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Summary
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NATURE OF THE APPEAL: The appellant made a request to the Ministry of Transportation (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ) for access to human resource, investigation and grievance files concerning himself, held by a number of Ministry employees identified in the request. The appellant, an employee of the Ministry, has been involved in a number of disputes with the Ministry, beginning in 1987 and continuing to the present time. The Ministry identified 89 responsive records (consisting of 442 pages). They are comprised of memoranda, letters, draft and final reports, handwritten notes, and other similar documents relating to a grievance initiated by the appellant under the terms of the collective agreement between the government and the Ontario Public Service Employees Union (OPSEU) (the grievance records); and similar types of records relating to a refusal to work by the appellant under the Occupational Health and Safety Act (the OHSA ) (the OHSA records). The Ministry denied access to all of these 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. PRELIMINARY ISSUE According to the Ministry' representations: In the course of the mediation process, the Ministry offered to make all of the records which had been identified as of that date as being responsive to the request (W1 to W20, G1 to G5) freely available to the requester by way of a "Routine Disclosure", outside the formal access process prescribed by the Act, a disclosure advocated in "IPC Perspectives", Volume 5, Issue 2. However, the Requester refused to accept such a resolution of his request for documents, insisting upon continuation of the formal processes prescribed by the Act, including those for appeals. It appears that the Requester's purpose is to test the effect of Bill 7 on the application of the Act on certain records rather than to obtain copies of those records. Many of them were originated by him, copies of which he presumably retained, and others were supplied to him by the Ministry when they were created. Still others are public documents such as decisions of the Grievance Settlement Board. It should also be recognized that all of the records in the occupational health and safety file(s) have been and are accessible to the requester through his Joint Health and Safety Committee, from the local Occupational Health and Safety Office and from his manager pursuant to the requirements specified in the Occupational Health and Safety Act (see sections 2(2), 18(d), 25(1), 25(m), etc.). I will first consider whether there is any relevance to the fact that many of the records at issue in this appeal were authored by the appellant, previously provided to the appellant in other contexts, or are public documents readily available to the appellant and others. In my view, on a plain reading of the words, there is nothing in section 65(6) or (7) to support the view that records whose contents are already known to an appellant would be exceptions to the exclusions introduced by these new provisions. However, it is necessary to explore whether there are any principles of statutory interpretation which might produce such a result. In Order M-444, Inquiry Officer John Higgins found that applying the section 14(3)(b) presumption against the disclosure of personal information in the Municipal Freedom of Information and Protection of Privacy Act and ordering non-disclosure of parts of a record which had actually been authored by the appellant, and another which was a written transcript of a statement he gave, would be an absurd result, and therefore an error in statutory interpretation. The Inquiry Officer commented on this issue as follows: However, it is an established principle of statutory interpretation that an absurd result, or one which contradicts the purposes of the statute in which it is found, is not a proper implementation of the legislature's intention. In this case, applying the presumption to deny access to information which the appellant provided to the Police in the first place is, in my view, a manifestly absurd result. Moreover, one of the primary purposes of the [Municipal] Act is to allow individuals to have access to records containing their own personal information, unless there is a compelling reason for non-disclosure. In my view, in the circumstances of this appeal, non-disclosure of this information would contradict this primary purpose. Inquiry Officer Higgins took a similar approach to the presumption in section 21(3)(d) of the Act in Order P-1014, respecting disclosure of personal information of individuals other than the requester, which would clearly have been well known to him. He stated: There is information in the records which would identify what are now previous positions of several individuals. However, this information relates to individuals who worked in the same branch as the appellant at the time of the investigation, and who have moved on to other jobs. While this might fall under this presumption in some cases, it would not be reasonable to apply the presumption here because the appellant was well aware of the job titles of the other individuals working in his branch. Similar considerations apply to the starting and/or termination dates of staff in the branch during the appellant's tenure there. I will not apply this presumption to the job titles or the starting and termination dates of these individuals. It might appear that a similar approach could be applied, in appropriate circumstances, when considering sections 65(6) and (7) of the Act . However, in my view, there is a significant difference in context which dictates the opposite result when considering these sections. In Orders M-444 and P-1014, there was no question that the Inquiry Officer was dealing with records which were subject to the Act . In that situation, the Act presumes a right of access unless an exemption applies, or the request is frivolous or vexatious, as set out in sections 10(1) and 47(1). Within that statutory context, non-disclosure of the partic
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