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Document
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P-820
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File #
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P-9400191
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Institution/HIC
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Ontario Criminal Code Review Board
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The Ontario Criminal Code Review Board (the Board) received a request for all records in the possession of the Board which relate to the requester, a patient at a psychiatric facility, for the period January 1, 1978 to September 15, 1993. The Board located a total of 89 records which were responsive to the request and disclosed 15 of them, with references to the personal information of other individuals removed under section 21(1) of the Act . The Board decided, however, to deny access to the remaining 74 records claiming the application of the following exemptions contained in the Act : advice or recommendations - section 13(1) solicitor-client privilege - section 19 information published or available - section 22(a) In addition, the Board claimed that the records in question fell under section 65(2)(a) of the Act . This provision excludes from the application of the Act records which are clinical records as defined by section 35(1) of the Mental Health Act (the MHA ). The Board further advised the requester that a portion of his request had been transferred to the Kingston Police Services Board pursuant to section 25(2) of the Act as it appeared that the Police had a greater interest in several of the records. The requester appealed the decision to deny access to the 74 records to the Commissioner's office. The appellant did not, however, challenge the decision to withhold access to the personal information contained in the other 15 records. Further, the appellant does not dispute the application of section 22(a) to two of the records and that the transfer of a portion of his request to the Kingston Police Services Board was proper. During the mediation stage of the appeal, the Appeals Officer requested the Board to undertake a further search for responsive records. The Board located and provided the Commissioner's office with copies of tape recordings made of Board proceedings involving the appellant which were conducted on February 13, 1992, November 17, 1992, May 11, 1993 and February 24, 1994. These seven tape recordings also form part of the records at issue in this appeal. A Notice of Inquiry was provided to the appellant and the Board. Representations were received from both parties. In its representations, the Board raised the application of additional exemptions and made other collateral arguments to deny access to the records at issue, particularly the tape recordings. Specifically, it submits that the tape recordings are exempt from disclosure under the following provisions of the Act : invasion of privacy - section 49(b) danger to mental or physical health of requester - section 49(d) danger to safety or health - section 20 In addition, pursuant to section 30(1) of the Act , the Board submits that it is not required to reproduce the tape recordings as it would not be reasonably practicable to do so. The Board also acknowledged that, for the purposes of the Act , it maintains custody or has control over all of the records at issue in the appeal, regardless of where they may be physically located. Because this appeal represents the first case in which the Commissioner's office has considered the disclosure of tape recordings of an administrative tribunal's hearings, additional representations were sought from the appellant, the Information and Privacy Branch of the Management Board Secretariat and the Society of Ontario Adjudicators and Regulators (SOAR). Additional representations were received from the appellant and SOAR only. PRELIMINARY ISSUE: THE RAISING OF ADDITIONAL DISCRETIONARY EXEMPTIONS LATE IN THE APPEALS PROCESS On March 29, 1994, the Commissioner's office provided the Board with a Confirmation of Appeal which indicated that an appeal from the Board's decision had been received. This Confirmation also indicated that, based on a policy adopted by the Commissioner's office, the Board would have 35 days from the date of the confirmation (that is, until May 9, 1994) to raise any new discretionary exemptions not originally claimed in its decision letter. No additional exemptions were raised during this period. It was not until September 22, 1994, following the issuance of the Notice of Inquiry, that the Board indicated for the first time that it wished to rely on sections 20, 49(b) and (d) of the Act to deny access to the tape recordings which are at issue in this appeal. Previous orders issued by the Commissioner's office have held that the Commissioner or his delegate has the power to control the manner in which the inquiry process is undertaken. This includes the authority to set time limits for the receipt of representations and to limit the time frame during which an institution can raise new discretionary exemptions not originally cited in its decision letter. In Order P-658, Inquiry Officer Anita Fineberg explained why the prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeals process. She indicated that, unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it will not be possible to effectively seek a mediated settlement of the appeal under section 51 of the Act . Inquiry Officer Fineberg also pointed out that, where a new discretionary exemption is raised after the Notice of Inquiry is issued, it will be necessary to re-notify all parties to an appeal to solicit additional representations on the applicability of the new exemption. The result is that the processing of the appeal will be further delayed. Finally, Inquiry Officer Fineberg made the important point that, in many cases, the value of information which is the subject of an access request diminishes with time. In these situations, appellants are particularly prejudiced by delays arising from the late raising of new exemptions. The objective of the policy enacted by the Commissioner's office is to provide government organizations with a window of opportunity to raise new discretionary exemptions but not at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant prejudiced. In the present case, the Board was advised of the policy in question yet
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Legislation
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FIPPA
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30(1)
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30(2)
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65(2)(a)
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Section 19
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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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Dec 20, 1994
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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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