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Document
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M-506
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Institution/HIC
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Thunder Bay Hydro
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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 ). The Thunder Bay Hydro (Hydro) received a request from an employee for all information, legal briefs, notes, letters and paperwork related to an investigation concerning herself and a named former Hydro employee (the respondent). The requester also sought communications between Hydro and a named lawyer who investigated the matter (the lawyer) as well as all statements made by persons interviewed by the lawyer. Finally, the requester wanted access to her personal file. Hydro issued a decision letter in which it indicated that the requester could make arrangements with Hydro to view her personnel file and to make an appointment with the Freedom of Information and Privacy Co-ordinator to view Hydro Commission meeting minutes. The decision letter denied access to all other material relating to Hydro's solicitors, or to the investigation by the lawyer, pursuant to section 12 of the Act (solicitor-client privilege). The decision letter also stated that the investigation included information about other employees and a former employee, which "would violate other provisions of the act". The requester appealed the denial of access. During mediation, Hydro agreed to provide the appellant with copies of her personnel file and responsive Hydro Commission meeting minutes. Hydro also identified further records in its possession which it felt were responsive to the request. Hydro then appeared to change its position concerning those records pertaining to the lawyer's investigation. It now claims that it does not have custody or control of these records pursuant to section 4(1) of the Act . The appellant then agreed to narrow the scope of the appeal to (1) information which would explain why the results of the investigation had concluded that she was partly at fault, and (2) records containing comments made about her by the persons interviewed during the investigation. The appellant has confirmed that she does not want to know the names of the other individuals. An interim Notice of Inquiry, limited to the issue of whether Hydro has custody or control over the investigation records was provided to the lawyer, Hydro, the appellant and the respondent to the complaint. The parties were advised that an interim order would be issued to decide the issue of custody or control, following which, the appeal would proceed to inquiry if one or more of the records were found to be within Hydro's custody or control. In this scenario, a final order would then be issued. Representations were received from all of the parties. Subsequent to the issuance of the interim Notice of Inquiry, Hydro provided a revised decision letter, in which it formally claimed that it did not have custody or control of the investigation records which contained comments made about the appellant. Hydro also identified six records as being responsive to the narrowed request and disclosed portions of these documents. The appellant, after reviewing the revised decision letter and the additional disclosures, indicated that she would not continue to seek access to those parts of the six records which had been withheld in the revised decision letter. For this reason, the only records remaining at issue in this appeal are the lawyer's investigation records. DISCUSSION: CUSTODY OR CONTROL OF RESPONSIVE RECORDS The sole issue to be determined at this time is whether or not records responsive to the request in the possession of the lawyer, are in the custody or control of Hydro pursuant to section 4(1) of the Act . Section 4(1) of the Act states: Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or part falls within one of the exemptions under sections 6 to 15. Both Hydro and the lawyer submit that the investigation records in the possession of the lawyer are not in the custody or under the control of Hydro within the meaning of section 4(1) of the Act and that, as a result, they are not subject to an access request under the Act . It may be helpful at this point, to provide some background information about the investigation which resulted in the creation of the records at issue. Hydro launched the investigation because of the appellant's complaint against the respondent. At the time, both individuals were employees of Hydro. Hydro, through its solicitors, and with the agreement of the appellant and the respondent, retained the lawyer to investigate. Hydro advises that it paid for the investigation and may have provided some input into the persons to be interviewed and the questions which might be asked during interviews of Hydro employees. After interviewing a number of Hydro employees, the lawyer orally presented his recommendations to one of Hydro's solicitors and a senior level Hydro employee. These individuals then communicated them verbally, along with the Hydro solicitor's recommendations, to a meeting of the Hydro Commission. Hydro was not provided with any written records of the investigation or the lawyer's findings. The investigation records are in the possession of the lawyer. After the completion of the investigation, both the appellant and the respondent were disciplined. It is clear from the wording of section 4(1) that, in order to be subject to an access request under the Act , a record need only be under the custody or the control of an institution. In the circumstances of this appeal, I find that Hydro does not have actual custody of the records held by the lawyer. Therefore, the relevant question is whether any responsive records in the custody of the lawyer are under the control of Hydro. In Order 120, former Commissioner Sidney B. Linden made the following comments regarding section 10(1) of the provincial Freedom of Information and Protection of Privacy Act , which is the equivalent of section 4(1) of the Act : In my view, it is not possible to establish a precise definition of the words "custody" or "control" as they are used in the Act , and then simply apply those definitions in each case. Rather, it is necessary to consider all aspects of the creation, maintenance and use of particular records, and to decide whether "custody" or "control" has been established in the circumstances of a particular fact situation.
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Legislation
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Subject Index
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Published
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Apr 12, 1995
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Type
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Order – Final
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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