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Document
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PO-2163
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File #
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PA-020293-1
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Institution/HIC
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Management Board Secretariat
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Summary
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NATURE OF THE APPEAL: Management Board Secretariat (MBS) received a request from a union under the Freedom of Information and Protection of Privacy Act (the Act ) for access to information about expenses and savings resulting from the 2002 OPSEU strike. Specifically, the requester sought access to a copy of "all 'Labour Disruption' templates completed by ministries, agencies, boards and/or commissions submitted to Management Board Secretariat". MBS and the requester subsequently clarified that the 2002-03 first quarter reports submitted by various provincial ministries to MBS that set out the costs or savings related to the strike are the only responsive records. MBS denied access to all of the records on the basis that they fall within the scope of section 65(6)3 and are outside the jurisdiction of the Act . The requester, now the appellant, appealed the decision. Mediation was not successful in resolving the appeal, so it was transferred to the adjudication stage of the appeals process. I sent a Notice of Inquiry to MBS and received representations in response. I then sent the Notice to the appellant, along with a copy of MBS's representations, and the appellant responded with representations. RECORDS: The records consist of 24 two-page quarterly reports submitted to MBS by various ministries. Each record sets out the costs and savings of a particular ministry during the strike period under the headings "Operating Labour Disruption Costs and Savings" and "Capital Labour Disruption Costs and Savings". DISCUSSION: Introduction The only issue to be determined in this appeal is whether section 65(6) applies. Section 65(6) is record-specific and fact-specific. If section 65(6) applies, and none of the exceptions found in section 65(7) apply, section 65(6) has the effect of excluding the records from the scope of the Act . Section 65(6)3 provides: Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following: 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. In order for the records to be excluded from the Act under section 65(6)3, MBS must establish that: the records were collected, prepared, maintained or used by an institution or on its behalf; and this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the institution has an interest. The appellant's position The appellant's representations do not address the specific requirements of section 65(6)3, but instead take the position that section 65 should be interpreted narrowly in accordance with its legislative intent. The appellant submits: I believe that the original intent behind the 1995 reforms to [the Act ] was to prevent access, through [the Act ], to grievance notes - not to exclude each and every document that might potentially have some labour implications. I am not aware of any public or private records that suggest that the latter intent existed in 1995. Taken to the extreme, a broad interpretation of this amendment could exclude practically all government records; surely the great majority of government decisions can be said to have some impact on public servants and their bargaining agents. Any records that relate to wrong-doing, for example, could be excluded using the argument that the Government might consider taking disciplinary action at some point against the employees in question. Another example would be discussions between two levels of government regarding their respective roles and responsibilities. One could argue that the outcome of such discussions might lead to the termination, redeployment, or hiring of provincial employees. Should the Government really be allowed to use Section 65 to exclude records of such discussions? Requirement 1: were the records collected, prepared, maintained or used by MBS? MBS submits that the records were prepared by individual ministries as part of their first quarter financial reporting requirements, and then collected, maintained and used by MBS as the central agency responsible for the allocation of budgetary resources. I concur, and find that the first part of the section 65(6)3 test has been established. Although MBS did not prepare the records, it did collect, maintain and use them, which is sufficient to satisfy requirement 1. Requirement 2: were these activities in relation to meetings, discussions or communications? MBS submits that the records were collected, maintained and used in relation to discussions, meetings and communications about the costs incurred and savings realized during the strike period. Again, I concur, and find that requirement 2 of the section 65(6)3 test has been established. It is clear from the contents of the records that they formed the basis of communications relating to the impact of the strike on the operation of the Ontario government. Requirement 3: were these meetings, discussions or communications about labour relations or employment-related matters in which the institution has an interest? In Order PO-2157, Adjudicator Sherry Liang dealt with other records created in the context of this same public sector strike. In addressing the third requirement of section 65(6)3 she stated: In considering this part of the test under section 65(6)3, I find that "labour relations" matters refers to matters arising out of the collective bargaining relationship between an institution and its employees, as governed by collective bargaining legislation. "Labour relations" matters are distinct from "employment-related" matters, which may cover human resources or staff relations issues that do not arise out of a collective bargaining relationship. Applying that approach to the records at issue in this appeal, I find that they deal exclusively with issues that arose in the context of the labour dispute between the provincial government and one of its bargaining agents, and as such they fall within the scope of "labour relations" matters for the purposes of section 65(6)3. The word "about" as it appears in section 65(6)3 has been discussed in a number of previous orders. For example, in Order P-1369, former Adjudicator John Higgins adopted the requirement articulated in Order P-1223 that the collection, preparation, maintenance or use of a record must have a "fairly substantial" connection to an activity listed in section 65(6) in order for it to be "about" that activity. In Order P-1369, Adjudicator Higgins described the record at issue as a review of the Liquor Control Board of Ontario (LCBO) whose purpose was to set "the policy and direction for the future management of the LCBO". As a "broadly-based organizational review which touches occasionally, and in an extremely general way, on staffing and salary issues", the rev
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Jul 17, 2003
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Type
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Order
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