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Document
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P-832
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File #
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P-9400450
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Institution/HIC
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Ontario Hydro
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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 requester asked Ontario Hydro (Hydro) for access to records from the files of 28 named individuals at Hydro. The records relate to the requester and the complaint he filed with the Ontario Human Rights Commission (OHRC) alleging discrimination and harassment while he was an employee of Hydro. The requester has made two previous requests for similar information in which he received over 400 records from Hydro. These included documents from the files of 19 of the individuals who are also named in his current request. Hydro identified 3 records that were responsive to this request: Record 1: the draft of its response to the requester's OHRC complaint; Record 2: file notes of a Hydro solicitor dated December 15, 1993; and Record 3: file notes of another Hydro solicitor dated January 26, 1993. Hydro denied access to these records in their entirety based on the following exemptions contained in the Act : advice or recommendations - section 13(1) law enforcement - section 14(1) solicitor-client privilege - section 19 discretion to refuse requester's own information - section 49(a) All of the above exemptions were applied to Record 1, while only sections 19 and 49(a) were applied to Records 2 and 3. In addition to appealing the denial of access, the requester also maintains that additional records should exist. A Notice of Inquiry was provided to the parties to the appeal. Representations were received from Hydro and the appellant. In his representations, the appellant requested that he be provided with the affidavit of search provided to the Commissioner's Office by Hydro. Hydro agreed to this request and a copy of its affidavit was provided to him. However, he still maintains that more records should exist. Subsequent to the Notice of Inquiry being sent to Hydro, it disclosed a portion of its draft response to the OHRC to the appellant. The balance of the draft response (Record 1) and the file notes dated December 15, 1993 (Record 2) and January 26, 1993 (Record 3), therefore, remain at issue in this appeal. DISCUSSION: DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION/SOLICITOR-CLIENT PRIVILEGE Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual. Hydro submits that Records 1, 2, and 3 contain the personal information of the appellant. I agree. They do not contain the personal information of any other individuals. Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 49 provides a number of exceptions to this general right of access. Under section 49(a), the institution has the discretion to deny access to an individual's own personal information in instances where certain exemptions, including solicitor-client privilege (section 19) would otherwise apply to that information. Hydro has claimed that section 19 applies to all three records at issue. Section 19 consists of two branches, which provide an institution with the discretion to refuse to disclose: 1. a record that is subject to the common law solicitor-client privilege (Branch 1); and 2. a record which was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation (Branch 2). Hydro submits that Record 1 was drafted by their Staff Relations Branch and provided to a Hydro lawyer for the purpose of seeking confidential legal advice on the content of Hydro's official response to the OHRC. The lawyer reviewed the document and recommended changes to it. I have carefully reviewed Record 1. The portions which have not been disclosed to the appellant consist of changes made by the lawyer to the draft response, comments made by the lawyer in the margins of the draft and in the body of the response, and information which was not contained in Hydro's official response to the OHRC because of comments made by the lawyer. I find that Record 1 is a written communication of a confidential nature between a Hydro staff member, the client, and its solicitor, which directly relates to the seeking and giving of legal advice. Accordingly, Record 1 qualifies for exemption under Branch 1 of the section 19 exemption. Record 2 consists of notes prepared by a Hydro lawyer regarding her meeting with two employees who were conducting a fact finding investigation on behalf of Hydro following the appellant's complaint to the OHRC. Hydro states that the record describes this meeting and sets out the information provided to the lawyer and the legal advice supplied by the lawyer on appropriate questions and course of conduct for the investigators. Record 3 consists of the notes of another Hydro lawyer describing a conversation between herself and one of the employees conducting the investigation. Hydro submits that the notes detail the information provided to the lawyer and the legal advice sought and given with respect to the appellant's allegations of harassment and discrimination. Hydro states that the notes discuss options for potential settlement of the complaint and Hydro's strategy for defending the appellant's allegations throughout the OHRC process. Hydro has indicated that the appellant's human rights complaint is still outstanding. Should the OHRC not resolve the complaint, the matter could proceed to a formal Board of Inquiry which is litigation before an administrative tribunal, after which recourse to the courts could occur. It is Hydro's submission that both Records 2 and 3 were used in preparing Hydro's formal response to the human rights complaint, and will be used in the course of mediation with the OHRC, the OHRC's investigation, and the Board of Inquiry hearing. I have reviewed the records and submissions of the parties. I find that Records 2 and 3 were prepared by legal counsel employed by Hydro for use in giving legal advice or in contemplation of litigation. Accordingly, they satisfy the c
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Legislation
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Jan 11, 1995
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Type
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Order
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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