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M-396

Document		M-396


Institution/HIC		Carleton Board of Education


Summary		NATURE OF THE APPEAL: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The appellant has requested copies of records from the Carleton Board of Education (the Board). The records relate to harassment and other complaints against the appellant, who is a teacher employed by the Board. The harassment complaint led to an investigation under the Board's policy on this subject. The Board granted partial access, and relied on the following exemptions to withhold the responsive records and portions of records which were not disclosed: advice to government - section 7(1) third party information - sections 10(1)(b) and (d) discretion to refuse requester's own information - section 38(a) invasion of privacy - sections 14 and 38(b). A Notice of Inquiry was provided to the parties to the appeal, including 19 affected persons. The affected persons included the complainants in the harassment investigation, other witnesses, students and parents. Representations were received from the appellant, the Board and six affected persons. One of the affected persons consented to the disclosure of some information pertaining to her. This consent related to part of Record 13, and the specified information has now been disclosed to the appellant. Accordingly, this part of Record 13 is not at issue in this appeal. In its representations, the Board withdrew its reliance on section 10(1) of the Act . None of the affected persons advanced any arguments to support the application of this mandatory exemption. Since the records themselves do not substantiate the application of this exemption, and I have not been presented with any other information to indicate that it applies, I will not consider it further in this order. There are 19 records at issue in this appeal. The records, and the exemptions to be considered for each of them, are listed in Appendix "A". To facilitate the analysis of these records, I have divided them into the following groups: Group 1: Notes and memoranda created during the Board's investigation of harassment complaints against the appellant by other teachers (Records 1-10); Group 2: Notes, letters and memoranda regarding other complaints by students and their parents concerning the appellant (Records 11-18); and Group 3: Notes of the principal regarding the appellant (Record 19). DISCUSSION: PERSONAL INFORMATION 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. The Board submits that all the information contained in the records that have been withheld qualifies as personal information as defined in the Act . I have carefully reviewed the records and, with one exception, I find that all of them contain the personal information of the appellant and one or more other identifiable individuals. The exception is the undisclosed portion of Record 19, which contains the personal information of the appellant only. Section 36(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 38 provides a number of exceptions to this general right of access. Two of these exceptions may be relevant in the circumstances of this appeal, namely sections 38(a) and (b). I will consider each of these in turn. DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION/ADVICE OR RECOMMENDATIONS Section 38(a) of the Act gives the Board the discretion to deny access to an individual's own personal information in circumstances where any of the exemptions listed in that section would otherwise apply to the information. The only exemption mentioned in section 38(a) which is at issue in this appeal is the "advice or recommendations" exemption provided by section 7(1) of the Act . Accordingly, I will now turn to the issue of whether any records qualify for exemption under that section. The Board initially claimed the exemption in section 7(1) for all of the records at issue. However, its representations concerning this exemption only refer to Records 9, 10 and the severed portion of Record 19. In the absence of representations to support its application to the other records, I will only consider its possible application to Records 9, 10 and the relevant part of Record 19. Section 7(1) states that: A head may refuse to disclose a record if the disclosure would reveal advice or recommendations of an officer or employee of an institution or a consultant retained by an institution. It has been established in a number of previous orders that advice and recommendations for the purpose of section 7(1) must contain more than mere information. To qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process. In Order 94, former Commissioner Sidney B. Linden commented on the scope of the exemption in section 13(1) of the provincial Freedom of Information and Protection of Privacy Act , which is the equivalent of section 7(1) of the Act . He stated that "[t]his exemption purports to protect the free flow of advice and recommendations within the deliberative process of government decision-making or policy-making." This view was the subject of the following comment by former Assistant Commissioner Tom Mitchinson in Order P-434: In my view, the deliberative process of government decision-making and policy-making referred to by Commissioner Linden in Order 94 does not extend to communications between public servants which relate exclusively to matters which have no relation to the actual business of the Ministry. The pages of the record which have been exempt[ed] by the Ministry under section 13(1) [of the provincial Act ] in this appeal all deal with a human resource issue involving the appellant and, in my view, to find that this type of information is exemptible under section 13(1) of the Act would be to extend the exemption beyond its purpose and


Legislation		MFIPPA 14(2) 7(1) Section 16


Subject Index		deliberative process


Published		Sep 30, 1994


Type		Order


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