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M-1074

Document		M-1074


Institution/HIC		The Corporation of the City of Kingston


Summary		NATURE OF THE APPEAL: The Corporation of the City of Kingston (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for the names and job titles of all municipal employees who accepted buyouts in the Voluntary Exit Program (the VEP) sponsored by the Transition Board of the new City of Kingston. The City identified a four-page record which consists of the names and job titles of the City employees who accepted buyouts in the VEP. The City denied access to the record on the basis of the following exemption: invasion of privacy - section 14(1) The appellant appealed this decision, and also claimed that the matter is of a compelling public interest and that the record should be disclosed pursuant to section 16 of the Act . This office sent a Notice of Inquiry to the appellant and the City. Because the Appeals Officer assigned to the file identified the possibility that the record might fall within the scope of section 52(3) of the Act , this issue was included in the Notice. If section 52(3) applies, and none of the exceptions listed in section 54(4) are present, then the records are excluded from the scope of the Act and are not subject to the Commissioner's jurisdiction. Representations were received from both parties. DISCUSSION: JURISDICTION The interpretation of sections 52(3) and (4) is a preliminary issue which goes to the jurisdiction of the Commissioner or her delegates to continue an inquiry. If the requested records fall within the scope of section 52(3) of the Act , they would be excluded from the scope of the Act unless they are records described in section 52(4). Section 52(4) lists exceptions to the exclusions established in section 52(3). Sections 52(3) and (4) of the Act read 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. 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. Sections 52(3) and (4) are record-specific and fact-specific. If a record which would otherwise qualify under any of the listed paragraphs of section 52(3) falls within one of the exceptions enumerated in section 52(4), then the record remains within the Commissioner's jurisdiction and the access rights and procedures contained in Part 1 of the Act apply. Sections 52(3)1 and 2 The City submits that although the information was collected, prepared, maintained and used by the City, this was not in relation to proceedings or anticipated proceedings before a court or tribunal, nor were there any negotiations around the subject of the VEP. Therefore, the City submits that sections 52(3)1 and 2 does not apply. I agree that these sections are not applicable. Section 52(3)3 In order to fall within the scope of paragraph 3 of section 52(3) of the Act , the City must establish that: 1. the record was collected, prepared, maintained or used by the City or on its behalf; and 2. this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communication; and 3. these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the City has an interest. [Order P-1242] Requirements 1 and 2 The City states that the information contained in the record was collected, prepared, maintained and used by the City and, that it was in relation to consultations and communications about employment-related matters. Having reviewed the record, I find that it was clearly prepared and maintained by the City. I am also satisfied that the preparation and maintenance of the record was in relation to discussions and communications regarding the VEP. Therefore, Requirements 1 and 2 have been established. Requirement 3 In my view, the VEP is an employment-related matter. The only remaining issue is whether this matter can be characterized as one "in which the institution has an interest". In Order P-1242, I considered the meaning of this phrase in section 65(6)3, the provincial equivalent of section 52(3)3. I stated: [A]n "interest" must be a legal interest in the sense that the matter in which the Ministry has an interest must have the capacity to affect the Mini


Legislation		MFIPPA 14(1)(f) 14(2)(a) 52(3)3 Section 16


Subject Index		voluntary exit program


Published		Feb 06, 1998


Type		Order


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