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Document
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M-954
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Institution/HIC
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Lambton County Board of Education
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Summary
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NATURE OF THE APPEAL: The Lambton County Board of Education (the Board) received a request foraccess to "all materials related to the appointment of supervisory officersto the Lambton County Board of Education in the spring of 1996." In its decision letter, the Board claimed that the records relating to thejob competition process for these positions fell outside the scope of the MunicipalFreedom of Information and Protection of Privacy Act (the Act )pursuant to section 52(3). The requester (now the appellant) appealed thisdecision to the Commissioner's office. This office sent a Notice of Inquiry to the Board and the appellant. Representations were received from the Board only. DISCUSSION: JURISDICTION The sole issue in this appeal is whether the requested records fall withinthe scope of section 52(3) of the Act . If so, they would be excludedfrom the scope of the Act unless they are records described in section52(4). Section 52(4) lists exceptions to the exclusions established in section52(3). The interpretation of sections 52(3) and (4) is a preliminary issue whichgoes to the jurisdiction of the Commissioner or her delegates to continue aninquiry. These sections state: (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 for the purpose of seeking reimbursement for expenses incurred bythe employee in his or her employment. Section 52(3) is record-specific and fact-specific. If this section appliesto a specific record, in the circumstances of a particular appeal, and none ofthe exceptions listed in section 52(4) are present, then the record is excludedfrom the scope of the Act and not subject to the Commissioner'sjurisdiction. The records at issue in this appeal consist of: Reports to a Committee of the Whole relating to the job competitionprocess A chart listing the candidates, their qualifications, experience,references, present positions An outline of the process to be followed Evaluation sheets and blank evaluation charts Interview questions and a question for written response Interview schedules Interview notes Summary of scores of all candidates and each interviewer's score chart forall candidates The Board made representations solely on the application of paragraph 3 ofsection 52(3). Section 52(3)3 In Order P-1242, former Assistant Commissioner Tom Mitchinson held that inorder for a record to fall within the scope of paragraph 3 of section 65(6) ofthe Freedom of Information and Protection of Privacy Act , which is theprovincial equivalent to section 52(3)3 of the Act , an institution mustestablish that: 1.the record was collected, prepared, maintained or used by theinstitution or on its behalf; and 2.this collection, preparation, maintenance or usage was in relation tomeetings, consultations, discussions or communications; and 3.these meetings, consultations, discussions or communications are aboutlabour relations or employment-related matters in which the institution has aninterest. Requirement 1 In its representations, the Board states the reports and other material inthis matter were prepared, maintained or collected to be used by the Board. Inmy view, it is clear that all of the records were either prepared, maintained orused by the Board. Therefore, Requirement 1 has been established. Requirement 2 The Board states the material was used for meetings held in relation to thejob competitions. In Order P-1223, former Assistant Commissioner Mitchinson stated that if thepreparation (or collection, maintenance, or use) of a record was "for thepurpose of, as a result of, or substantially connected to an activity listed in[sections 52(3)1, 2, or 3]", it would be "in relation to" thatactivity. Previous orders have found that, in the context of a job competition, anemployment interview is a "meeting" and that deliberations about theresults of a competition among the panel are "meetings, discussions orcommunications" (Orders M-861, P-1258). I agree with this assessment andadopt it for the purposes of this appeal. In my view, reports to the Committeeof the Whole on the progress of the job competitions and the finalrecommendations also constitute "communications" within the meaning ofthe second requirement. Orders M-861 and P-1258 also established that the records collected,prepared, maintained or used with respect to such meetings, discussions orcommunications are "in relation to" them as defined by formerAssistant Commissioner Mitchinson in Order P-1223. In the circumstances of this appeal, I find that the Board prepared,maintained or used all the records "in relation to" meetings,consultations, discussions or communications which took place around the jobcompetition process. Therefore, Requirement 2 has been met. Requirement 3 In order to satisfy the third requirement, the Board must establish thatthese meetings, consultations, discussions or communications are about labourrelations or employment-related matters in which it has an interest. The Board states that the meetings were about an employment-related matter,namely job competitions, and that the Board "has an intere
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Legislation
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Subject Index
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Published
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Jun 25, 1997
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Type
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Order
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