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P-821

Document		P-821


File #		P-9300467


Institution/HIC		Ontario Criminal Code Review Board


Summary		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 from a patient at a psychiatric hospital for access to all records in its possession which relate to him. The Board located a number of records responsive to the request and decided to deny access to them in full pursuant to the following exemptions contained in the Act : advice or recommendations - section 13 information published or available - section 22(a) discretion to refuse requester's own information - section 49(a) invasion of privacy - section 49(b) In addition, the Board claimed that the records are not subject to the Act , pursuant to section 65(2)(a). 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 ). Pursuant to section 25(2) of the Act , the Board forwarded to the Ministry of Health that portion of the request which related to two documents as it appeared that the Ministry had a greater interest in these records. The requester appealed the decision to deny access but did not dispute the transfer of a portion of the request to the Ministry of Health pursuant to section 25(2). During the course of the mediation of the appeal, access was granted to various records and the appellant agreed to limit the scope of his request to the tape recordings made of his Board hearings held on July 15 and August 5, 1993. In a subsequent decision letter specifically relating only to the tape recordings, the Board relies upon the application of the following exemptions to deny access, in addition to those claimed above: danger to health or safety - section 20 danger to mental or physical health of requester - section 49(d) Further, the Board maintains that it is not obligated to provide copies of the tape recordings, under section 30(1) of the Act , as it would not be reasonably practicable to do so since the Board does not have the technological means to reproduce the tapes. A Notice of Inquiry was forwarded to the Board and the appellant. Representations were received from both parties. As the tape recordings remain the only records at issue, I will address only the application of those exemptions which were claimed to apply to them by the Board. PRELIMINARY ISSUE: THE RAISING OF ADDITIONAL DISCRETIONARY EXEMPTIONS LATE IN THE APPEALS PROCESS On September 17, 1993, 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 October 1, 1993) 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 October 21, 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 and 49(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 decided to rely on a new discretionary exemption thirteen months after the Confirmation of Appeal was issued. Since the Board has failed to advance any arguments to indicate why the 35-day time limit should not apply in the present appeal, I will not consider the application of the sections 20 and 49(d) exemptions in this appeal. I will now address the exemptions and arguments raised by the Board in refusing to grant access to the subject records. DISCUSSION: METHOD OF ACCESS The Board claims that, under sections 30(1) and (2) of the Act , it may refuse to copy or make available for examination the tape recordings of Board hearings involving the appellant. The Board bases its submission on the following considerations: (1) That it does not have the technological means to reproduce these recordings. (2) In order to preserve of the security and integrity of the tape recordings, they cannot be released for copying or for personal examination by the appellant. (3) It would be an unreasonable expense for the Board to have the tape recordings transcribed pursuant to a request under the Act . (4) It would not be reasonably practicable to give the appellant the opportunity to examine the tape recordings given that the


Legislation		FIPPA 30(1) 30(2) 65(2)(a)


Subject Index		Raise or Consider Further Exemption


Signed by		Donald Hale


Published		Dec 20, 1994


Type		Order


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