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Document
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M-945
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Institution/HIC
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Municipality of Metropolitan Toronto
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Summary
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NATURE OF THE APPEAL: The Municipality of Metropolitan Toronto (the Municipality) received arequest under the Municipal Freedom of Information and Protection of Privacy Act (the Act )for access to the General Welfare Assistance file (the GWA file) and theinvestigation file pertaining to the requester. The Municipality denied accessto the records in both files on the basis of sections 12 (solicitor-clientprivilege) and 38(a) (discretion to refuse requester's own information) of the Act . The requester appealed the decision. During mediation, the Municipality agreed to disclose some of the recordscontained in the GWA file to the requester, now the appellant. The Municipalityindicated that the remaining records relate to an ongoing civil suit between theMunicipality and the appellant. The appellant indicated that he was not seekingaccess to duplicate records or facsimile cover sheets. In this regard, I notethat Record 141 is such a facsimile cover sheet and I will, therefore, notconsider it as part of the records at issue. Accordingly, the records that remain at issue in this appeal are listed anddescribed in Appendix "A" to this order. These records are beingwithheld on the basis of sections 12 and 38(a) of the Act . This office provided a Notice of Inquiry to the appellant and theMunicipality. Representations were received from both parties. DISCUSSION: PERSONAL INFORMATION Under section 2(1) of the Act , "personal information" isdefined, in part, to mean recorded information about an identifiable individual. I have reviewed the records and I find that they contain the personalinformation of the appellant. DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION Section 36(1) of the Act allows individuals access to their ownpersonal information held by a government institution. However, section 38 setsout exceptions to this general right of access. Under section 38(a), theMunicipality has the discretion to deny access to an individual's own personalinformation in instances where certain exemptions would otherwise apply to thatinformation. Section 38(a) states: A head may refuse to disclose to the individual to whom the informationrelates personal information, if section 6, 7, 8, 9, 10, 11, 12 , 13 or 15 would applyto the disclosure of that personal information. [emphasis added] The Municipality has exercised its discretion to refuse access to all therecords in its investigation file and the remaining records in the GWA fileunder section 12. In order to determine whether the exemption provided bysection 38(a) applies to these records, I will first consider whether theexemption provided by section 12 applies. SOLICITOR-CLIENT PRIVILEGE Section 12 consists of two branches, which provide the Municipality with thediscretion 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 bythe Municipality for use in giving legal advice or in contemplation of or foruse in litigation (Branch 2). In order for a record to be subject to the common law solicitor-clientprivilege (Branch 1), the Municipality must provide evidence that the recordsatisfies the following: 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 legaladvisor, and (d)the communication must be directly related to seeking, formulating orgiving legal advice; OR 2.the record was created or obtained especially for the lawyer's brief forexisting or contemplated litigation. [Orders M-2 and M-19] The Municipality states that all income maintenance programs, includingsocial assistance, are administered by its Social Services Division whoselegislated authority for determining social assistance also includes derivativeauthority to conduct investigations into fraudulent applications and/or receiptof benefits. The Municipality explains that records compiled during theinvestigative stage of determining eligibility for welfare assistance are oftendeemed to have evidentiary value in over-payment or fraud cases and that theDivision employees are aware that notes of an investigatory nature can bepotentially obtained for the solicitor's brief in contemplation of litigation. The Municipality states that in the current case, an investigation into theappellant's eligibility for social benefits was commenced about four years afterhe first applied for and started to receive social assistance. The Municipality explains that it is currently involved in on-goinglitigation with the appellant. It submits that the records at issue constitutewritten and confidential communications between the Municipality and its legalcounsel and relate directly to the seeking or giving of legal advice in respectof the civil action. The Municipality submits that Records 1, 2 and 113 were provided to legalcounsel for the purpose of seeking legal advice and providing instructionsrelated to the anticipated proceedings. Records 139 and 140 are letters fromlegal counsel to its client (the Municipality) and relate to obtaininginstructions in respect of the anticipated legal proceedings. Having reviewed the records, I find that Records 1, 2, 113, 139 and 140 meetall the requirements for solicitor-client privilege and therefore, qualify forexemption under Branch 1. Accordingly, I find that these records qualify forexemption under section 12 of the Act and are therefore exempt section38(a). The Municipality states that part 2 of Branch 1 and Branch 2 apply to theremaining records in the appellant's GWA file and the investigation file. TheMunicipality submits that the records were obtained for and eventually formedpart of the lawyer's brief. In this regard, the Municipality relies on OrderP-1342. In this order, former Inquiry Officer Holly Big Canoe discussed thisaspect of the privilege and its application to such records and commented: The second part of Branch 1 has been called the "third partycommunications", the "lawyer's brief" and the "litigation"privilege. Records which do not represent communications between solicitor andclient may become privileged as a result of being copied for inclusion in thelawyer's brief for litigation, as long as there was an intention to keep themconfidential. I agree with my former colleague and I find that the reasoning articulatedin Order P-1342 applies equally in the circumstances of this appeal. I find,therefore, that all of the remaining records in the GWA file and theinvestigation file qualify for exemption from disclosure under the second partof Branch 1. Previous orders of the Commission have confirmed that the litigation aspect
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Legislation
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Subject Index
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Published
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May 29, 1997
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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