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Document
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MO-1270
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Institution/HIC
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City of Toronto
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Summary
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BACKGROUND: The appellant is an employee of the City of Toronto (the City). In January 1999, the appellant attended a written examination for a promotional position along with 27 other candidates. Two candidates were selected from this competition. The appellant was not one of the successful candidates. Following the competition, the unsuccessful candidates were invited to attend debriefings with the Human Resources consultant involved in the competition. During these debriefing sessions, the unsuccessful candidates were given a copy of their own examination sheets and were permitted to review the marking key and correct answers. They were then advised that any concerns they had would be forwarded to the individual who marked the examinations and they would be contacted further to discuss their concerns in detail. The appellant attended his debriefing session on April 27, 1999 but then left the meeting upon being told the basis on which the debriefing session was to proceed. NATURE OF THE APPEAL: The appellant submitted a request to the City under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) on April 26, 1999, the day before his debriefing session for the following information: ... a photocopy of my examination papers ... and a photocopy of the model answers against which my papers were marked. The purpose of this request is to evaluate my own performance in that situation. The City denied access to the requested records on the basis that they fall outside the scope of the Act by virtue of section 52(3)3 of the Act . The appellant appealed the City's decision. I sent a Notice of Inquiry to the appellant and the City. Representations were received from both parties. RECORDS: The records at issue consist of the appellant's written examination papers, the marking key and the correct answer sheets. DISCUSSION: JURISDICTION Sections 52(3) and (4) 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: 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. 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. 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: An agreement between an institution and a trade union. 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. 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. 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 . Section 52(3)3 In order for the record to fall within the scope of paragraph 3 of section 52(3), the City must establish that: it was collected, prepared, maintained or used by the City or on its behalf; and this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the City has an interest. [Order P-1242] Requirements 1 and 2 The City submits that the records at issue were all prepared, compiled and/or maintained for its use during the course of a job competition, including the interviewing, selection and debriefing of candidates and thus meet the first two requirements of section 52(3)3. Previous orders of this office have found that in the context of a job competition, an employment interview is a "meeting" and deliberations about the results of a competition are meetings, discussions or communications (Orders M-861 and P-1242). In addition, previous orders of this office have found that records generated with respect to these activities would either be for the purpose of, or as a result of, or substantially connected to these communications and are, therefore, properly characterized as being "in relation to" them (Order P-1258). I agree with this line of decisions and find that the records at issue were prepared, compiled and maintained for the City's use in relation to meetings, discussions and communications, thus meeting the first two requirements for section 52(3)3. Requirement 3 Previous orders of this office have found that job competitions by their very nature are clearly employment-related matters (Orders P-1242, P-1258 and M-1127). I agree with these orders and find that the records pertaining to the examinations held as part of the interview process are about an employment-related matter and the first part of the third requirement has been met. The only remaining iss
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Legislation
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Subject Index
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Published
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Jan 24, 2000
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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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