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M-830

Document		M-830


Institution/HIC		City of Hamilton


Summary		NATURE OF THE APPEAL: The appellant is an employee of the City of Hamilton Fire Department (the City) who participated in a promotional job competition in February 1996. He submitted a request to the City under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to the following information relating to this job competition: 1. A copy of the written examination and his answer sheet. 2. A copy of his oral examination and the answer sheet from each of the senior officers on the interview panel. 3. A copy of each senior officer's score sheet for the scenario portion of his examination. The City granted access to a copy of the appellant's own "summary of Lieutenant's Examination results", but denied access to all other responsive records on the basis of the following exemptions: economic and other interests - sections 11(c), (d) and (f). The appellant appealed the City's decision. During the course of mediation, the Appeals Officer identified the possible application of section 52(3) of the Act to the records. If this section applies, and none of the exceptions found in section 52(4) are present, section 52(3) has the effect of excluding records from the scope of the Act and thereby removing them from the Commissioner's jurisdiction. This office sent a Notice of Inquiry to the City and appellant. The Notice included reference to the section 52(3) and (4) jurisdictional issue. Because some of the records appear to contain the appellant's personal information, section 38(a) was also raised in the Notice. Both parties submitted representations. The City's representations do not address section 11(c), and because its application has not been established, I find that this exemption is no longer at issue. RECORDS: The records at issue in this appeal consist of the "Lieutenant's Written Examination - February 1996" form, the written examination correct answer sheet, the appellant's written examination answer sheet, a blank answer sheet, the "Lieutenant's Oral Examination - February 1996" and correct answers form, the "Lieutenant's Scenario - 1996" form, and the evaluators' individual score sheets/evaluations for the "scenario" and "oral" portions of the examination. DISCUSSION : JURISDICTION The first issue in this appeal is whether the records fall within the scope of sections 52(3) and (4) of the Act . These provisions read: (3) Subject to subsection (4), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following: 1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution. 2. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding. 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. (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 which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters. 3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees. 4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment. The interpretation of sections 52(3) and (4) is a preliminary issue which goes to the Commissioner's jurisdiction to continue an inquiry. Section 52(3) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in section 52(4) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner's jurisdiction. As a result, if I find that I do not have jurisdiction to deal with the records, it will not be necessary for me to deal with the substantive exemptions claimed by the City. The City submits that all of the records were prepared, maintained and used in the context of the job competition, and these are clearly employment-related matters in which the City has an interest. The appellant points out in his representations the reason for his request, but does not address any of the specific requirements of section 52(3). Section 52(3)3 In Order P-1242, I stated that in order for a record to fall within the scope of paragraph 3 of section 65(6) (the equivalent provision to section 52(3)3 found in the provincial Freedom of Information and Protection of Privacy Act ), an institution (in this case, the City) must establish that: 1. the record was collected, prepared, maintained or used by the City or on its behalf; and 2. this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and 3. these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the City has an interest. Requirements 1 and 2 In my view, it is clear that job competition records are either collected, prepared, maintained or used by the City, and in many cases, all four. Therefore Requirement 1 has been established. I also find that in the context of a job recruitment process: - an employment interview is a "meeting"; and - deliberations about the results of a competition among the interview panel members are "meetings, discussions or communications", and sometimes all three. Moreover, the records generated with respect to these activities would be either for the


Legislation		MFIPPA 52(3) 52(3)3 52(4)


Subject Index		institution has an interest job competition


Published		Sep 04, 1996


Type		Order


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