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M-237

Document		M-237


Institution/HIC		City of Toronto


Summary		ORDER BACKGROUND: The City of Toronto (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to records which mentioned the requester, located in certain identified departments of the City. After clarifying with the requester that he was interested in records which "incorporate the name or address of the requester directly or indirectly in their subject matter", the City responded to the request. Access was granted to a number of records in total. The City denied access to other records, in whole or in part, claiming the exemptions in sections 12 and 38(a) of the Act . The City also informed the requester that, as disclosure of four of the records might affect the interests of two "third parties", these parties were being notified pursuant to section 21 of the Act . One of these parties did not respond; the other objected to the disclosure of the two records which might affect its interests. The City subsequently issued two more decision letters granting the requester access to all of the records which had been the subject of the section 21 notification. One of the parties who received notification appealed this decision of the City concerning the disclosure of two of these records. The issues arising in that appeal are addressed in a separate order. The remaining two records which had originally been the subject of the notification were disclosed to the requester. The requester appealed the decision of the City. Mediation of this appeal was not successful, and notice that an inquiry was being conducted to review the decision of the City was sent to the appellant and the City. Representations were received from the City only. In its representations, the City stated that three of the records at issue in this appeal might attract the application of section 10 of the Act . A supplementary Notice of Inquiry was then sent to the City, the appellant and a party whose interests might be affected by the disclosure of these three records (the affected party), requesting representations regarding the application of section 10. Representations on this issue were received from the City only. THE RECORDS: After reviewing the original request, as clarified, and the records at issue in this appeal, I am of the view that Records 9A and 9B are not responsive to the request. In my view, these documents do not "incorporate the name or address of the requester directly or indirectly in their subject matter". A list of the records remaining at issue and the corresponding exemptions claimed for each is contained in Appendix A to this order. Duplicate records are indicated in brackets. My decision will apply to both the original record and its duplicate, if any. ISSUES: The issues arising in this appeal are as follows: A. Whether the information contained in the records qualifies as "personal information" as defined in section 2(1) of the Act . B. If the answer to Issue A is yes, whether the discretionary exemptions provided by sections 12 and 38(a) of the Act apply. C. If the answer to Issue A is yes, whether the exemptions provided by sections 10 and 38(a) of the Act apply to Records 6B and 9C. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the information contained in the records qualifies as "personal information" as defined in section 2(1) of the Act . Section 2(1) of the Act defines "personal information", in part, as follows: "personal information" means recorded information about an identifiable individual, including, ... (b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved, ... (f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence, ... (h) the individual's name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual I have reviewed all the records at issue in this appeal. In my view, with the exception of Records 6A and 32, they all contain the personal information of the appellant. While Record 6A is responsive to the request in that it "indirectly incorporates the name of the requester in its subject matter", it is the attachment to this covering letter, Record 6B, that contains the actual personal information of the appellant. Record 32 contains information related to a matter in which the appellant was involved, but does not contain any of his personal information. ISSUE B: If the answer to Issue A is yes, whether the discretionary exemptions provided by sections 12 and 38(a) of the Act apply. The City has claimed that section 12 of the Act applies to all the records at issue in this appeal. This section states: 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. Section 12 consists of two branches, which provide the City 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). BRANCH 1 In order for a record to be subject to the common law solicitor-client privilege (Branch 1), the City 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 dir


Legislation		MFIPPA 2(1) personal information Section 12


Subject Index		in giving legal advice Solicitor Client Privilege


Published		Dec 08, 1993


Type		Order


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