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Document
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P-147
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File #
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Appeal 890119
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Institution/HIC
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Workers' Compensation Board
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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 (the " Act ") which gives a person who has made a request for access to a record under subsection 24(1) a right to appeal any decision under the Act to the Information and Privacy Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. By letter dated March 15, 1989, a request was made to the Workers' Compensation Board (the "institution") for the following information: Recommendation on Freedom of Information and Protection of Privacy Act. 2. On April 18, 1989, the institution responded as follows: Access is denied to the paper and recommendations relating to the Freedom of Information and Protection of Privacy Act (FIPPA) under section 12(1)(c) of the FIPPA. This provision is a mandatory exemption which prohibits the disclosure of a record prepared for submission to the Executive Council or its Committees for their consideration. Access is also denied under section 13(1) of the Act because disclosure "would reveal advice or recommendations of a public servant or any other person employed in the service of an institution". 3. On May 3, 1989, the requester wrote to me appealing the head's decision, and I gave notice of the appeal to the institution. 4. The record was obtained and examined by the Appeals Officer assigned to the case, and efforts were made by the Appeals Officer to mediate a settlement. The record consists of a one page memorandum dated October 19, 1988, which has attached to it, a two page memorandum dated October 4, 1988 with a four page appendix. 5. During the course of mediation, the institution amended its reasons for refusing access to the appellant. By letter dated July 19, 1989, the institution advised the Appeals Officer that it was now relying on subsection 13(1) and, in the alternative, subsection 12(1)(b) of the Act to deny access to the appellant. The institution withdrew its reliance on subsection 12(1)(c) of the Act . 6. Mediation efforts were not successful, and by letter dated August 9, 1989, my office notified the institution and the appellant that I was conducting an inquiry to review the decision of the head. In accordance with my usual practice, the Notice of Inquiry was accompanied by a report prepared by the Appeals Officer. This Report is intended to assist the parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal, and sets out questions which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. The Appeals Officer's Report indicates that the parties, in making their representations to the Commissioner, need not limit themselves to the questions set out in the Report. 7. I received written representations from both parties and I have considered them in reaching my decision in this appeal. It is important that the purposes of the Act , set out in section 1, be noted. Subsection 1(a) provides a right of access to information under the control of institutions in accordance with the principles that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. Subsection 1(b) sets out the counter-balancing privacy protection purpose of the Act . This subsection provides that the Act should protect the privacy of individuals with respect to information about themselves held by institutions, and should provide individuals with a right of access to their information. Section 53 of the Act provides that the burden of proof that a record falls within one of the specified exemptions in this Act lies with the head of the institution (the "head"). The issues arising in this appeal are as follows: A. Whether the record is properly exempt from disclosure pursuant to subsection 12(1)(b) of the Act . B. Whether the record is properly exempt from disclosure pursuant of subsection 13(1) of the Act . ISSUE A : Whether the record is properly exempt from disclosure pursuant to subsection 12(1)(b) of the Act . Subsection 12(1)(b) of the Act reads as follows: 12.--(1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of an Executive Council or its committees, including, ... (b) a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees; The memorandum dated October 19, 1988, is from Dr. Robert G. Elgie, Chairman, to the Members of the Board of Directors of the institution. This memorandum outlines information about the memorandum of October 4, 1988, described below, and contains Dr. Elgie's recommendation on certain matters set out in the memorandum of October 4, 1988. The memorandum dated October 4, 1988, is from the Vice-President of Corporate Services of the institution to the members of the institution's Executive Committee. This memorandum contains several paragraphs of background information and then sets out a number of specific recommendations. Attached to this memorandum is a four page appendix containing two columns. The left column sets out sections of the Workers' Compensation Act while the right column sets out proposals for these sections. The institution submitted that: The records formed the basis of discussions with representatives of the Freedom of Information Secretariat of Management Board of Cabinet and the Ministry of Labour. Although the staff representatives of Management Board of Cabinet may not constitute a committee of the Executive Council within the meaning of subsection 12(1), nonetheless the records in question were prepared by the Board for submission to the Management Board of Cabinet with the intent that the substance of Board's recommendations would be presented for consideration or for use in its legislative exercise. It is submitted that this fact is sufficient to bring the documents within subsection 12(1)(b) of FIPPA. In my Order 22 (Appeal Number 880008) dated October 21, 1988, I discussed the proper interpretation of subsection 12(1). At page 6 of the Order I stated:
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Legislation
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FIPPA
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10(2)
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12(1)
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12(1)(b)
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13(1)
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Subject Index
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Signed by
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Sidney Linden
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Published
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Feb 15, 1990
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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