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Document
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MO-1215
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Institution/HIC
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Township of North Stormont
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Summary
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NATURE OF THE APPEAL: The Township of North Stormont (the Township) received a request under the Municipal Freedom of Information and Protection of Privacy (the Act ) from two former employees. The request was for a copy of reports prepared by two named individuals and an audit completed in relation to the Moose Creek Water & Sewer Project (the Project). The Township identified two responsive records and, pursuant to section 21 of the Act , notified two parties whose interests might be affected by disclosure. One party expressed no concern with disclosure, and the other party (the affected person) objected. The Township subsequently issued its decision letter to the requesters, granting access to one record and denying access to the other one, which relates to the affected person, pursuant to sections 6(1)(b), 10(1)(b), 14(1)(f) and 52(3) of the Act . The Township also informed the requesters that the audit had not yet been completed and was therefore "not yet a record in the Township's possession." The requesters (now the appellants) appealed the portion of the Township's decision relating to the second record. This record consists of a five-page letter written by the affected person to the Township about the Project. A Notice of Inquiry was sent to the appellants, the Township and the affected person. Because the record dealt directly with the appellants, I included sections 38(a) and (b) of the Act in the Notice as potentially relevant issues. Representations were received from all three parties. DISCUSSION: JURISDICTION The interpretation of sections 52(3) and (4) of the Act is a preliminary issue which goes to the Commissioner's jurisdiction to continue an inquiry. These sections read as follows: (3) Subject to subsection (4), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following: 1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution. 2. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding. 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. (4) This Act applies to the following records: 1. An agreement between an institution and a trade union. 2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters. 3. An agreement between an institution and one or more employees resulting from negotiations about employment- related matters between the institution and the employee or employees. 4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment. Section 52(3) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in section 52(4) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner's jurisdiction. The Township relies on section 52(3)3. The affected person supports the Township's position. Section 52(3)3 In order for the record to fall within the scope of paragraph 3 of section 52(3), the Township must establish that: 1. it was collected, prepared, maintained or used by the Township or on its behalf; and 2. this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and 3. these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the Township has an interest. [Order P-1242] Requirement 1 The Township explains that the record was prepared on its behalf by the affected person, and subsequently used by Council. The Township has provided me with a copy of Council's resolutions dated March 16, 1998 and March 24, 1998, as well as the sworn affidavit of the Township's Reeve, confirming that the record's preparation was authorized by Council. In my view, the record was clearly prepared and used for the purpose of reviewing the Project, and I find that the first requirement of section 52(3)3 has been established. Requirement 2 The Township submits that the preparation and usage of the record was in relation to discussions by Council at an in camera meeting held on April 25, 1998. The Township has provided me with copies of the minutes of its March 16, 1998, March 24, 1998 and May 12, 1998 meetings, but not its April 25, 1998 meeting. The only evidence that such a meeting took place is a statement to that effect in the affidavit submitted by the current Reeve as part of the Township's representations. On the basis of the Reeve's affidavit, I find that a Council meeting was held on April 25, 1998, and that the record was used in discussions at this meeting, thereby satisfying the second requirement of section 52(3)3. It is not necessary for me to determine whether this meeting was a properly authorized in camera meeting for the purpose of my finding. Requirement 3 The Township states that the discussions at the April 25, 1998 meeting concerned financial irregularities as well as the performance of the appellants regarding the Project. The Township points out that the appel
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Legislation
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MFIPPA
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10(1)(b)
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38(b)
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52(3)3
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6(1)(b)
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Subject Index
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Published
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May 27, 1999
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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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