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Document
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M-491
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Institution/HIC
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Board of Education for the City of Hamilton
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The appellant has been involved in grievance proceedings with the Board of Education for the City of Hamilton (the Board). She has requested the following information from the Board: (1) a copy of her complete personnel file maintained by the Board's Human Resources Department; (2) a copy of her complete file maintained by the Board's Employee Relations Department; and (3) a copy of her complete file with the Board's Legal Services Department or any law office retained by the Board, including all records in which her name appears. The Board granted full access to the personnel file referred to in part 1 of the request. In response to part 2, the Board provided full access to the Step 1 and 2 grievance notes maintained by its Employee Relations Department, and partial access to an internal workplace report relating to the grievance. Also with respect to part 2, the Board identified, and denied access to, correspondence with its lawyers. With respect to part 3, the Board's response indicated that no responsive records existed. Access to the undisclosed information was denied pursuant to the following exemptions: solicitor-client privilege - section 12 evaluative or opinion material - section 38(c). The appellant filed an appeal with the Commissioner's office, objecting to the denial of access and also indicating that additional responsive records ought to exist. Accordingly, this order will deal with the issues of access to records and the reasonableness of the Board's search for responsive records. A Notice of Inquiry was sent to the Board and the appellant. Representations were received from both parties. The records which were at issue at the beginning of my inquiry into this appeal were as follows (adopting the numbering system assigned in the Notice of Inquiry): Record 1: Handwritten notes, April 19, 1994 Record 2: Office Memo, April 16, 1994 Record 3: Letter from Board solicitors to Board, January 31, 1994 Record 4: Letter from Board solicitors to Board, February 1, 1994 Record 5: Letter from Board solicitors to Board, February 21, 1994 Record 6: Letter from Board to its solicitors, March 1, 1994. In its representations, the Board has indicated that it no longer seeks to exempt Records 3 and 5. In addition, the Board has not made any representations to support the discretionary exemptions it has claimed with respect to Records 1 and 6. I have reviewed Records 1, 3, 5 and 6 and determined that no mandatory exemptions apply. Accordingly, I will order the Board to disclose these records and will not consider them further in this order. Therefore, the records which remain at issue are Records 2 and 4. PRELIMINARY ISSUES: LATE FILING OF APPEAL Section 39(2) of the Act states as follows: An appeal under subsection (1) shall be made within thirty days after the notice was given of the decision appealed from by filing with the Commissioner written notice of appeal. In her letter of appeal, the appellant states that she received the Board's response to her request, dated September 23, 1994, on September 27, 1993 . Since it is clearly impossible that the appellant received a letter dated September 23, 1994 on September 27, 1993, I will proceed on the basis that the appellant in fact received the Board's response on September 27, 1994. Thus her appeal, which was dated November 4, 1994, was filed outside the 30 day period prescribed by section 39(2). The Board argues that the appeal is untimely and therefore ought not to proceed. In Order P-155 former Commissioner Sidney B. Linden expressed the principle that the Freedom of Information and Protection of Privacy Act (which is similar to the Act , but applies to provincial, rather than municipal, institutions) should be interpreted liberally in favour of access to the process unless someone can show prejudice resulting from the delay. In that order, the former Commissioner held that where a delay in filing an appeal is substantial or the institution or any other affected person can show some prejudice resulting from delay, subsection 50(2) of the provincial Act (the equivalent of section 39(2) of the Act ) is to be interpreted more strictly. In this appeal, in order to comply with section 39(2) the appeal should have been filed by October 27, 1994. Instead, it was dated November 4, 1994. In my view, a delay of eight days does not qualify as "substantial" in the sense contemplated in Order P-155. Moreover, no evidence of prejudice has been provided. Accordingly, I am prepared to proceed with this appeal. LATE RAISING OF EXEMPTIONS The representations submitted by the Board also seek to claim several additional exemptions with respect to Record 2. These exemptions are as follows: third party information - section 10(1) advice or recommendations - section 7(1). The exemption in section 10(1) is mandatory, and for that reason I will consider its possible application. Section 7(1), however, is discretionary. As part of its efforts to expedite the processing of access appeals and in order to sensitize institutions about the prejudice which accrues to appellants when discretionary exemptions are not applied promptly, the Commissioner's office issued an IPC Practices publication in January 1993, entitled "Raising Discretionary Exemptions During an Appeal". This document, which was sent to all provincial and municipal institutions, indicates that: The IPC has found that institutions frequently raise new discretionary exemptions after the appeal process is underway. When this happens, the appellant must be informed and given the opportunity to comment on the applicability of the new exemption claims. This additional step prolongs the appeal process, particularly when new discretionary exemptions are raised at the later stages of an appeal. Effective March 1, 1993, the IPC will permit institutions to raise new discretionary exemptions only within a limited time frame - up to 35 days after the appeal has been opened. The initial notice sent out by the IPC will specify the deadline for claiming any new discretionary exemptions.
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Legislation
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MFIPPA
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10(1)(b)
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10(1)(d)
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38(a)
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38(c)
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39(2)
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Section 12
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Subject Index
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Published
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Mar 17, 1995
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Type
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Order
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