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Document
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M-729
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Institution/HIC
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City of Oshawa
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Summary
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NATURE OF THE APPEAL: The City of Oshawa (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to all records relating to a proposed "No Loitering" by-law which was being considered by the City at the time of the request. The City identified a number of responsive records and provided the requester with access to 55 documents in their entirety, as well as parts of seven others. The City denied access to the remaining 23 records, in whole or in part, claiming the application of the following exemptions contained in the Act : draft by-law - section 6(1)(a) relations with other governments - section 9 third party information - section 10 solicitor-client privilege - section 12 information published or available - section 15(a) The requester (now the appellant) appealed the decision. The records at issue in this appeal consist of memoranda, letters, legal opinions and a series of draft by-laws, which were identified in an index prepared by the City and forwarded to the appellant with the City's final decision letter. A Notice of Inquiry was provided to the City, the appellant and the City of Kitchener (Kitchener) which was identified as having an interest in the disclosure of two of the records at issue. DISCUSSION: DRAFT BY-LAW The City has claimed the exemption in section 6(1)(a) of the Act in respect of Records 19, 20, 22, 28, 83 and 84. Section 6 states: (1) A head may refuse to disclose a record, (a) that contains a draft of a by-law or a draft of a private bill; or (b) that reveals the substance of deliberations of a meeting of a council, board, commission or other body or a committee of one of them if a statute authorizes holding that meeting in the absence of the public. (2) Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record if, (a) in the case of a record under clause (1) (a), the draft has been considered in a meeting open to the public; (b) in the case of a record under clause (1) (b), the subject matter of the deliberations has been considered in a meeting open to the public; or (c) the record is more than twenty years old. Records 20, 28, 83 and 84 Records 20, 28, 83 and 84 are all copies of drafts of the by-law at issue. The City's representations in respect of these drafts of the by-law are limited to statements that these records were reviewed at in camera meetings and were not reviewed in a meeting to which the public had access. The City has not provided particulars of the dates of the in camera meetings at which these drafts of the by-law were considered. The appellant, on the other hand, submits that drafts of the by-laws were discussed at three meetings of the Executive Committee of the Council of the City held on June 20, 1994, July 4, 1994 and July 18, 1994 and that the portions of the meetings at which the drafts were discussed were not held in camera. He submits, accordingly, that the exception to the section 6(1)(a) exemption which is provided by section 6(2)(a) applies to these records. By way of evidence, the appellant has provided copies of the minutes of the Executive Committee meetings on those dates which indicate that drafts of the subject by-law were discussed. The appellant notes that the minutes do not indicate that these portions of the meetings of the Executive Committee were held in camera. He points out that, in fact, the minutes of the July 4, 1994 meeting contain notations that the Executive Committee reviewed other matters at that meeting "in camera", but that the portion of the meeting relating to the draft by-law has no such notation. In Order M-102 Commissioner Tom Wright in considering the onus on an institution in establishing the application of the exemption provided by section 6(1)(b) stated: Since meetings in the absence of the public are such a departure from the norm, in my opinion, there must be clear and tangible evidence that the meeting or parts of it were actually held in camera. For example, evidence could consist of a notation in the minutes of the meeting that a decision was made that the public be excluded from the meeting while a particular agenda item was discussed. I agree and, in my opinion, an institution claiming the exemption in section 6(1)(a) has the onus of providing sufficient evidence to demonstrate that the record at issue does not fall within the exception set out in section 6(2)(a) of the Act . In the present appeal, the City has simply stated that the draft by-laws were considered at in camera meetings but has not provided any evidence to substantiate that fact. The appellant, however, has provided evidence that these records were, in fact, considered during the public portions of the Executive Committee meetings. I am satisfied, on the evidence provided to me, that the exception to the section 6(1)(a) exemption set out in section 6(2)(a) applies to Records 20, 28, 83 and 84. Accordingly, I find that the exemption in section 6(1)(a) does not apply to these records, Records 19 and 22 Records 19 and 22 are memoranda which refer to drafts of the by-law. In addition to section 6(1)(a), the City has claimed that the exemption provided by section 12 of the Act applies to these records. Because of the findings I have made in relation to the section 12 exemption claim below, it is not necessary for me to address the claim made under section 6(1)(a) for these records. INFORMATION PUBLISHED OR AVAILABLE The City has claimed the exemption provided by section 15(a) of the Act in relation to Records 90 and 91. Record 90 consists of several hundred photocopied pages of reported court decisions. Record 91 consists of 60 pages of photocopies of legal texts, statutes and by-laws. In the case of both records a number of handwritten notes have been made on the printed materials. The City has also claimed the exemption provided by section 12 of the Act in relation to the notes. That exemption claim will be dealt with later in this order. Section 15(a) states: A head may refuse a to disclose a record if, the record or the information contained in the record ha
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Legislation
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MFIPPA
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6(1)(a)
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6(2)(a)
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Section 12
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Section 15
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Subject Index
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Published
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Mar 12, 1996
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Type
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Order
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