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Document
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P-60
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File #
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Appeal 880244
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Institution/HIC
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Ministry of Education
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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987, (the " Act ") which gives a person who has made a request for access to a record under subsection 24(1) a right to appeal any decision of a head under the Act to the Information and Privacy Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. By a form dated June 7, 1988 and addressed to the Freedom of Information and Privacy Co-ordinator (the "Co-ordinator") for the Ministry of Education (the "institution"), the requester asked for the following information: For the past year, the ministry's finance branch has been studying the effects of pooling - a plan that would collect industrial and commercial assessment taxes from school boards and distribute them equally to all boards. The recommendations for the new financing scheme came from a report called the McDonald (sic) Commission. The ministry has run so-called impact studies on how pooling will affect boards but has refused to release the results. I would like to see the impact studies on the effects of pooling. I would also like to see the impact studies done regarding other recommendations in the McDonald (sic) Commission. 2. In response, the institution wrote to the requester on July 6, 1988 and advised that access was refused pursuant to subsection 12(1)(b) of the Act . 3. On August 3, 1988 the requester wrote to me appealing the institution's decision and I gave notice of the appeal to the institution on August 15, 1988. 4. The Appeals Officer assigned to this case contacted the Co-ordinator on August 24, 1988, and requested a copy of the relevant records. 5. By letter dated September 12, 1988, the Co-ordinator outlined the institution's position that only the Commissioner himself had the authority to examine Cabinet records exempted pursuant to section 12 of the Act , and that this authority could not be delegated to an Appeals Officer. Notwithstanding this position, the Co-ordinator advised that the institution was prepared to accept a written delegation from the Commissioner allowing examination of the record by the Appeals Officer, on condition that the examination be conducted at the institution's premises and that no copies of the records be made. 6. In response to the institution, I wrote to the Deputy Minister on September 20, 1988 outlining my differing interpretation of the powers of delegation provided to me under the Act . 7. In order to avoid further delay in processing the appeal, I instructed the Appeals Officer to attend at the institution to review the records in question. This examination was conducted on October 20, 1988. 8. While examining the records, the Appeals Officer was advised by the Co-ordinator that the appellant had received whatever information he required concerning the impact studies on other recommendations contained in the MacDonald Commission report, and had narrowed his request to include only those impact studies which related to pooling. The scope of this appeal was reduced accordingly. 9. Efforts by the Appeals Officer to mediate a settlement between the parties were unsuccessful, as both parties maintained their respective positions. 10. By letters dated November 3, 1988 I gave notice to the parties that I was conducting an inquiry to review the decision of the head. Enclosed with each letter was a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal and sets out questions which paraphrase those sections of the Act which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. This report indicates that the parties, in making their representations to me, need not limit themselves to the questions set out in the report. It also advises that if a relevant new issue is raised during the inquiry, each party will be advised and given the opportunity to make representations. 11. Written representations were received from both parties. 12. In my view, the institution's representations did not address all issues raised in the Appeals Officer's Report, and also raised new issues which required clarification. As a result, I invited representatives from the institution to attend at my office to discuss these matters. At this meeting the institution cited subsection 12(1)(c) as an additional basis on which to support its decision to withhold the requested records. 13. The appellant was advised of the new exemption claimed by the institution, and invited to attend at my office to make further representations. I did meet with the appellant in my office on April 26, 1989 at which time he made further representations. 14. I have considered all representations from both parties in making this Order. The purpose of the Act as set out in section 1 should be noted at the outset. Subsection 1(a) provides the right of access to information under the control of institutions in accordance with the principles that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. Subsection 1(b) sets out the counter-balancing privacy protection purpose of the Act . The subsection provides that the Act should protect the privacy of individuals with respect to personal information about themselves held by institutions and should provide individuals with a right of access to their own personal information. It should also be noted that section 53 of the Act provides that the burden of proof that the record of part of the record falls within one of the specified exemptions of the Act lies upon the head. The issues arising in this appeal are as follows: A. Whether the records at issue in this appeal are exempt from disclosure pursuant to subsection 12(1)(b) or (c) of the Act ; and B. If the answer to Issue A is in the affirmative, whether any of the records can reasonably be severed, under subsection 10(2) of the Act , without disclosing the information that falls under the exemption. Before addressing these issues, I think it would be helpful to provide some background information relevant to this appeal. The Commission on the Financing of Elementary and Secon
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Legislation
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FIPPA
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12(1)(b)
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12(1)(c)
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12(1)(e)
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Subject Index
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Signed by
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Sidney Linden
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Published
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May 18, 1989
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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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