ofrepresentations, the Ministry issued a new decision letter. The Ministrywithdrew its claim to the section 65(6) exclusion, and advised the appellantthat it considered the request to be within the scope of the Act . The new decision letter went on to state that the Ministry haddecided to exercise its discretion to transfer the request to the Police, inaccordance with section 25(1) of the Act (later clarified to meansection 25(2)). In the Ministry's view, the records documented an internal PSA investigation undertaken by the OPP at the request of the Police, and the Policehad a greater interest in the records as defined in section 25(3)(a) of the Act . The appellant appealed this decision, objecting to the transfer of therequest. A Notice of Inquiry on the issue of transfer was sent to the appellant, theMinistry and the Police. Representations were received from all three parties. JURISDICTIONAL ISSUES Jurisdiction to Review a Transfer Decision In considering the jurisdiction of the Commissioner to review a transferdecision, I have taken into account several sections of the Act . When an institution receives a request, section 25(2) gives the head adiscretionary power to decide to transfer the request to another institution,provided certain conditions are met. This and other relevant subsections ofsection 25 state: (2)Where an institution receives a request for access to a record and thehead considers that another institution has a greater interest in the record,the head may transfer the request and, if necessary, the record to the otherinstitution, within fifteen days after the request is received, in which casethe head transferring the request shall give written notice of the transfer tothe person who made the request. (3) For the purpose of subsection (2), another institution has a greaterinterest in a record than the institution that receives the request for accessif, (a)the record was originally produced in or for the other institution; or (b)in the case of a record not originally produced in or for aninstitution, the other institution was the first institution to receive therecord or a copy thereof. (4)Where a request is forwarded or transferred under subsection (1) or(2), the request shall be deemed to have been made to the institution to whichit is forwarded or transferred on the day the institution to which the requestwas originally made received it. (5)In this section, "institution" includes an institution asdefined in section 2 of the Municipal Freedom of Information and Protectionof Privacy Act . Section 50(1) gives a person requesting access to his or her personalinformation the right to appeal "any decision of a head" under the Act ; and sections 54(1) and (3) require the Commissioner to make anorder disposing of the issues raised in the appeal, and permit this order tocontain terms and conditions she or he considers appropriate. Finally, section 1 includes the important principle that decisions should bereviewed independently of government. As Inquiry Officer Laurel Cropley statedin Order M-1044, when dealing with a similar jurisdictional issue: [Section 1] is an especially important factor in determining the scope ofthe review, in that the independent review and other provisions of the Act providing for a wide-ranging appeal, including the consideration of freshevidence would appear to be inconsistent with a limited appeal on the record. It is clear from a reading of these sections that the Commissioner'sjurisdiction is not limited to issues of law or to the applicability of claimedexemptions. As Inquiry Officer Cropley stated in Order M-1044: It is the duty of the Commissioner to interpret the provisions of the Act and apply those interpretations to the facts. Her interpretations must be madein light of the purposes and scheme of the Act . In my view, a decision under section 25(2) is properly characterized as "anydecision of a head" under section 50(1) and therefore appealable to theCommissioner. The Commissioner or her delegate may review that decision in aninquiry, and make an order under section 54 which contains any terms andconditions she or he considers appropriate, subject to the Act . Accordingly, I find that it is within my jurisdiction to review theMinistry's decision to transfer the request. Jurisdiction to Uphold a Late Transfer Decision I must now determine whether I have jurisdiction to uphold the Ministry'sdecision to transfer the request, notwithstanding the failure to comply with the15-day time limit set out in section 25(2) of the Act . The 15-day time limit in section 25(2) is a statutory, proceduralprecondition to the exercise of a discretionary power. According to traditionaladministrative law and statutory interpretation principles, the consequences ofa failure to comply with a procedural precondition vary, depending on whetherthe provision can be characterized as "mandatory" or "directory". If "mandatory"
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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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Dec 05, 1997
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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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