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Document
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PO-1858
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File #
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PA-000156-1 and PA-000157-1
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Institution/HIC
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Ontario Human Rights Commission
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Summary
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NATURE OF THE APPEAL: The Ontario Human Rights Commission (the OHRC) received two requests under the Freedom of Information and Protection of Privacy Act (the Act ) seeking the disclosure of certain evidence relating to an OHRC decision dated November 23, 1999, which disposed of a complaint filed with the OHRC by the appellant. The OHRC located records responsive to the appellant's requests and denied access to them, claiming the application of the following exemptions contained in the Act : law enforcement - sections 14(1)(a) and (b) invasion of privacy - section 49(b) discretion to refuse requester's own information - section 49(a) The appellant appealed the OHRC's decisions to deny access to the responsive records. During the mediation stage of the appeal, the OHRC agreed to disclose portions of Record 1 from Appeal Number PA-000156-1 and Records 1 and 1(A) from Appeal Number PA-000157-1. The appellant continues to seek access to the undisclosed portions of these records. The OHRC indicated to the Mediator assigned to this matter that it takes the position that certain portions of Record 1(A) from Appeal Number PA-000156-1 are not responsive to the appellant's request on the basis that this information is identical to that which was found to be exempt from disclosure in Orders PO-1787 and PO-1812 under section 14(1)(e) of the Act (as disclosure of the information could endanger life or safety). The OHRC appears to be taking the position that because this information from Record 1(A) was found to be exempt in two earlier decisions of this office, it is now not responsive to the appellant's current request. It also takes the position that because the exemption in section 14(1)(e) was found to apply to similar information in Orders PO-1787 and PO-1812, it remains exempt in this appeal, despite the fact that the institution failed to claim the exemption in its decision letter to the appellant. I provided a Notice of Inquiry to the OHRC initially, setting out the facts and issues in these appeals. The OHRC provided me with representations which were shared with the appellant, along with a modified version of the initial Notice of Inquiry. The appellant also submitted representations in response to the Notice of Inquiry which I provided to him. At the inquiry stage of the appeal, the OHRC advised that it is prepared to disclose Record 2 from Appeal Number PA-000157-1, with the exception of the identity of an individual which is contained in the second paragraph of page 2 and in the third paragraph of page 3 of this record. The OHRC indicates in its representations that it is no longer relying on the exemptions in sections 14(1)(a) and (b) for Record 2 in Appeal Number PA-000157-1, though the identity of an individual named therein remains subject to the exemptions claimed under sections 21(1), 49(a) and (b) and 14(1)(e). DISCUSSION: PRELIMINARY ISSUES: 1. Is all of the information in Record 1(A) of Appeal Number PA-000156-1 responsive to the appellant's request? The OHRC submits that Record 1(A) contains not only "evidentiary information" but also information about a respondent to the appellant's complaints which was the subject of the decisions in Orders PO-1787 and PO-1812. Accordingly, the OHRC submits that certain portions of this record are not "evidence", that they do not, therefore, have any "evidentiary value"and are not "reasonably related" to the requests which have given rise to the present appeals. For this reason, the OHRC suggests that these portions of Record 1(A) were not deemed to be responsive to the appellant's requests and they did not render a decision on access to it since this information had already been found to be exempt from disclosure in Orders PO-1787 and PO-1812. The OHRC also submits that these portions of Record 1(A) remain the subject of a further appeal, designated by this office as PA-990255-2, and that: such information has to be severed from Record 1(A) in appeal PA-000156-1 in order not to prejudice the rights of the institution and [e]specially the affected third person. The severance made by the institution is a precautionary measure the relevancy of which would only arise in the remote event the IPC does not sustain the Institution's claim of exemption on the rest of the contents of Record 1(A) and orders the release of this particular record. In Order P-880, former Inquiry Officer Anita Fineberg considered the standard to be applied in deciding whether records are responsive to a request. She stated: In my view, the need for an institution to determine which documents are relevant to a request is a fundamental first step in responding to the request. It is an integral part of any decision by a head. The request itself sets out the boundaries of relevancy and circumscribes the records which will ultimately be identified as being responsive to the request. I am of the view that, in the context of freedom of information legislation, "relevancy" must mean "responsiveness". That is, by asking whether information is "relevant" to a request, one is really asking whether it is "responsive" to a request. While it is admittedly difficult to provide a precise definition of "relevancy" or "responsiveness", I believe that the term describes anything that is reasonably related to the request. The appellant's request in Appeal Number PA-000156-1 is clear and unambiguous. The appellant sought access to the evidence relied upon by the OHRC in rendering its decision dated November 23, 1999 dismissing his complaint. It is clear, and the OHRC does not dispute, that the information contained in Record 1(A), a letter written on behalf of one of the respondents to the complaint, was relied upon by the Commission in making its decision. I find that the information contained in Record 1(A) is plainly relevant to and, therefore, responsive to the appellant's request. The fact that portions of the record were found to be exempt from disclosure in several earlier decisions of this office, as well as in a pending appeal, does not render the record, or any part of it, not responsive to the request. 2. Is the OHRC Entitled to Rely on Section 14(1)(e) to Exempt the Information Contained in Record 1(A) of Appeal Number PA-000156-1? The OHRC submits that it ought to be entitled to rely on the exemption in section 14(1)(e) to exempt certain portions of Record 1(A), despite not having claimed the application of that exemption originally. It argues that in Orders PO-1787 and PO-1812, the Commissioner's office upheld the application of this exemption to identical information contained in the identical record as that designated as Record 1(A) in Appeal Number PA-000156-1. The OHRC points out that to allow the Institution to raise this exemption would protect the affected person whose health or safety is "on the line". In both PO-1787 and PO-1812, former Adjudicator Holly Big Canoe and I found that the OHRC had provided the kind of "detailed and convincing" evidence required to demonstrate that the expectation of harm
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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Jan 22, 2001
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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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