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Document
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MO-1351
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Institution/HIC
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City of Welland
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Summary
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NATURE OF THE APPEAL: The City of Welland (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for a copy of two identified reports. The City advised the requester that one report was publicly available, and denied access to the other report pursuant to section 7(1) of the Act (advice and recommendations). The requester, now the appellant, appealed the City's decision. The record at issue is a report prepared by a consultant retained by the City to investigate an allegation of workplace harassment made by the appellant during her period of employment with the City. The investigation was undertaken in accordance with the City's Workplace Harassment Policy. During mediation, two additional issues were identified. The mediator raised the possibility that the report is excluded from coverage under the Act by virtue of section 52(3). Sections 14 and 38 of the Act were raised because the report appears to contain the personal information of both the appellant and other identifiable individuals. Mediation was not successful, so I sent a Notice of Inquiry initially to the City and to the respondent in the harassment investigation, whose interests might be affected by this appeal (the affected person). I received representations from both the City and the affected person. I then sent the Notice to the appellant, together with a copy of the non-confidential portions of the City's representations. The appellant advised this Office that she would not be providing any representations. RECORDS: The record is a 17-page investigation report, as described above. DISCUSSION: JURISDICTION Sections 52(3) and (4) read, in part, as follows: (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. ... 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 section 52(4) are present, then the record is excluded from the scope of the Act . The City submits that the record falls within the parameters of paragraphs 52(3)1 and 3. In order for the record to fall within the scope of section 52(3)1, the City must establish that: the record was collected, prepared, maintained or used by the City or on its behalf; and this collection, preparation, maintenance or usage was in relation to proceedings or anticipated proceedings before a court, tribunal or other entity; and these proceedings or anticipated proceedings relate to labour relations or to the employment of a person by the City. To qualify under section 52(3)3, the City must establish that: the records were collected, prepared, maintained or used by the City or on its behalf; and this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the City has an interest. [Order P-1242] Requirement one - sections 52(3)1 and 3 The City's representations provide an outline of the appellant's history of employment with the City, and a review of the circumstances leading to initiation of the investigation and preparation of the report. The City states that the investigation was initiated as a result of complaints made by the appellant under the City's Workplace Harassment Policy, and the report was prepared on behalf of the City by an independent consultant hired to undertake the investigation. The City further submits that the report was used by the City in considering what actions to take in response to the appellant's complaints concerning the affected person. I am satisfied that the report was prepared and used by the City, and I find that the first requirement of sections 52(3)1 and 3 has been established. Requirement two - section 52(3)1 The City submits that the report was prepared in contemplation of legal proceedings, either in a court or before the Ontario Human Rights Commission. The City's representations include quotations from documents the appellant provided to the City prior to the preparation of the report, in which she identifies various possible legal actions. At the time the consultant undertook the investigation and submitted her report, I am satisfied that it was prepared in relation to anticipated proceedings before a court or tribunal. However, my decision regarding the application of section 52(3)1 does not end the
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Legislation
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MFIPPA
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38(b)
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52(3)1
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52(3)3
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Subject Index
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Published
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Oct 19, 2000
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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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