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Document
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M-637
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Institution/HIC
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The Corporation of the Town of Pickering
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Summary
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BACKGROUND: The Town of Pickering (the Town) received a request for access to a series of documents relating to a landfill site. The Town did not respond to the request within the 30 day time limit imposed by section 19 of the Municipal Freedom of Information and Protection of Privacy Act (the Act ) and the requester appealed the Town's failure to respond to the request to this agency. That appeal was resolved when the requester submitted a detailed listing of the records to which he was seeking access in response to the Town's request for clarification during the course of the appeal. The Town did not respond to the clarified request within 30 days, and the requester again appealed the Town's failure to issue a decision. During the course of that appeal the Town issued a time extension notice under section 20 of the Act and the requester appealed that decision as well. The deemed refusal issue was resolved when the Town issued a the time extension notice, and the time extension appeal was resolved in Order M-439, issued by Inquiry Officer Mumtaz Jiwan, in which the Town was ordered to undertake a search for responsive records and to provide the requester with a final decision regarding access on or before January 16, 1995. NATURE OF THE APPEAL : On January 19, 1995 the Town provided the requester with a decision letter identifying a number of responsive records and stating that, in respect of a number of the documents requested, no such records existed. The Town provided the requester with access to some of the responsive records and denied access to others in their entirety, relying on the solicitor-client privilege exemption provided by section 12 of the Act . The requester appealed the Town's decision and maintains that further records responsive to its request should exist. A Notice of Inquiry was provided to the appellant and the Town and representations were received from both parties. The records at issue consist of 13 legal accounts (Request Item 16), a thirty-nine page opinion (Request Item 21), a six page opinion (Request Item 23) with attachments which include a consultants report (Request Item 26), all prepared by the Town's outside counsel. Also at issue is a four page opinion prepared by the Town Solicitor (Request Item 25) with attachments which include duplicates of the prior legal opinion (Request Item 23) and the consultants report (Request Item 26). PRELIMINARY MATTER: The appellant maintains that the Town is precluded from claiming the discretionary exemption provided by section 12 because it made the claim for exemption late in the appeals process. As has been noted in previous orders, the Commissioner's office has adopted a policy which allows an institution only 35 days after an appeal is initiated to raise any new discretionary exemptions not originally claimed in its decision letter. That policy is reflected in the Confirmation of Appeal notice sent to the institution by the Commissioner's office when an appeal from the institution's decision has been received. That notice specifies a date by which any new discretionary exemptions must be claimed. The appellant's position is that the 35 day period should be calculated with reference to the original Confirmation of Appeal notice forwarded to the Town in connection with the appellant's appeal of the Town's deemed refusal and subsequent time extension and not with reference to the Confirmation of Appeal notice issued in this appeal. The original Confirmation of Appeal notice specified January 9, 1995 as the date by which additional discretionary exemptions could be claimed. Alternatively, the appellant maintains that even if the Town is not bound by the deadline set out in the original Confirmation of Appeal notice, it was only entitled to raise discretionary exemptions if it complied with Order M-439 by issuing a final decision letter by January 16, 1995 as required by that order. As stated earlier, the Town did not issue a final decision letter until January 19, 1995, three days after the date required by the order. In Order P-658, Inquiry Officer Anita Fineberg, when dealing with the issue of the late raising of discretionary exemptions, noted the following reasons why prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeals process: (1) Unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it will not be possible to effectively achieve a mediated settlement of the matter. (2) Where a new discretionary exemption is raised after the Inquiry Status report is issued, it will be necessary to re-notify all parties to an appeal to solicit additional representations on the applicability of the exemptions raised. The processing of the appeal will, therefore, be further delayed. (3) In many cases, the value of information which is the subject of an access request diminishes with time. In these cases, appellants are particularly prejudiced by delays arising from the late raising of new exemptions. While I certainly do not condone the Town's failure to issue a decision letter within the statutory time frame in the first instance nor its failure to comply with the terms of Order M-439, I do not find that claiming the discretionary exemption on January 19, 1995, rather than by January 9, 1995 as set out in the original Confirmation of Appeal notice, raises any concerns relevant to the reasons set out above. Additionally, Order M-439 did not contain any conditions which would limit the Town's ability to claim discretionary exemptions. In the circumstances of this appeal, mediation efforts have not been adversely affected by the timing of the exemption claim and no representations on issues of access had been sought or received at the time the exemption claim was made. In addition, given the nature of the records at issue, I am not convinced that the delay prejudiced the appellant in any significant way. Accordingly, I am prepared to consider the Town's reliance on section 12 of the Act to exempt the records at issue from disclosure. DISCUSSION : SOLICITOR-CLIENT PRIVILEGE The Town claims that the solicitor-client privilege exemption found in section 12 of the Act applies to exempt all of the records at issue from disclosure. Under section 12 of the Act , a municipality may refuse to
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Legislation
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Subject Index
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Published
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Nov 06, 1995
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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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