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M-941

Document		M-941


Institution/HIC		The Corporation of the Town of Oakville


Summary		NATURE OF THE APPEAL: The Corporation of the Town of Oakville (the Town) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to two reports: "Department of Public Works Operational Review" dated October, 1990 and "Management of Change Recommendations for the Construction Inspection Unit" dated June, 1994. The Town granted access to the 1994 report but denied access to the 1990 report. The Town claimed that the 1990 report fell within the parameters of section 52(3)3 of the Act and therefore, outside the scope of the Act . The Town indicated that even if section 52(3) did not apply, the record was exempt from disclosure under section 6(1)(b) (closed meeting) of the Act . The requester, a former employee of the Town, appealed the decision to deny access. During mediation and within the timeline established by the Commissioner's office for the raising of additional discretionary exemptions, the Town issued a supplementary decision letter, indicating that sections 7(1) (advice or recommendations) and 11(f) (economic and other interests) of the Act , also applied to the record. The record at issue is a report of an operational review of the Town's Department of Public Works, prepared by consultants retained by the Town for this purpose. The report, dated October 1990, identifies and addresses issues in the following areas: operational and strategic planning, communications, department structure and staffing, operating changes in each section, overall management direction and financial implication. This office provided a Notice of Inquiry to the appellant and the Town. Representations were received from both parties. DISCUSSION: JURISDICTION The first issue in this appeal is whether the report falls within the scope of sections 52(3) and (4) of the Act . These sections 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 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 The Town submits that section 52(3)3 applies to exclude the record from the Act . In Order P-1242, former Assistant Commissioner Tom Mitchinson found that in order to fall within the scope of paragraph 3 of section 65(6) of the provincial Act , which is the equivalent of section 52(3)3 of the Act , the institution, in this case, the Town, must establish that: 1. the record was collected, prepared, maintained or used by the Town or on its behalf; and 2. this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communication; and 3. these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the Town has an interest. I agree with this analysis and will apply it in the present appeal. Requirements 1 and 2 The Town states that the report was prepared on its behalf, by consultants retained to conduct an operational review of its Public Works department. The Town submits that the consultants were retained "to provide advice in the form of a report with regard to the Town's Department of Public Works in the areas of short term and long term strategic operational planning, the structure and staffing levels of the operational units and the efficiency and effectiveness of the operation." The Town also states that the report was prepared to assist the council in its discussions related to the Public Works department and has provided evidence that the report was presented to the council. Having reviewed the report, I find that it was clearly prepared on behalf of the Town by the consultants. I am also satisfied that the preparation and use of the report was directly connected to the council meetings, discussions or communications and it can properly be characterized as being "in relation to" them (Order P-1242). Therefore, Requirement 2 has also been established. Requirement 3 I must now determine whether the communications and meetings were about employment or labour related matters. The Town submits that the report relates to the "short term and the long term planning for the Department... and focused on the staffing levels and staff functions" and therefore, was directly related to labour relations and employment related matters in which the Town has an interest. I have carefully reviewed the record. While the report includes suggestions f


Legislation		MFIPPA 11(f) 52(3)3 6(1)(b) 7(1) 7(2)(e)


Subject Index		authorized by statute or by-law consultant's report deliberative process operational review of town department performance or efficiency report proposed plans or policies


Published		May 22, 1997


Type		Order


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