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Document
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MO-1233
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Institution/HIC
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Town of Bradford West Gwillimbury
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Summary
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NATURE OF THE APPEAL: The Town of Bradford West Gwillimbury (the Town) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to the following: A copy of the recommendation made and settlement in the December 3, 1998 correspondence from [named law firm], which were received, approved and authorized in/by Resolution No. 38-029 (and later confirmed by By-law). In response to the request, the Town located a two-page letter from the law firm dated December 3, 1998, with an attached two page settlement agreement signed by the requester on the same date. The Town then wrote to the requester stating that: In accordance with the [ Act ], access is denied to your request for the December 3, 1998 correspondence from the [law firm] and which was dealt with in-camera. Access is denied under Section 12 of the Act being solicitor-client privilege in that the December 3rd letter was prepared by counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation. In accordance with the [ Act ], access is denied to your request for the [settlement agreement], said [settlement agreement] also dealt with in-camera. Access is denied under the following Sections of the Act : "4(b) The request for access is frivolous or vexatious" This opinion has been reached on reasonable grounds, in that your signature is on the document and you had input through and with the [law firm] as to the contents of the document. Section 12, already explained in this letter. The requester, now the appellant, appealed the Town's decision to this office. In his letter of appeal, the appellant stated: Pursuant to a settlement agreement on which I received an apology from a Town official, I furthermore insisted upon and the Town apparently agreed to execute releases additionally between us. The applicable Resolution approved and authorized the recommendations contained in correspondence by its [law firm] dated December 3, 1998, which was represented to me by the Town orally and only begrudgingly later in writing as approving and authorizing the settlement agreement. The Resolutions were then ratified by By-law. Those recommendations and settlement were the subject matter of the above refusal, and I have not received those documents. . . . . . . . . The Recommendations and Settlement were received approved and authorized by Resolution and By-law, which are public actions of a Municipal Corporation[] and, furthermore, it is legally required that Resolutions/By-laws are to be made available to the public under the Municipal Act , namely, sections 76 and 77. The Municipality may not publicly act while simultaneously hiding its actions and the content of the Resolution/By-law by indirect means; . . . . . . . . The contents of the December 3, 1998 correspondence and settlement agreement cannot be privileged as they have already been apparently communicated . . . During the mediation stage of the appeal, the Town provided the appellant with a copy of the settlement agreement. As a result, the sole record remaining at issue is the December 3, 1998 letter to the Town from the law firm. The Town also confirmed that it was withdrawing its reliance on the "frivolous or vexatious" claim under section 4(1)(b) of the Act . I sent of a Notice of Inquiry setting out the issues in the appeal to the Town and the appellant. I received representations from the appellant only. 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 appellant submits that the record is "about and concerning" him and includes his "name as well as his personal information especially regarding the subject matter of the lawsuit, counterclaim and settlement thereof." In my view, the record clearly contains personal information of the appellant regarding the appellant's action against the Town and the Town's Clerk-Administrator. RIGHT OF ACCESS TO ONE'S OWN PERSONAL INFORMATION/SOLICITOR-CLIENT PRIVILEGE Introduction Since the record contains the appellant's personal information, the provisions in Part II of the Act regarding the right of access to one's own personal information apply. Section 36(1) provides individuals with a general right of access to their own personal information in the custody or under the control of an institution. However, this right of access under section 36(1) is not absolute; section 38 provides a number of exceptions to this right. In particular, under section 38(a), a head may refuse to disclose to the individual to whom the information relates personal information if section 12 (solicitor-client privilege) (among others) would apply to the disclosure of that personal information. Branches 1 and 2 This section consists of two branches, which provide a head with the discretion to refuse to disclose: 1. a record that is subject to the common law solicitor-client privilege (Branch 1); and 2. a record which was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation (Branch 2). In order for a record to be subject to the common law solicitor-client privilege (Branch 1), the institution must provide evidence that the record satisfies either of the following tests: 1. (a) there is a written o
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Legislation
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Subject Index
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Published
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Sep 07, 1999
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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