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PO-1778-I

Document		PO-1778-I


File #		PA-990347-1


Institution/HIC		Office of the Public Guardian & Trustee


Summary		NATURE OF THE APPEAL: The appellant made a request to the Office of the Public Guardian and Trustee (the PGT) under the Freedom of Information and Protection of Privacy Act (the Act ) for all documentation held by its offices pertaining to the estate of his father and the appellant's role as executor of the estate. The PGT issued three separate decisions to the appellant granting access to some records and denying access to other records pursuant to sections 14(2)(a), 19, 21, 49(a) and 49(b) of the Act . The appellant appealed the PGT's denial of access. During mediation, sections 66(a) and 24 were raised as issues in this appeal. I sent a Notice of Inquiry initially to the PGT and to one individual referred to in the records (the affected person) as she may have an interest in the appeal. In response, only the PGT submitted representations to this office. ISSUE: The PGT's submissions consisted of two documents entitled "Public Submissions" and "Confidential Facts and Evidence". The PGT consented to the first document being shared with the appellant, but asked me to withhold the second document from him. The purpose of this interim order is to rule on the PGT's request to withhold its "Confidential Facts and Evidence". DISCUSSION: Sharing of representations procedure In the Notice of Inquiry cover letter to the PGT, I stated: 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. The Inquiry Procedure document states: In its representations, the first party must indicate clearly, and in detail: which information in its representations, if any, the party wishes the Adjudicator to withhold from the second party; and its reasons for this request (see confidentiality criteria below). The document later sets out the criteria for withholding representations, as follows: The Adjudicator may withhold information contained in a party's representations where: (a) disclosure of the information would reveal the substance of a record claimed to be exempt or excluded; (b) the information would be exempt if contained in a record subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act; or (c) the information should not be disclosed to the other party for another reason. For the purposes of paragraph (c) above, the Adjudicator will apply the following test: (i) the party communicated the information to the IPC in a confidence that it would not be disclosed to the other party; and (ii) confidentiality must be essential to the full and satisfactory maintenance of the relation between the IPC and the party; and (iii) the relation must be one which in the opinion of the community ought to be diligently fostered; and (iv) the injury to the relation that would result from the disclosure of the information would be greater than the benefit thereby gained for the correct disposal of the litigation. The PGT's confidentiality request The PGT addressed the confidentiality of representations issue with respect to the document entitled "Confidential Facts and Evidence" as follows: The enclosed submission of "Confidential Facts and Evidence" is for the Information and Privacy Commissioner's (hereinafter IPC) use only and in accordance with Subsection 55(1) of the Freedom of Information and Protection of Privacy Act , may not be disclosed to the appellant or affected parties. If, however, the IPC nevertheless intends to disclose part of or all of the enclosed, despite Subsection 55(1), the Public Guardian and Trustee hereby requires that notice be given to her prior to that disclosure, and that she be given a reasonable opportunity to make submissions as to why it should not be disclosed. Findings Based on the Inquiry Procedure document, parties are not permitted a further opportunity to make submissions on the sharing of representations issue, barring exceptional circumstances. The opportunity to do so is provided at the time the original representations are made. There are no exceptional circumstances which would take this case outside the norm. As a result, this interim order shall constitute my decision on this issue, and I will not be providing the PGT with an additional opportunity to make submissions in this regard. Having reviewed the representations in their entirety and the confidentiality request as set out above, I find that with one exception, the information in the "Confidential Facts and Evidence" document does not fit within any of the confidentiality criteria. The PGT's generalized claim of confidentiality is insufficient to establish a basis for my withholding these portions of the representations. The PGT has not provided any information which would support the application of the criteria in paragraphs (a), (b) or (c), and the representations do not on their face contain any indication that the portions of the "Confidential Facts and Evidence" which are not highlighted on the copies of these documents that I have attached to the PGT's copy of this interim order would disclose or reveal the substance of a record, would be exempt or would be otherwise confidential in nature. Further, much of the information in the representations is already within the knowledge of the appellant, for example, the background information in the "Confidential Facts and Evidence", which describe the role of the PGT, its involvement with the


Legislation		FIPPA 52(13) 55(1)


Subject Index		exchange of


Signed by		Laurel Cropley


Published		May 04, 2000


Type		Order – Interim


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