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Document
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M-441
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Institution/HIC
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Barrie Public Library Board
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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 ). A newspaper reporter requested that the Barrie Library Board (the Board) provide him with a copy of the financial documents and other records related to the out-of-court settlement between the Board and a former Board employee (the former employee). The settlement resulted from the termination of the former employee from the Board. No court action was involved. The Board denied access to the records in their entirety, relying on the following exemptions in the Act : third party information - section 10(1) solicitor-client privilege - section 12 invasion of privacy - section 14(1). The reporter appealed the denial of access. During mediation, the scope of the appeal was limited to one record, namely the Minutes of Settlement. This document consists of five pages to which are attached three Schedules. One schedule is a list of documents the Board is to forward to the former employee. The second is a letter of reference and the third is a release. A Notice of Inquiry was sent to the parties to the appeal, namely, the Board, the reporter and the former employee. Representations were received from all the parties. In his submissions, the reporter claimed that there exists a public interest in disclosure of the requested documentation, thus raising the possible application of section 16 of the Act . DISCUSSION: THIRD PARTY INFORMATION For a record to qualify for exemption under section 10(1)(a), (b) or (c) of the Act the institution and/or the affected party must satisfy each part of the following three-part test: 1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and 2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and 3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in (a), (b) or (c) of subsection 10(1) will occur. [Order 36. See also Orders M-29 and M-37] I will first consider the second part of the test. This element requires that the information has been supplied to the Board by an affected party, in this case the former employee, either explicitly or implicitly in confidence. Past orders of the Commissioner's office have generally concluded that information contained in contracts entered into between an institution and another party is not "supplied" for the purposes of section 10(1) of the Act . Rather, the strong inference in these cases is that the information is a product of negotiations between the parties. In this case, the Board has provided no submissions as to how the information contained in the Minutes of Settlement could be said to have been "supplied" by the former employee. In fact, in its discussion of the application of section 12 of the Act , the Board states that: The Minutes of Settlement were the direct result of employment of counsel and were the final result of the negotiation process between legal counsels . [my emphasis] Accordingly, I find that the second part of the section 10(1) test has not been satisfied. As all elements must be present in order for the exemption to apply, I conclude that the third party information exemption does not apply to the Minutes of Settlement. SOLICITOR-CLIENT PRIVILEGE Section 12 consists of two branches, which provide an institution with the discretion to refuse to disclose: 1. a record that is subject to the common law solicitor-client privilege (Branch 1); and 2. a record which was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation (Branch 2). The Board's submissions are limited. In addition to the statement I have referred to above, the Board merely states that if a settlement had not been reached, the Minutes of Settlement would have been part of contemplated litigation. In this regard the Board has referred to certain documentation it has provided to this office. This information merely sets out various provisions dealing with the release of claims by the former employee against the Board. It does not indicate anything about contemplated litigation. The question of what constitutes "in contemplation of litigation" was considered by former Assistant Commissioner Tom Mitchinson in Order M-86. There, he indicated that for a record to qualify as being prepared in contemplation of litigation: ... the dominant purpose for the preparation of the document must be in contemplation of litigation; and ... there must be a reasonable prospect of litigation at the time of the preparation of the record - litigation must be more than a vague or theoretical possibility. I adopt this approach for the purposes of this order. Having reviewed the submissions of the Board I am not persuaded that, at the time the Minutes of Settlement were entered into, the Board could have reasonably contemplated that litigation would occur respecting the terms of the agreement. In fact, I would consider that such an outcome would be most unlikely given that the parties to the Minutes of Settlement had endorsed its contents. Accordingly, I find that the second branch of the section 12 exemption does not apply to the Minutes of Settlement. INVASION OF PRIVACY Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual. Having reviewed the Minutes of Settlement and the schedules, I find that they contain the personal information of the former employee. Once it has been determined that a record contains personal information, section 14(1) of the Act prohibits the disclosure of this information except in certain circumstances. Sections 14(2), (3) and (
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Legislation
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Subject Index
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Published
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Jan 10, 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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