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M-861

Document		M-861


Institution/HIC		Municipality of Clarington


Summary		NATURE OF THE APPEAL: The Municipality of Clarington (the Municipality) received a five partrequest under the Municipal Freedom of Information and Protection of PrivacyAct (the Act ) for access to: 1.The contents of the requester's personnel file. 2.All documents pertaining to a specified job competition in which therequester was involved. 3.Letters written in support of the requester's candidacy. 4.Written reasons why the requester was not awarded the position sought. 5.Copies of any complaints received about the requester by theMunicipality. The requester is a former temporary employee of the Municipality and was anunsuccessful candidate in a job competition held in August 1995. Therequester's temporary employment with the Municipality began on June 22, 1992and ended on December 8, 1995. The Municipality responded by denying access to all of the records which itidentified as responsive to the request, claiming the application of section 12of the Act (solicitor-client privilege). The requester, now theappellant, appealed the Municipality's decision and claimed that additionalrecords beyond those identified by the Municipality should exist. During the mediation of the appeal, the Municipality provided the appellantwith a number of records relating to items 2 and 3 of the request and advisedthat no records responsive to items 4 and 5 exist. The Municipality alsoprepared and forwarded to the appellant a further decision letter in which itclaimed the application of section 14 of the Act to records containingthe personal information of the other candidates in the job competition. The undisclosed responsive records in this appeal may be categorized asfollows: 1.Group A - records relating to a proceeding initiated by the appellantbefore the Ontario Labour Relations Board (the OLRB) which is now complete. 2.Group B - records relating to the August 1995 job competition in whichthe appellant was an unsuccessful candidate. 3.Group C - records relating to a proceeding initiated by the appellantbefore the Ontario Human Rights Commission (the OHRC) which remains on-going. 4.Group D - the contents of the appellant's personnel file. The Appeals Officer identified the possible application of section 52(3) ofthe Act to these records. If this section applies, and none of theexceptions found in section 52(4) are present, section 52(3) has the effect ofexcluding records from the scope of the Act and thereby, removing themfrom the Commissioner's jurisdiction. This office sent a Notice of Inquiry to the Municipality and the appellantsoliciting their views on the jurisdictional issue in section 52(3), theapplication of sections 12, 14, 38(a) and (b), as well as the question of theadequacy of the Municipality's search. Representations were received only fromthe Municipality. PRELIMINARY ISSUE: PAYMENT OF THE REQUEST FEE The Municipality submits that, under section 17(1)(c) of the Act , arequester is required to pay the fee prescribed by the regulations at the timeof making the request. Section 5(2) of Regulation 823 prescribes that a fee of$5.00 is to be charged for the purposes of section 17(1)(c). The Municipalityargues that because it "believes that [the appellant] has not paid theprescribed fees for either his request for access to personal information or forthe appeal" the appellant's request and appeal have no legal standingbefore the Commissioner. The appellant has paid the required appeal fee. With respect to the requestfee, in my view it was the responsibility of the Municipality to collect it. Ifthe Municipality failed to collect the request fee due to it at the time therequest was received (and I have no evidence before me to determine thisquestion), I find that the Municipality should not be able to rely upon its ownfailure to collect the fee in order to preclude the processing of the appeal. Accordingly, I will proceed to address the substantive issues which are beforeme in this matter. DISCUSSION: REASONABLENESS OF SEARCH The Municipality provided me with an affidavit sworn by its Clerk in whichshe describes in detail the nature and extent of the searches which sheundertook for records responsive to the appellant's request. Searches wereconducted in the personnel and grievance files of the Municipality's ChiefAdministrative Officer. In addition, records relating to the job competitionwere obtained by the Clerk from the Municipality's Property Manager. Where a requester provides sufficient details about the records which he isseeking and the institution (in this case the Municipality) indicates thatfurther records do not exist, it is my responsibility to ensure that theMunicipality has made a reasonable search to identify any records which areresponsive to the request. The Act does not require the Municipality toprove with absolute certainty that further records do not exist. However, in myview, in order to properly discharge its obligations under the Act , theMunicipality must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive tothe request. As noted above, the appellant did not make any submissions in response tothe Notice of Inquiry. In my view, the steps taken by the Municipality to locate records responsiveto the appellant's request were reasonable in the circumstances. JURISDICTION The first issue in this appeal is whether the records fall 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


Legislation		MFIPPA 52(3)1 52(3)2 52(3)3


Subject Index		job competition negotiations/anticipated negotiations


Published		Nov 19, 1996


Type		Order


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