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Document
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M-915
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Institution/HIC
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Township of West Carleton
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Summary
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NATURE OF THE APPEAL: The appellant is a former employee of the Township of West Carleton (theTownship). He submitted a request to the Township under the MunicipalFreedom of Information and Protection of Privacy Act (the Act ). Therequest related to allegations of workplace harassment on his part which wereinvestigated by a consultant, and which resulted in a letter of reprimand beingplaced in his personnel file. In particular, he requested access to: his personnel file; the consultant's report and background documentation such as theconsultant's terms of reference and records which prompted the investigation; information about the selection of the consultant; all information given to the Township Council about the matter; all related correspondence from external sources including "the legalcommunity"; information relating to incidents involving another employee identified byposition title in the request; and all other relevant information. The Township granted the appellant access to his personnel file. It deniedhim access to the other documentation he requested, citing "Bill 7" asthe basis for this decision. Bill 7, the Labour Relations and Employment Statute Law Amendment Act,1995 , amended the Act by adding sections 52(3) and (4). If section 52(3) applies to arecord, it has the effect of excluding that record from the scope of the Act unless it is a record described in section 52(4). The appellant filed an appeal of the Township's decision. During mediation,the appellant indicated that the only record to which he continues to seekaccess is the consultant's investigation report. Accordingly, the report is theonly record at issue in this appeal. The report contains appendices consistingof memoranda and notes referring to the subjects under investigation, preparedby various Township employees, as well as several policies considered by theconsultant. This office sent a Notice of Inquiry to the Township and the appellant. Both parties submitted representations. DISCUSSION: JURISDICTION The only issue in this appeal is whether the record falls within the scopeof sections 52(3) and (4) of the Act . These provisions read: (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. The interpretation of sections 52(3) and (4) is a preliminary issue whichgoes to the Commissioner's jurisdiction to continue an inquiry. 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 Township submits that section 52(3)3 applies to the record at issue. In Order M-830, former Assistant Commissioner Tom Mitchinson analysed therequirements of section 52(3)3 and concluded that the following requirementsmust be met in order for it to apply: 1.the record was collected, prepared, maintained or used by the Townshipor 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 Township has aninterest. I agree with this analysis and adopt it for the purposes of this appeal. Requirement 1 The Township retained the consultant to investigate the working relationshipbetween the appellant and another employee. As a result of the report, a letterof reprimand was placed in the appellant's personnel file. I am satisfied thatthe consultant prepared the report and collected its appendices on behalf of theTownship. I am also satisfied that the Township used the report. Requirement 1is met. Requirement 2 In Order P-1223, former Assistant Commissioner Tom Mitchinson commented onthe meaning of "in relation to" in section 65(6) of the provincial Freedom of Information and Protection of Privacy Act , which is theequivalent of section 52(3) of the Act . He stated: In the context of section 65(6), I am of the view that if the preparation(or collection, maintenance, or use) of a record was for the purposeof, as a result of, or substantially connected to an activity listed insections 65(6)1, 2, or 3, it would be "in relation to" that activity. (emphasis added) I agree with this interpretation and adopt it for the purposes of thisappeal. The Township submits that it used the report as a means of communicating theconsultant's findings and recommendations to members of Council. It alsosubmits that the report was used for the purpose of meetings with the employeeswho were the subject of the investigation. Accordingly, I find that theTownship used the report "in relation to" both meetings andcommunications, and therefore, Requirement 2 has been met. Requirement 3 This requirement is met if the Township can demonstrate that the meetings orcommunications referred to under Requirement 2 were about an employment-relatedmatter in which it "has an interest". In its representations, the Township characterizes the investigation as aresponse to allegations of workplace harassment. Based on my review of therecord, I agree with this characterization. In my view, the meetings andcommunications
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Legislation
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Subject Index
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Published
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Mar 27, 1997
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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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