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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) of the Act , a right to appeal any decision of a head to the Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. By letter dated March 12, 1988, the requester filed a written request to the Workers' Compensation Board (the "institution") for a copy of the Coopers and Lybrand Summary Report Concerning the Operational Review of the Corporate Services Division of the Workers' Compensation Board. 2. By letter dated April 27, 1989, the institution advised the requester that: Access is denied to the Coopers and Lybrand Report under section 18(1)(f) of the Act because disclosure of the report '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'. Section (18)(1)(f) is being relied on to deny access because the Board's reorganization has not yet been completed. Upon completion, I will write to you again as to the release of this report. 3. By letter dated May 18, 1988, the requester appealed the decision of the head. I gave notice of the appeal to the institution, by letter dated May 27, 1988. 4. The record at issue in this appeal was examined by the Appeals Officer. 5. By letter dated June 1, 1988, the institution advised the appellant that an additional ground was being relied on as a basis for refusing disclosure. The letter stated that the record was also being withheld: - pursuant to section 102 of the Workers' Compensation Act . This provision states that: No officer of the Board and no person authorized to make an inquiry under this Part shall divulge or allow to be divulged, except in the performance of his duties or under the authority of the Board, any information obtained by him or that has come to his knowledge in making or in connection with an inspection or inquiry under this Part. You should be aware that by virtue of section 67 of the FOIPPA, institutions are able to rely on statutory confidentiality provisions (such as section 102 of the Workers' Compensation Act ) until January 1, 1990. Since section 102 contains broad discretionary language, however, the Board may be willing to discuss with you certain aspects of the Coopers and Lybrand Report. The institution then advised the appellant to contact a certain person at the institution and to "indicate precisely why you wish to review the report and the issues in which you have an interest." 6. The appellant agreed, during the course of the mediation efforts, to contact the person at the institution to see what portion of the record could be obtained. By letter dated September 6, 1988, the appellant wrote to the institution requesting a copy of the table of contents of the record so that he would be in a position to discuss the record with a representative from the institution pursuant to the institution's suggestion. 7. By letter dated October 18, 1988, the institution's Freedom of Information and Privacy Co-ordinator (the "Co-ordinator") wrote to the appellant and advised that, since the release of the index would generally reveal the subject matter of the report, this document cannot be released at this time. Notwithstanding this position, however, Board officials may still be willing to discuss certain aspects of the report with you on an informal basis. The Co-ordinator then went on to reiterate that if the appellant still wished to consider this option, he should write directly to a certain person at the institution "indicating the reasons for your request and the specific issues in which you have an interest." 8. On November 2, 1988, the appellant verbally advised the Appeals Officer that he felt that it was "useless to continue mediating with the Workers' Compensation Board". By letter dated November 10, 1988, the appellant confirmed that he wished to proceed with the appeal. 9. By letter dated December 22, 1988, I notified the appellant and the institution that I was conducting an inquiry to review the decision of the head. Enclosed with this letter was a report prepared by the Appeals Officer, 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 paraphrase those sections of the Act 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 need not limit themselves to the questions set out in the Report. 10. Both parties were advised of their right to make representations on the issues arising in the appeal. 11. By February 3, 1989, written representations had been received from both the appellant and the institution. I have considered these representations in making my Order. It should be noted, at the outset, that the purposes of the Act as set out in subsection 1(a) and (b) are: (a) to provide a right of access to information under the control of institutions in accordance with the principles that, (i) information should be available to the public, (ii) necessary exemptions from the right of access should be limited and specific, and ... (b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information. Further, section 53 of the Act provides that the burden of proof that the record falls within one of the specified exemptions in this Act lies upon the head. Where, as here, an institution purports to withhold records or information from disclosure pursuant to a confidentiality provision, the onus is on the institution to prove that the confidentiality provision in question operates to bar the application of the Act . The issues arising in this appeal are as follows: A. Whether section 102 of the Workers' Compensation Act is a confidentiality provision barring the application of the Freedom o
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