|
|
Document
|
|
P-603
|
|
|
|
|
|
File #
|
|
P-9200677
|
|
|
|
|
|
Institution/HIC
|
|
Workers' Compensation Board
|
|
|
|
|
|
Summary
|
|
ORDER BACKGROUND: The Workers' Compensation Board (the Board) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to the Board's audit reports. The Board denied access to the responsive records in their entirety, relying upon one or more of the exemptions in sections 13(1), 14(1)(i), 17(1), 18(1)(f) and 21 of the Act . The Board also raised the application of section 23 of the Act , which it indicated was not applicable to the records covered by the request. The requester appealed the Board's denial of access. During mediation, the appellant agreed to eliminate from the appeal any third party or personal information which the Board had severed from the reports pursuant to sections 17 and 21 of the Act . The Board agreed that one reference in Record 7, at page 36 was incorrectly severed under section 17, as it was not information from a third party. Further mediation was not successful and notice that an inquiry was being conducted to review the Board's decision was sent to the Board, the appellant and the authors of the reports. Representations were received from the Board and the appellant. A list of the records at issue is set out in Appendix A. ISSUES: The issues arising in this appeal are: A. Whether the discretionary exemption provided by section 18(1)(f) of the Act applies. B. Whether the discretionary exemption provided by section 13(1) of the Act applies. C. Whether the discretionary exemption provided by section 14(1)(i) of the Act applies. D. If the answer to Issues A, B or C is yes, whether there is a compelling public interest in the disclosure of the records which clearly outweighs the purpose of the exemption. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 18(1)(f) of the Act applies. The Board submits that section 18(1)(f) of the Act applies to Records 1, 2, 4, 5, 6, 7, 8, 9, 10 and 11. This section reads: A head may refuse to disclose a record that contains, plans relating to the management of personnel or the administration of an institution that have not yet been put into operation or made public; In order to qualify for exemption under section 18(1)(f) of the Act , the Board must establish that a record satisfies each element of the following three part test: 1. the record must contain a plan or plans, and 2. the plan or plans must relate to: (i) the management of personnel or (ii) the administration of an institution, and 3. the plan or plans must not yet have been put into operation or made public. [Order P-229] Part one of the test requires that the record contain a "plan". The Eighth Edition of the Concise Oxford Dictionary defines "plan" as "a formulated and especially detailed method by which a thing is to be done; a design or scheme" (Orders M-77, M-90, M-92, P-229, P-348 and P-555). The Board takes the position that a "plan", within the meaning of section 18(1)(f), includes preliminary or discussion drafts or proposed plans or the outline of a plan. The Board submits: ... the detailed Findings, Conclusions and Recommendations contained in audit reports contain the essential elements of a plan. The problem identified or Findings is the thing to be done. The audit recommendations can be the formulated and detailed method, the scheme by with the thing is to be done. The scheme can be adopted directly as an action plan by management. Order P-348 dealt with a consultant's report concerning a school at one campus of Humber College of Applied Arts and Technology. The report contained sections entitled: "Recommendations and Rationale", "Conclusion" and "Recommendations Recap". Former Assistant Commissioner Tom Mitchinson commented on the applicability of section 18(1)(f) as follows: [the report] contains certain recommendations which, if adopted and implemented by the institution, might involve the formulation of a detailed plan, but the record itself is not a plan or a proposed plan. Therefore, in my view, the record does not qualify for exemption under either section 18(1)(f) or (g). Other orders have considered section 11(f) of the Municipal Freedom of Information and Protection of Privacy Act , which corresponds to section 18(1)(f) of the Act . These orders found that observations and recommendations for improved municipal fire services contained in a consultant's report were not a "plan" (Order M-90) nor were observations and recommendations for change in a report analyzing a municipal transit contract (Order M-92). In this appeal, it is my view that the recommendations contained in the reports do not themselves constitute a "plan" for the purposes of section 18(1)(f). In my view these reports were not intended to be an "especially detailed method" for carrying out the recommendations, rather, they would form the basis for the development of a plan which would then set out the detailed methods and actions required to accomplish the recommendations. For this reason, I find that Records 1, 2, 4, 5, 6, 7, 8, 9, 10 and 11 do not meet the first part of the test and accordingly, they are not exempt under section 18(1)(f) of the Act . ISSUE B: Whether the discretionary exemption provided by section 13(1) of the Act applies. The Board submits that section 13(1) of the Act applies to Records 1, 3, 5, 6, 7, 9, 10 and 11. This section reads: A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution. It has been established in a number of previous orders that advice and recommendations for the purpose of section 13(1) must contain more than mere information. To qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process (Orders 118, P-304, P-348, P-356 and P-529). The B
|
|
|
|
|
|
Legislation
|
|
-
FIPPA
-
13(2)
-
13(2)(f)
-
14(1)(i)
-
18(1)(f)
|
|
|
|
|
|
Subject Index
|
|
|
|
|
|
|
|
Signed by
|
|
Holly Big Canoe
|
|
|
|
|
|
Published
|
|
Dec 21, 1993
|
|
|
|
|
|
Type
|
|
Order
|
|
|
|
|
|
<<
Back
|
|
|