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Document
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MO-1374
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Institution/HIC
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The Corporation of the City of Oshawa
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Summary
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NATURE OF THE APPEAL: The appellant submitted two requests to The Corporation of the City of Oshawa (the City) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). Each request was dealt with separately by the City and both decisions were appealed to this office. Because the parties are the same and the issues are similar, I have decided to dispose of the issues raised in both appeals in this order. Appeal MA-990232-1 The appellant requested copies of all information, documentation, memoranda and other materials relating to the passage of City By-Law 56-99 on June 7, 1999. The City identified 86 responsive records and granted access in full to 42, partial access to six and denied access to the remaining 38 records in their entirety. For those records to which access was denied either in whole or in part, the City claimed exemptions pursuant to sections 6(1)(a) and (b), 8(1)(a), (c) and (g), 12 and 14(1) of the Act . The City further claimed that some of the information severed from Records 82, 83, 84, 85 and 86 was not responsive to the request. The City provided the appellant with an index which described the records and the exemptions claimed for each. I will use the City's numbering scheme for the purpose of this inquiry. The appellant appealed the City's decision. During mediation, the City disclosed the attachments to Record 80 to the appellant and the appellant agreed not to pursue access to Records 10, 14, 82, 83, 84, 85, 86 and the remaining portions of Record 80. Therefore, these records are no longer at issue in this appeal. Because sections 8(1)(a), (c) and (g) were claimed only for Record 10 and section 14(1) was claimed only for Record 14, these sections are also no longer at issue in this appeal. As a result, the exemptions at issue in Appeal MA-990232-1 are: draft by-law - section 6(1)(a); closed meeting - section 6(1)(b); and solicitor-client privilege - section 12. Appeal MA-990295-1 The appellant requested access to "all information, documentation, memorandum and other materials ... in possession of the City of Oshawa relating to the passage of By-law 37-93 Schedule 'P'." The appellant also requested "all information, documentation, memorandum and any and all other materials relating to By-law 6-96." The appellant clarified that the request included but was not limited to "all documents from the Durham Regional Police Service to the City of Oshawa and vice versa, all reports prepared internally or publicly by the City of Oshawa, by the Department of Developing and Planning Services, by the Public Security Panel, by the Development and Corporate Services Community, any and all documents relating to the By-law which were produced prior to its enactment and subsequent thereto to the present day." The City located 122 responsive records and granted access to 84 of them. The City denied access to the remaining records pursuant to sections 6(1)(a) (draft by-law) and 12 (solicitor-client privilege) of the Act . The City also charged a fee of $115.60 which the appellant paid. The appellant appealed the City's decision. Notices of Inquiry and Representations I sent two Notices of Inquiry to the City but subsequently advised it that the two appeals would be combined and dealt with together. During the inquiry stage, the City reconsidered its decision in Appeal MA-990232-1. In a decision letter to the appellant, the City indicated that it decided to disclose Records 36 and 38 to him. Therefore, these two records are no longer at issue. The City submitted representations for both appeals jointly and consented to sharing them with the appellant in their entirety. In its representations, the City indicates that it withdraws its reliance on the exemption in section 6(1)(a) for the attachment to Record 86, which is a draft by-law, as it was considered at a meeting open to the public (section 6(2)(a)), and to Record 87, which is a duplicate of this attachment (in Appeal MA-990295-1). Also, the City indicates that upon review, it has decided that Records 92, 100, 101, 118 and page 1 of Records 90 and 93 in Appeal MA-990295-1 do not reveal any privilege and therefore, no longer relies on the application of section 12 for them. As a result, Records 87, 92, 100, 101, 118, page 1 of Records 90 and 93 and the attachment to Record 86 are no longer at issue in this appeal and should be disclosed to the appellant. The City notes further that Records 90 and 91 contain, in addition to a draft by-law, a draft report which it indicates is a duplicate of Record 85. Accordingly, any decision I make regarding Record 85 will also be applicable to the draft reports in Records 90 and 91. In addition, the City raises the possible application of section 6(1)(a) for Record 62 in Appeal MA-990232-1 for the first time in its representations. Previous orders issued by the Commissioner's office have held that the Commissioner or her delegate has the power to control the manner in which the inquiry process is undertaken. This includes the authority to limit the time-frame during which an institution can raise new discretionary exemptions not originally cited in its decision letter (Orders P-658 and P-901). As part of its efforts to expedite the processing of access appeals and in order to sensitize institutions about the prejudice which accrues to appellants when discretionary exemptions are not applied promptly, the Commissioner's office issued an IPC Practices publication in January 1993, entitled "Raising Discretionary Exemptions During an Appeal". This document, which was sent to all provincial and municipal institutions, established a 35-day time limit for the raising of new discretionary exemptions; the time to begin running as of the date of confirmation of the appeal. In the Confirmation of Appeal that was sent to the City on August 26, 1999, it was advised that it would be permitted to raise any new discretionary exemptions up to October 1, 1999. The City has not indicated why it has decided to rely on a new discretionary exemption (as it relates to this record) so late in the appeal process. However, because of the manner in which I have disposed of this record in the discussion below, it is not necessary for me to deal with the po
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Legislation
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MFIPPA
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6(1)(a)
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6(1)(b)
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Section 12
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Subject Index
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Published
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Dec 07, 2000
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Type
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Order
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