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Document
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M-92
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Institution/HIC
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Town of Ajax
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Summary
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ORDER BACKGROUND: The Town of Ajax (the "Town") received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to a copy of a report prepared by the Director of Transit on the feasibility of the Town assuming the service of public transportation within the Town. The Town identified a report and certain internal memoranda as responsive to the request, and granted access to a portion of the report. The Town denied access to the internal memoranda pursuant to sections 7(1), 11(e) and (f) of the Act , and to portions of section 5 of the report pursuant to sections 11(c), (d), (e) and (f) of the Act . The requester appealed the denial of access based upon the referenced exemptions, and indicated that he was only interested in the portions of section 5 of the report which were not disclosed to him. Mediation of the appeal was not possible, and notice that an inquiry was being conducted to review the Town's decision was sent to the Town and the appellant. Written representations were received from the Town. The appellant indicated that he had no additional submissions to make. The record in issue in this appeal consists of severed portions of section 5 of the report entitled "Contract Review and Analysis", which was prepared by the Director of Transit. Access was denied to portions of section 5 as follows: Section severed Exemption relied on Section 5.1 Section 11(e),(f) Section 5.2 Paragraph 2 Section 11(e),(f) Section 5.3 Paragraph 2 Section 11(e),(f) Section 5.4 Paragraph 1 Section 11(e),(f) Section 5.4 Paragraphs A, B, C, and D Section 11(c),(e) Section 5.4 Last Paragraph Section 11(c),(d),(e) During the course of processing this appeal, the Town identified that it was prepared to release to the appellant the last paragraph of section 5.4. This portion of the record and section 11(d) are, therefore, no longer at issue. ISSUES: The issues arising in this appeal are: A. Whether the discretionary exemption provided by section 11(f) of the Act applies. B. Whether the discretionary exemption provided by section 11(e) of the Act applies. C. Whether the discretionary exemption provided by section 11(c) of the Act applies. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 11(f) of the Act applies. Section 11(f) of the Act reads as follows: A head may refuse to disclose a record that contains, plans relating to the management of personnel or the administration of an institution that have not yet been put into operation or made public; In order to qualify for exemption under section 11(f) of the Act , the Town must establish that a record satisfies each element of a three-part test: 1. the record must contain a plan or plans, and 2. the plan or plans must relate to: i) the management of personnel or ii) the administration of an institution, and 3. the plan or plans must not yet have been put into operation or made public. [Orders M-77, P-229] In previous orders, the word "plan" has been defined as "a formulated and especially detailed method by which a thing is to be done; a design or scheme" (Orders M-77, P-229). I adopt the above test, as well as the definition of "plan". The record in this appeal originated as a report prepared by the Director of Transit for discussion at an in-camera meeting of the Executive and Development Committee of the Town. The report includes a review of transit systems operated by municipalities throughout Ontario (section 2); a review of the transit services currently provided to the Town, including a review of possible options available to the Town (sections 3 and 4); a section entitled "The Municipality Operating its own Transit System" (section 5); and two appendices which consist of the internal memoranda referenced above (sections 6 and 7). The only portions of the report in issue in this appeal are the portions of section 5 which were not provided to the appellant. In its representations, the Town indicates that Town Council passed a resolution which read as follows: "That the Town of Ajax undertake the necessary action to operate its own Transit System effective January 1, 1993, as per the report of T.N. Barnett dated June 17, 1992" and, therefore, adopted the report as its plan. The record is a review and analysis of the transit contract in effect in the Town, including observations and recommendations for change. The record does not contain the sort of detailed methods, schemes or designs that are characteristic of a plan. It appears to be a document which provides advice for developing a plan or plans to resolve the issues, but is not, in my view, a plan itself. In my view, the record does not consist of or contain a plan or plans and, therefore, the first requirement of the test for exemption under section 11(f) has not been satisfied. Accordingly, I find that the exemption found in section 11(f) of the Act does not apply to section 5.1, section 5.2 (paragraph 2), section 5.3 (paragraph 2), and section 5.4 (paragraph 1). ISSUE B: Whether the discretionary exemption provided by section 11(e) of the Act applies. The Town submits that all of the severed portions of the record qualify for exemption under section 11(e) of the Act . Section 11(e) of the Act reads as follows: A head may refuse to disclose a record that contains, positions, plans, procedures, criteria or instructions to be applied to any negotiations carried on or to be carried on by or on behalf of an institution; Section 11(e) of the Act is similar to section 18(1)(e) of the provincial Freedom of Information and Protection of Privacy Act (the provincial Act ). Accordingly, orders issued under section 18(1)(e) of the provincial Act are useful in interpreting section 11(e) of the Act . In my view, for a record to qualify for exemption under section 11(e), each part of the following test must be established: 1. the record must contain positions, plans, procedu
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Legislation
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Subject Index
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Published
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Mar 02, 1993
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Type
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Order
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