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Document
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MO-1332
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Institution/HIC
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City of Hamilton
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act) , from a decision of the City of Hamilton (the City). The requester (now the appellant) made a request to the City for access to a copy of the severance agreements for nine named individuals formerly employed by either the City or by the Regional Municipality of Hamilton-Wentworth. This appeal deals with the severance agreements relating to the five individuals formerly employed by the City. Upon receipt of the request, the City contacted the five individuals (also called the "affected parties") and invited them to submit written representations expressing their views on the release of the information. Upon receipt of the submissions, the City sent a decision to the appellant denying access to the agreements in their entirety. The City cited a concern that the release of the agreements would constitute an unjustified invasion of the individuals' personal privacy, relying on the factors found in sections 14(2)(f) (highly sensitive personal information), 14(2)(h) (information supplied in confidence) and 14(2)(i) (damage to reputation) of the Act and the presumptions found in sections 14(3)(c) (social service or welfare benefits), (14)(3)(d) (employment history), and 14(3)(f) (finances, income etc.). The City also relied on the discretionary exemptions found in sections 11(a) (trade secrets and other information), 11(c) (prejudice to economic interests) and 11(d) (financial interests) of the Act . The appellant has appealed the decision of the City. Further to Notices of Inquiry sent out by this office, I have before me the representations of two of the affected parties, of the appellant in response to those, and further representations from the affected parties in response to the appellant's submissions. The City was invited to submit representations, but did not submit any. RECORDS: There are five records at issue. Four of the records consist of typewritten agreements on the termination of employment of four of the affected parties, and are signed by a representative of the City and the individual. One of the records is a letter from the City to one of the affected parties setting out the details of a severance package. All of the records contain numbered terms. There are provisions for the continuation of the salary of the individuals, in specified biweekly payments for a specified duration. There are provisions which detail the amount of outstanding vacation entitlements and outstanding sick leave credits. Some of the provisions deal with the continuation of contributions to the Ontario Municipal Employees Retirement Fund (OMERS) for a specified period, and disclose the number of years of credited service in the fund. As well, some provisions deal with the continuation of benefit coverage to the individuals for a specified period. The agreements also cover such matters as payment of legal fees, restrictive covenants, the continued use of City equipment, and releases by the individuals. One of the agreements refers to the future provision of consulting services to the City, by one of the individuals. The record which is in letter form contains the address of the affected person to whom it relates. The dates of the records span the period from April of 1998 to March of 1999. CONCLUSION: I have decided to uphold the City's decision with respect to the information in the records, with one exception. DISCUSSION: INTRODUCTION Before I turn to the legal issues raised by this case, I wish to address a misconception which was contained in one of the representations I received. One of the affected parties strongly objects to the appeal on the basis that this office is "re-opening" a matter which he had understood had been finally decided by the City. It should be noted that section 39 of the Act permits a person who has been denied access to a record by the City to appeal the decision by the City to this office. In this case, the requester has appealed the City's decision to deny access to the severance agreements. It was not the decision of the Information and Privacy Commissioner to initiate this appeal; it was initiated by the requester, as he is entitled to do under the Act . ECONOMIC AND OTHER INTERESTS Sections 11(a), (c) and (d) of the Act state: A head may refuse to disclose a record that contains, (a) trade secrets or financial, commercial, scientific or technical information that belongs to an institution and has monetary value or potential monetary value; .... (c) information whose disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution; (d) information whose disclosure could reasonably be expected to be injurious to the financial interests of an institution; Where the circumstances described in sections 11(a), (c) or (d) are established, they provide a basis for the City to decide to exempt information from disclosure. Section 11(a): Information that belongs to an institution and has monetary value In discussing the meaning of section 11(a), and in particular, the meaning of the phrase "belongs to", Senior Adjudicator David Goodis stated, in Order MO-1282, that: [f]or information to "belong to" an institution, the institution must have some proprietary interest in it either in a traditional intellectual property sense - such as copyright, trade mark, patent or industrial design - or in the sense that the law would recognize a substantial interest in protecting the information from misappropriation by another party. Examples of the latter type of information may include trade secrets, business to business mailing lists (Order P-636), customer or supplier lists, price lists, or other types of confidential business information. In
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Legislation
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MFIPPA
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14(2)
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14(3)
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14(4)
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Section 16
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Subject Index
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Published
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Aug 30, 2000
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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