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Document
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PO-1956-I
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File #
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PA-000409-1 and PA-010013-1
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Institution/HIC
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Ministry of Tourism, Culture and Recreation
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Summary
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NATURE OF THE APPEAL: The appellant submitted a seven-part request to the Ministry of Citizenship, Culture and Recreation, now the Ministry of Tourism, Culture and Recreation (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ). The Ministry separated the requests and gave each one a request number. Of the seven requests, only Request Numbers 00-024 and 00-026 are at issue in this appeal. Request Number 00-024 The appellant asked for a copy of an independent audit done by a named consultant with respect to "Operations and Policy of the Archaeology Unit, Heritage & Libraries Branch" of the Ministry. Request Number 00-026 This request was for the written response of Ministry staff to the documentation submitted by the appellant entitled Report to the Red Tape Commission Respecting the Policies and Conduct of the Ontario Ministry of Citizenship, Culture & Recreation, Heritage and Libraries Branch, Heritage Operations . The Ministry located records responsive to both requests and denied access to them on the basis that they fell outside the scope of the Act pursuant to paragraphs 1 and 3 of section 65(6). The appellant appealed the Ministry's decision on the grounds that the requested records were completed by or for the Ministry in direct response to its complaint and that they were, therefore, not prepared for the purpose of labour relations. The appellant also notes that since submitting its complaint to the Ministry, it has received no response to any of the allegations or concerns expressed in the complaint. This office opened Appeal Number PA-000409-1 to address the issues with respect to Request Number 00-024 and Appeal Number PA-010013-1 to deal with Request Number 00-026. Because the parties are the same and the issues in both appeals are similar, I have joined them together for the purpose of this inquiry. I decided to seek representations from the Ministry, initially, and provided it with a Notice of Inquiry setting out the facts and issues in the appeal. The Ministry submitted representations in response. I then determined that the appellant should be given an opportunity to respond to the Ministry's representations. At this point, as a result of concerns expressed by the Ministry, I notified one of its employees as an affected person. This individual submitted representations in response, which I provided to the Ministry along with a supplementary Notice of Inquiry. The Ministry submitted supplementary representations in response. ISSUE: The Ministry initially requested that I withhold its original representations from the appellant in their entirety. However, upon further consideration, the Ministry agreed to share portions of them. The Ministry indicated that none of its supplementary representations should be shared with the appellant. I essentially agreed with the Ministry's amended confidentiality request insofar as the actual content of the representations are concerned and confirmed with the Ministry that specific portions of the representations would not be shared with the appellant. However, I was of the view that the evidence to which the confidentiality request applied is central to the issue that I must decide at inquiry. I therefore advised the Ministry that I would include a paragraph identifying the nature of the Ministry's argument in the Notice of Inquiry that I intended to send to the appellant. The Ministry objects to the inclusion of this paragraph in the Notice of Inquiry and requests that nothing relating to this portion of its representations be shared with the appellant. With respect to the affected person's representations, I decided that, although they should not be shared with the appellant, I would similarly summarize the main points made in them in the Notice of Inquiry. An Adjudication Review Officer contacted the affected person to obtain his views regarding this approach. The affected person agreed to the inclusion of the summary that I had prepared in the Notice. However, he objected to the inclusion of one sentence of the summary I prepared relating to the Ministry's representations and requested that this sentence be deleted from the Notice. Following receipt of the Ministry's supplementary representations, I decided that, although they would not be shared with the appellant, I would summarize the Ministry's argument. Given the Ministry's position on this issue generally, I assume that it will object for the same reasons. The purpose of this Interim Order is to rule on these confidentiality requests. To be clear, I have agreed to share the Ministry's representations with the appellant in accordance with its revised request for confidentiality, and the affected person has agreed to the inclusion of the paragraph I drafted which summarizes his representations. This interim order will only address the question of whether I will include a paragraph, which has already been drafted and provided to the Ministry and the affected person, plus one additional paragraph which summarizes the Ministry's supplementary representations, in the Notice of Inquiry that is to be sent to the appellant. Before I begin, it should be noted that this is a very unusual situation. In most cases, an adjudicator will decide unilaterally what information to provide to the parties during an inquiry and, without consultation, include that information in the Notice of Inquiry. Because of the nature of the Ministry's concerns, however, and recognizing the care that must be taken in not infringing the privacy of a third party, I decided to proceed with caution and to explore the concerns expressed by the Ministry, and ultimately the affected person. DISCUSSION: Sharing of representations procedure The Notice of Inquiry cover letter to the Ministry and affected person states: The representations you provide to this office may be shared with the appellant, unless there is an overriding confidentiality concern. The procedure for the submitting and sharing of representations is set out in the attached document entitled Inquiry Procedure at the Adjudication Stage . Please refer to this document when preparing your representations.
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Legislation
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Subject Index
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Signed by
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Laurel Cropley
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Published
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Oct 09, 2001
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Type
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Order – Interim
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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