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M-1091

Document		M-1091


Institution/HIC		Near North District School Board


Summary		NATURE OF THE APPEAL: The Near North District School Board, formerly the Nipissing Board of Education, (the Board) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for the following records respecting a job competition in which the requester was an unsuccessful candidate: All data and notes from the requester's interview. The requester's individual and overall point totals. All data and notes from the successful candidate's interview. The successful candidate's individual and overall point totals. Records relating to the successful candidate's formal education, upgrading and related work experience as it pertains to the job . The Board advised the requester that no records responsive to parts one to four of the request exist and that the one record responsive to part five was exempt from disclosure under section 14(1) of the Act . The requester, now the appellant, appealed the Board's decision and raised a concern that the individual responsible for making the decision on behalf of the Board had a conflict of interest in doing so as this individual may be biased against the appellant. A Notice of Inquiry was provided to the appellant, the Board and to another individual whose rights may be affected by the disclosure of the record (the affected person). The Board did not refer to the possible application of sections 52(3) and (4) of the Act in its decision letter. However, because it appeared that the requested records may fall outside the scope of the Act , the parties were asked to address the possible application of these sections to records which would be responsive. In addition, the parties were requested to make submissions with respect to the issue of whether the delegated head responsible for making the decision on behalf of the Board may be in a conflict of interest situation in responding to the appellant's request. PRELIMINARY ISSUES: CONFLICT OF INTEREST In Order M-457, former Assistant Commissioner Irwin Glasberg canvassed the question of conflict of interest in the context of the Act . He found that: The question of when a conflict of interest situation might arise under the Act has been canvassed by Management Board of Cabinet in its freedom of information and protection of privacy publication entitled "Handbook for Municipalities and Local Boards", April 1993. On pages 2 and 3 of this document, the authors address this issue in the following fashion: A conflict of interest may exist where a public official knows that he or she has a private interest that is sufficiently connected to his or her public duties to influence those public duties. The focus for conflict of interest is frequently financial matters. It may also arise when the head is meeting his or her decision making responsibilities under the Act . A head may be in a conflict of interest situation where it is reasonable to assume that he or she is making decisions based on their personal interest rather than the public interest. In some situations, the conflict of interest may be more apparent than real. It is recommended that delegations of the head's powers reflect the possibility of conflict of interest and provide alternate decision-makers in those instances. While the fact situations which define an actual or perceived conflict of interest can vary appreciably, I believe that the comments in the publication present a reasonable view on how these sorts of scenarios should be addressed. I agree with former Assistant Commissioner Glasberg that the above-noted statement accurately reflects the approach which ought to be taken in circumstances where a conflict of interest may arise. It is a well-established principle of natural justice that a decision-maker must not be biased as "no one shall be a judge in his own cause". In other words, an individual with a personal interest in the disclosure or non-disclosure of a record must not be the decision-maker who makes the determination with respect to disclosure. A breach of this fundamental rule of fairness will cause a statutory delegate, such as a delegated head under the Act , to lose jurisdiction. The result of this loss of jurisdiction is to render his or her decision void. The parties to this appeal were asked to address the following questions in order to assist in determining whether a breach of the rule against bias has occurred: Did the decision-maker have any kind of personal or special interest in the records? Would a well-informed person reasonably perceive bias on the part of the decision-maker? In his appeal letter and a letter forwarded to this office during the mediation of the appeal, the appellant raised concerns about the fact that the individual who made the decision with respect to his request was a member of the interview panel for the job competition which is the subject of the records requested. The appellant also objected to this individual making the decision on behalf of the Board because of certain past incidents in which he and the individual were involved. Because of these incidents, the appellant is particularly concerned that the delegated head may not have dealt with the request fairly. In response, the Board submits that the decision provided to the appellant would not have been any diff


Legislation		MFIPPA 22(1)(a) 52(3)3


Subject Index		Bias - see also Discretion - improper exercise - conflict of interest


Published		Apr 06, 1998


Type		Order


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