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Document
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M-1033
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Institution/HIC
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Town of Oakville
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Summary
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NATURE OF THE APPEAL: The Town of Oakville (the Town) received a request under the MunicipalFreedom of Information and Protection of Privacy Act (the Act ) forcopies of test and interview results in connection with a job competition. The Town identified a number of records responsive to the request and deniedaccess on the basis that the records fall within the provisions of section 52(3)of the Act . The requester (now the appellant) appealed this decision tothe Commissioner's office. This office sent a Notice of Inquiry to the Town and the appellant. Representations were received from the both parties. PRELIMINARY ISSUES: APPLICATION OF SECTION 52(3) In his representations, the appellant states that section 52(3) is notrelevant to the determination of this appeal because the events which gave riseto the request took place before the section came into force. The amendments to the Act creating the current sections 52(3) and(4) were part of what is known as "Bill 7", which was passed by theLegislature in the fall of 1995, and came into force on November 10, 1995. Theappellant states that section 52(3) is not retroactive to information gatheredprior to the effective date of the amendment. Assistant Commissioner Tom Mitchinson addressed this issue in Order P-1258when considering section 65(6) of the Freedom of Information and Protectionof Privacy Act , which is the provincial equivalent to section 52(3)3 of the Act . In that order he found that if the appellant had made her requestprior to November 10, 1995, it would have been subject to the law in effectprior to the enactment of Bill 7. However, requests made after that date weresubject to the amendments regardless of the fact that the information related toevents which occurred prior to November 10, 1995. Order P-1258 also involved arequest for job competition information. I find that the appellant's request was made on July 25, 1997, well afterBill 7 came into force. Therefore, the request and subsequent appeal aresubject to sections 52(3) and (4) of the Act . THE RAISING OF ADDITIONAL DISCRETIONARY EXEMPTIONS LATE IN THEAPPEALS PROCESS Upon receipt of the appeal, the Commissioner's office provided the Town witha Confirmation of Appeal notice. This notice indicated that, based on a policyissued by this office, the Town would have 35 days from the date of the notice(an expiry date was provided) to raise any additional discretionary exemptionsnot claimed in its decision letter. No additional exemptions were raised duringthis period. In its representations, the Town indicated for the first time that it wishedto rely on section 11 of the Act (economic or other interests) to denyaccess to the records. By this time, the expiry date provided in theConfirmation of Appeal had passed. Notwithstanding this policy, I would consider the circumstances of each caseand may exercise my discretion to depart from the policy in appropriate cases. However, should I find that the records in this appeal fall outside the scope ofthe Act by virtue of section 52(3), I need not consider this issue. DISCUSSION: JURISDICTION The interpretation of sections 52(3) and (4) is a preliminary issue whichgoes to the jurisdiction of the Commissioner or her delegate to continue aninquiry. If the requested records fall within the scope of section 52(3) ofthe Act , they would be excluded from the scope of the Act unlessthey are records described in section 52(4). Section 52(4) lists exceptions tothe exclusions established in section 52(3). These sections state: (3)Subject to subsection (4), this Act does not apply to recordscollected, prepared, maintained or used by or on behalf of an institution inrelation to any of the following: 1.Proceedings or anticipated proceedings before a court, tribunal orother entity relating to labour relations or to the employment of a person bythe institution. 2.Negotiations or anticipated negotiations relating to labour relationsor to the employment of a person by the institution between the institution anda person, bargaining agent or party to a proceeding or an anticipatedproceeding. 3.Meetings, consultations, discussions or communications about labourrelations or employment-related matters in which the institution has aninterest. (4)This Act applies to the following records: 1.An agreement between an institution and a trade union. 2.An agreement between an institution and one or more employees whichends a proceeding before a court, tribunal or other entity relating to labourrelations or to employment-related matters. 3.An agreement between an institution and one or more employees resultingfrom negotiations about employment- related matters between the institution andthe employee or employees. 4.An expense account submitted by an employee of an institution to thatinstitution for the purpose of seeking reimbursement for expenses incurred bythe employee in his or her employment. Section 52(3) is record-specific and fact-specific. If this section appliesto a specific record, in the circumstances of a particular appeal, and none ofthe exceptions listed in section 52(4) are present, then the record is excludedfrom the scope of the Act and not subject to the Commissioner'sjurisdiction. The three records at issue consist of two written tests and the results ofthe appellant's oral interview for the job competition. Section 52(3)3 In Order P-1242, Assistant Commissioner Tom Mitchinson held that in orderfor a record to fall within the scope of paragraph 3 of section 65(6), aninstitution must establish that: 1.the record was collected, prepared, maintained or used by theinstitution or on its behalf; and 2.this collection, preparation, maintenance or usage was in relation tomeetings, consultations, discussions or communications; and 3.these meetings, consultations, discussions or communications are aboutlabour relations or employment-related matters in which the institution has aninterest. Requirement 1 In my view, it is clear that job competition records are either collected,prepared, maintained or used by the employer, and in many cases, all four. Therefore, Requirement 1 has been established. Requirement 2 The Town states that all the information in the records was used in relationto the hiring process of the Town. In Order P-1223, Assistant Commissioner Mitchinson stated that if thepreparation (or collection, maintenance, or use) of a record was "for thepurpose of, as a result of, or substantially connected to an activity listed in[sections 52(3)1, 2, or 3]", it would be "in relation to" thatactivity. Previous orders have found that, in the context of a job competition, anemployment i
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Legislation
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Subject Index
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Published
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Nov 17, 1997
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Type
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Order
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