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Document
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M-233
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Institution/HIC
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City of Scarborough
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Summary
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ORDER BACKGROUND: The City of Scarborough (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to: copies of all written documentation distributed by Law Department staff to politicians during the period January 3 through March 26, 1993 which relates specifically to my employment with the City of Scarborough and the circumstances surrounding my termination of employment. The City identified two records as being responsive to the request. A letter dated February 17, 1993 and a memorandum dated March 2, 1993. The City denied access to these two records, based on the exemptions contained in sections 7 and 12 of the Act . The requester appealed the City's decision to deny access. During the course of mediation, the City agreed to withdraw its claim for the application of section 7 of the Act and to release paragraph 2 of the February 17, 1993 letter to the appellant. Further mediation was not successful and notice that an inquiry was being conducted to review the City's decision was sent to the appellant and the City. Representations were received from both parties. ISSUES: The issues to be determined in this appeal are: A. Whether the records contain "personal information" as defined by section 2(1) of the Act . B. Whether the discretionary exemptions provided by sections 12 and 38(a) of the Act apply to the records. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the records contain "personal information" as defined by section 2(1) of the Act . "Personal information" is defined in section 2(1) of the Act , in part, as follows: "personal information" means recorded information about an identifiable individual, including, ... (e) the personal opinion or views of the individual except where they relate to another individual, ... (g) the views or opinions of another individual about the individual, ... Record 1 is a letter dated February 17, 1993 from the City Solicitor to the Mayor of the City. Record 2 consists of a memorandum dated March 2, 1993 from the Director, Planning and Development Law, to the Mayor of the City. I have examined the records and, in my opinion, only Record 2 contains personal information. As this information consists of the views or opinions about the appellant it is, therefore, the personal information of the appellant as defined by section 2(1)(g) of the Act . It has been established in a number of previous orders that information provided by an individual in a professional capacity or in the execution of employment responsibilities is not the personal information of the individual who supplies the information (Orders 113, 139, 157 and P-257). Since the author of Record 2 provided her views in the course of her employment as Director, Planning and Development Law, her comments cannot be considered to be her personal information. To summarize, the only personal information at issue in this appeal is contained in Record 2 and consists of the personal information of the appellant only. ISSUE B: Whether the discretionary exemptions provided by sections 12 and 38(a) of the Act apply to the records. Section 12 of the Act provides as follows: A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation. This section consists of two branches, both of which have been claimed by the City, which provide it with the discretion to refuse to disclose: 1. a record that is subject to the common law solicitor-client privilege (Branch 1); and 2. a record which was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation (Branch 2). In order for a record to be subject to the common law solicitor-client privilege (Branch 1), the institution must provide evidence that the record satisfies either of the following tests: 1. (a) there is a written or oral communication; and (b) the communication must be of a confidential nature; and (c) the communication must be between a client (or his agent) and a legal advisor; and (d) the communication must be directly related to seeking, formulating or giving legal advice; OR 2. the record was created or obtained especially for the lawyer's brief for existing or contemplated litigation. [Order M-213] As indicated previously, Record 1 is a letter written by the City Solicitor to the Mayor of the City. Having reviewed this record and the representations of the City, I am satisfied that the letter can be characterized as a confidential written communication between a client and a legal advisor and that the document relates directly to the provision of legal advice. Accordingly, I find that Record 1 qualifies for exemption under the first branch of section 12 of the Act . In Order 210, Commissioner Tom Wright was called upon to interpret the meaning of "legal advice" for the purposes of the exemption provided under section 19 of the provincial Act (the equivalent of section 12 of the Act ). He dealt with this issue in the following fashion: The term "legal advice" is not defined in the Act . In my view, the term is not so broad as to encompass all information given by counsel to an institution to his or her client. Generally speaking, legal advice will include a legal opinion about a legal issue, and a recommended course of action, based on legal considerations, regarding a matter with legal implications. It does not include information given about a matter with legal implications, where there is no recommended course of action, based on legal considerations, and where no legal opinion is expressed. I believe that these comments are helpful in interpreting the scope and meaning of the fourth part of the test under branch one of section 12. That is, that the communication in question must be related to seeking, formulating or giving
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Legislation
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MFIPPA
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2(1) personal information
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2(1) personal information (g)
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Section 12
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Subject Index
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Published
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Dec 06, 1993
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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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