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Document
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P-1252
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File #
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P-9600100
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Institution/HIC
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Ontario Institute for Studies In Education
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Summary
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NATURE OF THE APPEAL: The appellant submitted three requests for information from the Ontario Institute for Studies in Education (OISE) under the Freedom of Information and Protection of Privacy Act (the Act ). These requests are summarized as follows: 1. A six-part request for correspondence and agreements between the appellant and OISE relating to his retirement as an employee of OISE. 2. A six-part request for correspondence dealing with the appellant's retirement and a study grant which was awarded to the appellant, and documents authorizing the removal of the appellant and certain documents from OISE's premises. 3. A four-part request also dealing with the same incident referred to in the final two parts of Request #2 concerning authorization for the removal of the appellant and certain documents from OISE OISE identified 14 pages of records responsive to Request #1 and the first four parts of Request #2, and denied access to all of them, claiming that they fall within the parameters of paragraphs 1 and 3 of section 65(6) of the Act , and therefore outside the scope of the Act . With respect to Request #3 and the final two parts of Request #2, OSIE advised the appellant that no responsive records existed. The appellant appealed OISE's decisions. This office sent a Notice of Inquiry to the appellant and OISE, seeking representations on the jurisdictional issue raised by sections 65(6) and (7), as well as the reasonableness of the searches undertaken by OISE to locate responsive records. DISCUSSION: JURISDICTIONAL ISSUE Sections 65(6)1 and 3 and 65(7) of the Act read as follows: (6) 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: 1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution. 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. (7) This Act applies to the following records: 1. An agreement between an institution and a trade union. 2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment- related matters. 3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees. 4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment. The interpretation of sections 65(6) and (7) is a preliminary issue which goes to the Commissioner's jurisdiction to continue an inquiry. Section 65(6) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in 65(7) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner's jurisdiction. In its representations, OISE agrees to disclose pages 10-12 of the records to the appellant. Therefore, these pages are no longer at issue in this appeal. In Order P-1223, I stated that in order for a record to fall within the scope of paragraph 1 of section 65(6) , a Ministry (or in this case, OISE) must establish that: 1. the record was collected, prepared, maintained or used by OISE or on its behalf; and 2. this collection, preparation, maintenance or usage was in relation to proceedings or anticipated proceedings before a court, tribunal or other entity; and 3. these proceedings or anticipated proceedings relate to labour relations or to the employment of a person by OISE. OISE has provided documentation to establish that the appellant has commenced legal proceedings against OISE in the Ontario Court of Justice (General Division). The Statement of Claim filed by the appellant seeks damages on the basis of the breach of his employment contract with OISE. 1. Were the records collected prepared, maintained or used by OISE or on its behalf? It is clear from the face of the records that pages 1-3, 5-8 and 13-14 were prepared by employees of OISE on its behalf. They all consist of memoranda or letters sent by OISE staff members to the appellant and deal with the appellant's retirement and/or study leave. Page 4 has two parts. The top part is a memorandum from an OISE employee to the appellant dealing with the appellant's retirement. The bottom part is the appellant's response. Although both parts were clearly prepared by OISE employees, only the top part can accurately be characterized as having been prepared "by OISE or on its behalf"; the bottom part was prepared by the appellant in his personal capacity, not on behalf of OISE. Page 9 consists of an unsigned draft Memorandum of Agreement between OISE, the appellant, and the appellant's union. It is not clear who prepared this document. The current Dean of Ontario Institute of Studies in Education, University of Toronto, who was also the former Director of OISE (the Director) provided an affidavit as part of OISE's representations. In it she explains that, because aspects of the appellant's employment were frequently in dispute, OISE created a centralized employment file for him in 1994. According to the affidavit: This centralized employment file was and is maintained by the Director's Office and contains copies of all documents collected, prepared, maintained, or used by any of the Offices of O.I.S.E. relating to [the appellant]. Each Office is under instructions to copy any records pertaining to [the appellant] to the Director's Office, where the records are placed in [the appellant's] centralized employment file. OISE submits that all of the pages of records which remain at issue in this appeal are maintained in the appellant's employment file. Based on OISE's representations and my revi
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Legislation
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FIPPA
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65(6)1
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65(6)3
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65(7)
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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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Aug 30, 1996
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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