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Document
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P-396
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File #
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P-9200466
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Institution/HIC
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The Rent Review Hearings Board
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Summary
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ORDER BACKGROUND: The Rent Review Hearings Board (the Board), an agency of the Ministry of Housing (the Ministry), received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for a copy of notes made at a pre-hearing conference (PHC) by the Board member who presided at the PHC. The Ministry denied access, claiming that any notes that may have been taken were not in the custody or under the control of the Board. The Ministry stated that such notes, if they existed, were a memory aid for the personal use of the Board member making them, and did not form part of the Board's appeal file. The requester appealed the Ministry's decision. During the course of processing the appeal, the Ministry acknowledged that notes exist, but refused to provide a copy of them to this office, again claiming that they were not in the custody or under the control of the Board. Mediation was not possible, and notice that an inquiry was being conducted to review the decision of the Ministry was sent to the appellant, the Board, the Board member who took the notes, and the Ministry. Because the issue of custody and control of a Board member's notes has implications beyond the scope of this particular appeal, a group representing the chairs of certain provincial agencies, boards and commissions (the chairs) was added as an affected party and provided with an opportunity to submit representations. A list of the organizations represented by the chairs is attached as an appendix to this order. Representations were received from the appellant, the Board, and the chairs. The Board member and the Ministry adopted the Board's representations. The sole issue in this appeal is whether the notes of the Board member are in the custody or under the control of the Board. Section 10(1) of the Act states: Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or the part of the record falls within one of the exemptions under sections 12 to 22. In its representations, the Board makes the following points regarding the creation and use of Board members' notes generally: Board members store their personal notes separately from Board files; the Board member is the only person with access to the notes; the Board member determines the form and style of the notes and how long to keep the notes before disposing of them; notes are not part of the Board's appeal file, and the Board's standard index does not contain any reference to a Board member's notes; the Board does not know if notes have been taken, and there are no guidelines regarding retention or destruction of notes; not all members take notes, and it is at the discretion of the individual Board member whether or not personal notes are taken; and there is no legal requirement or Board policy, procedure or employment requirement pertaining to the creation, storage, maintenance and disposal of personal notes by Board members. The chairs' representations focus on the issue of adjudicative independence. In their view, to require a Board member to produce notes to a Board chair for consideration in the context of a request for access under the Act would represent an unjustifiable interference with the adjudicative process. The chairs state: Members cannot be compelled to submit to institutional processes which might impair or be seen to impair their independence. Neither the tribunal, the tribunal chair nor the ministry could require a member to take notes or produce them for inspection. ... The courts have distinguished between materials which would reveal the adjudicator's thinking processes, which no one has a right to obtain, and materials relating to the general processing of the hearing, which might indicate natural justice concerns. It should be noted that the representations of the Board and the chairs are both restricted to the situation of notes prepared by Board members, and not notes prepared by others for Board members. Both parties acknowledge that the rationale for their submissions would not apply to the circumstance of notes prepared for Board members. The application of freedom of information legislation to the notes of members of administrative tribunals has been considered a number of times throughout the history of the development of the Act . Beginning with the report "Public Government for Private People", The Report of the Commission on Freedom of Information and Individual Privacy/1980 , the Williams Commission expressed concern about the effect of "internal" or "secret" law, and recommended that administrative tribunals be subject to freedom of information legislation in the same manner as government ministries. This recommendation was incorporated into Bill 34 (the precursor to the current Act ) when it was introduced for consideration by the Legislature in 1985. Bill 34 included no specific reference to notes prepared by a member of an administrative tribunal. However, it did include a specific section, currently section 65(3), which reads as follows: This Act does not apply to notes prepared by or for a person presiding in a proceeding in a court of Ontario if those notes are prepared for that person's personal use in connection with the proceeding. During committee hearings on Bill 34, the then-Attorney General was asked whether section 65(3) would apply to administrative tribunals, to which he responded: [It] does not. The quasi-judicial tribunal members, in so far as they make notes and in so far as those notes come within the custody of government may be obliged to disclose them. We had to draw the dividing line somewhere and we drew the line at judge's notes. I think the practical reality is that many tribunal officials, the chairman of the Ontario Labour Relations Board as with judges, may make notes and then destroy them at the end of the day--there is no compulsion to retain those notes under any statute--or may take them home. That is to say, they are not within the custody of government and therefore not producible. But if the chairman of the Labour Relations Board files his notes in his office in a filing cabinet they will be producible. It is clear from the Attorney General's comments that section 65(3) was intended
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Legislation
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FIPPA
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10(1) custody or control
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65(3)
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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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Jan 08, 1993
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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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