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Document
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MO-1199-F
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Institution/HIC
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Kawartha Pine Ridge District School Board
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Summary
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NATURE OF THE APPEAL: The appellant made a request to the English-Language Public District School Board No. 14 (now the Kawartha Pine Ridge District School Board) (the Board) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The request was for a copy of the complete report dealing with consulting services regarding Employee Benefit Programs which was submitted to the Board at a meeting on April 16, 1998, as well as any supporting reports. The appellant was the unsuccessful bidder for a contract for consulting services. The Board initially denied access to the requested records on the basis that the records fell outside the scope of the Act by virtue of section 52(3). The Board claimed, in the alternative, that the records were exempt under the following sections of the Act : closed meeting - section 6(1)(b); third party information - section 10(1); and economic and other interests - sections 11 (c), (d), (e) and (f). The appellant appealed this decision. Upon receipt of the Confirmation of Appeal, the Board notified this office that the head was of the opinion that the request was frivolous or vexatious. I addressed the question of whether the appellant's request was frivolous or vexatious pursuant to section 4(1)(b) of the Act as a preliminary matter in Interim Order MO-1168-I. In that order, I found that the appellant's request was not frivolous or vexatious. I will not revisit this issue in this order. This final order will dispose of the issues arising from the Board's decision to deny access to the records. This office provided a Notice of Inquiry to the Board, the appellant and the successful bidder for the contract. Representations were received from all three parties. In its representations, the Board clarifies that it is relying on paragraphs 52(3)2 and 3 of the Act . RECORDS: The records at issue consist of the following reports: Record: 1 Report entitled "Benefit Consulting Proposals Analysis and Recommendations" to the Superintendent of Business Services and Treasurer from the Manager of Employee Relations and Supervisor of Personnel Administration, dated February 12, 1998; Record 2: Draft Report (memorandum) to the Superintendent of Business Services and Treasurer from the Manager of Employee Relations which contains a review of Record 1, dated March 10, 1998; and Record 3: Report entitled "Personnel Matter - Selection of Benefits Consultant" from Superintendent of Business Services and Treasurer to the Board, dated April 16, 1998. DISCUSSION: JURISDICTION The first issue in this appeal is whether the records fall within the scope of sections 52(3)2 and/or 3 and 52(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: ... 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. 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 52(4 ) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner's jurisdiction. Section 52(3)2 In order for the records to fall within the scope of paragraph 2 of section 52(3) of the Act , the Board must establish that: 1. The record was collected, prepared, maintained or used by the Board or on its behalf; and 2. This collection, preparation, maintenance or usage was in relation to negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the Board; and 3. These negotiations or anticipated negotiations took place or will take place between the Board and a person, bargaining agent or party to a proceeding or anticipated proceeding. [See Order M-861] The Board submits that the records were prepared by staff to be maintained and used by the Board, as well as by the Trustees on behalf of the Board. The Board points out that Record 3 in particular refers to the negotiation of new collective agreements for all unionized groups and the proposed involvement of the benefits plan administrator in such negotiations and in developing an overall plan for the Board. Therefore, the Board submits that the records refer to labour relations issues. The Board continues that the reports refer
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Legislation
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MFIPPA
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10(1)(a)
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10(1)(b)
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11(c)
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11(d)
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11(e)
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11(f)
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52(3)2
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52(3)3
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6(1)(b)
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Subject Index
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Published
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Mar 23, 1999
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Type
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Order – Final
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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