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Document
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M-815
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Institution/HIC
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City of Toronto
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Summary
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NATURE OF THE APPEAL: The appellant made a request to the City of Toronto (the City) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to all personal information about him held by the City. The appellant, an employee of the City, had been accused of workplace improprieties. Following an investigation, the appellant was dismissed. He grieved the dismissal, and this grievance is currently in process. The City located 611 pages of responsive records in the following three locations: the appellant's personnel file the file of the Director of the division which employed the appellant the investigation file The records include letters, minutes, correspondence, notes, memoranda, records of inspection and other supporting documentation. The City granted access in whole or in part to 172 pages, and denied access to the remaining 439 pages on the basis of one or more of the following exemptions: advice to government - section 7(1) law enforcement - sections 8(1)(a) and (b), 8(2)(a) and (c) third party information - section 10 economic interests of the institution - sections 11(c), (d), (e) and (f) solicitor-client privilege - section 12 invasion of privacy - section 14(1) discretion to deny requester's own personal information - section 38(a) and (b) The appellant appealed the City's decision. During mediation, the City disclosed additional pages to the appellant, and the appellant advised the Appeals Officer that he did not require any of the pages to which only partial access was granted, or to pages containing personal information of other individuals. The City also issued a second decision letter, claiming additional exemptions under sections 8(1)(d) and (f) and 11(g) of the Act ; and a third letter, claiming that all of the records fall within the parameters of paragraphs 1, 2 and 3 of section 52(3) of the Act , and therefore outside the scope of the Act . Because section 52(3) raises the issue of the Commissioner's jurisdiction to hear an appeal, this office sent a Notice of Inquiry to the appellant and the City seeking representations on the jurisdictional issue only. Only the City submitted representations. Shortly after submitting its representations, the City informed this office that two pages of records had been removed from the appellant's personnel file, pursuant to a request made by the appellant under the collective agreement between the City and the appellant's union. In the City's view, this action removed these pages from the scope of the appeal. I cannot consider this issue unless I have jurisdiction to hear the appeal, so I have decided to treat these two pages as within the scope of the appeal for the purpose of determining my jurisdiction. DISCUSSION: The only 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 52(4 ) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner's jurisdiction. In its representations, the City states that all the information contained in the records relates to steps taken by the City to investigate allegations of possible improper and illegal conduct on the part of a number of employees of the City, including the appellant. As a result of these investigations, the appellant's employment was terminated. He later filed a grievance under the collective agreement between the City and Local 79 of the Canadian Union of Public Employees (CUPE). The matter proceeded through the grievance procedure set out in the collective agreement, and was referred to labour arbitration by the union representing the appellant. The arbitration hearing began in early 1996, but was adjourned and is to continue in October. According to the City, all of the records are being used in the labour arbitration. In its decision letter, the City claimed that paragraphs 1, 2 and 3 of section 52(3) all apply to exclude the records from the Act . I will first consider section 52(3)1. Section 52(3) of the municipal Act is identical in wording to section 65(6) of the Freedom of Information and Protection of Privacy Act (the provincial Act ). I considered the interpretation of section 65(6)1 in Order P-1223, and the reasoning in that order is equally applicable in relation to section 52(3)1. In order for a record to fall within the scope of paragraph 1 of section 52(3) of the Act , the City must establish that:
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Legislation
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MFIPPA
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52(3)
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52(3)1
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52(4)
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Subject Index
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Published
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Aug 02, 1996
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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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