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Document
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MO-1249
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Institution/HIC
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Sudbury Regional Police
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Summary
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NATURE OF THE APPEAL: The appellant was an auxiliary member with the Sudbury Regional Police Service (the Police). She resigned from this position in February, 1996. She subsequently submitted a request to the Police pursuant to the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for her entire "personnel file". The Police denied access to the requested records on the basis that they fall outside the jurisdiction of the Act pursuant to paragraphs 1 and 3 of section 52(3). The appellant appealed the denial of access. I sent a Notice of Inquiry to the appellant and the Police. Representations were received from the Police only. RECORDS: There are 69 records at issue. They include the appellant's application form, testing and interview results, memoranda, statements and incidents summaries. DISCUSSION: JURISDICTION The sole issue in this appeal is whether the records fall within the scope of sections 52(3)1 and 3 and 52(4) of the Act . These provisions read: (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. ... 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 52(4 ) are present, then the record is excluded from the scope of the Act . Preliminary matter "employment" As noted above, section 52(3)1 contains a requirement that the "proceedings or anticipated proceedings" relate to the "employment of a person by the institution". Section 52(3)3 requires that "meetings, consultations, discussions or communications" be about an "employment-related matter". In my view, a finding that either section applies in the circumstances of this appeal turns on whether the appellant is engaged in "employment". In this regard, I note that auxiliary police officers are volunteers. However, the Police Services Act (the PSA ) recognizes and refers to auxiliary officers in such a way as to raise a question as to whether they enjoy a certain status similar to police officers and other paid staff. The question I must decide is whether an auxiliary police officer is in an employment relationship with the Police such that there is the potential for engaging the section 52(3) interests. In Order M-899, I addressed this issue with respect to full-time police officers as follows: The appellant submits that a police officer is not an employee and that police discipline is a private matter between the Crown and the individual public officer. The appellant asserts that a PSA hearing "has nothing to do with 'the employment of a person by an institution'" [emphasis added]. Therefore, any records documenting the disciplinary proceeding are also not in relation to "the employment of a person by the institution". In support of this position, the appellant refers to several court cases which have determined that there is no master-servant relationship between a police officer and a municipality or police board (see Appendix "A" for full citations of the cases referred to by the appellant). The cases which the appellant cited are unanimous in finding that police officers are not considered to be employees. The Police state that police officers receive salaries and benefits from the institution. They assert further that despite the special status provided by the PSA to police officers with respect to their authority and responsibilities, the Uniform Collective Agreement (section 3.01(a) - Article 3 - Management Rights) acknowledges that management has certain authority over police officers, and therefore, establishes an employer-employee relationship. The Police also refer to a number of provisions of the PSA concerning employment-related activities and have submitted a number of recruitment and other Human Resources forms used by the Employment Unit of the Police. They note, in particular, the Application for Employment and Offer of Employment documents which contain specific references to the employment of the police officer by the institution. For example: The acknowledgment at the end of the Application for Employment, which is signed by the applicant, states: The information which I have provided is correct to the best of my knowledge and I understand that a misrepresentation may disqualify me from employment, or cause my dismissal if already employed with the Service. The first paragraph of the Offer of Employment provides: This is to confirm your employment as a Police Constable with the Metropolitan Toronto Police Service, subject to approval of the Police Services Board ... Your continued employment is contingen
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Legislation
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Subject Index
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Published
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Nov 08, 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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