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Document
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P-1302
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File #
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P_9600221
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Institution/HIC
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Ministry of Transportation
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Summary
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NATURE OF THE APPEAL: The appellant is an employee of the Ministry of Transportation (theMinistry). He submitted a request to the Ministry under the Freedom ofInformation and Protection of Privacy Act (the Act ) for access to acopy of the findings of a consulting company which the Ministry had engaged tostudy the classification levels of human resources consultants at the Ministry. The Ministry identified a document entitled "Ministry of TransportationReview of Human Resources Service Delivery Generalist Consultant Positions"(the Report) as the record responsive to the request. The Report is datedNovember 30, 1995. The Ministry denied access to the Report, claiming that it falls within theparameters of section 65(6) of the Act , and therefore outside the scopeof 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. Prior to considering whether the Report falls within the scope of section65(6) or (7) of the Act , I will outline the relevant background factswhich lead to the creation of the Report. BACKGROUND: In a memorandum dated January 23, 1995, the Director of the Ministry's HumanResources Branch explained the upcoming consultant's review to staff as beingconducted "... to respond to a perceived disparity in classification levels"which became apparent after the integration of the service delivery programs ofthe Ministry's Central Region and head office. The consultants were to alsoconduct a review of the positions in the Ministry's other regional offices. In its representations, the Ministry indicates that the consultant's reviewwas conducted as a result of complaints about classification levels, submittedby affected staff in June and August of 1994. The Ministry continuously statesthat these "complaints" were not "formally classified" asgrievances. However, it submits that they are "in effect" grievancesunder section 51 of Regulation 977 under the Public Service Act (the PSA ) and that, in commissioning the Report, the Deputy Minister wasmeeting his obligations under section 51(1) of Regulation 977. The Ministry has also advised that, in April 1996, one of the appellant'scolleagues filed a grievance relating to classification levels. The Ministrystates that the nature of the grievance is "substantially similar" tothe earlier complaints received by the Deputy Minister which triggered thepreparation of the Report. This grievance is currently being considered by theDeputy Minister as the first stage in a section 51 process. In the Ministry'sview, if the grievor is not satisfied with the decision of the Deputy Minister,there is a "strong possibility" that the decision may be appealed tothe Classifications Rating Committee, which the Ministry describes as "anadjudicative body established under the PSA ". DISCUSSION: The sole issue in this appeal is whether the Report falls within the scopeof 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 toany of the following: 1.Proceedings or anticipated proceedings before a court, tribunal or otherentity relating to labour relations or to the employment of a person by theinstitution. 2.Negotiations or anticipated negotiations relating to labour relations orto the employment of a person by the institution between the institution and aperson, bargaining agent or party to a proceeding or an anticipated proceeding. 3.Meetings, consultations, discussions or communications about labourrelations or employment-related matters in which the institution has aninterest. (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 endsa proceeding before a court, tribunal or other entity relating to labourrelations or to employment-related matters. 3.An agreement between an institution and one or more employees resultingfrom negotiations about employment-related matters between the institution andthe employee or employees. 4.An expense account submitted by an employee of an institution to thatinstitution for the purpose of seeking reimbursement for expenses incurred bythe employee in his or her employment. The interpretation of sections 65(6) and (7) is a preliminary issue whichgoes to the Commissioner's jurisdiction to continue an inquiry. Section 65(6) is record-specific and fact-specific. If this section appliesto a specific record, in the circumstances of a particular appeal, and none ofthe exceptions listed in section 65(7) are present, then the record is excludedfrom the scope of the Act and not subject to the Commissioner'sjurisdiction. In its representations, the Ministry claims that paragraphs 65(6)1 and65(6)3 apply to exclude the Report from the Act . In his submissions, the appellant appears to accept the Ministry's positionthat the Report falls within paragraph 65(6)3, but argues that paragraph 65(7)3applies thus making the Report subject to the provisions of the Act . Assection 65 goes to the jurisdiction of this office, I will independently reviewthe Ministry's claim that the Report falls within the scope of paragraphs 65(6)1or 65(6)3. I will first consider the Ministry's arguments on the application of section65(6)3. Section 65(6)3 In Order P-1242, former Assistant Commissioner Tom Mitchinson found that inorder to fall within the scope of paragraph 3 of section 65(6), the Ministrymust establish that: 1.the record was collected, prepared, maintained or used by the Ministryor on its behalf; and 2.this collection, preparation, maintenance or usage was in relation tomeetings, consultations, discussions or communications; and 3.these meetings, consultations, discussions or communications are aboutlabour relations or employment-related matters in which the Ministry has aninterest. I agree with this analysis and will apply it in the present appeal. Requirements 1 and 2 The Ministry states that the Report was prepared on its behalf by theconsultants retained to address the complaints received by the Deputy Ministerwith respect to employee classification. Having reviewed the Report, I find that it was clearly prepared on behalf ofthe Ministry by the consultant
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Legislation
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Nov 22, 1996
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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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