Access to Information Orders
Decision Information
BACKGROUND: The Metropolitan Licensing Commission (the Commission) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for all records pertaining to a work-related incident involving the requester, which purportedly occurred on May 20, 1992. The requester was an employee of the Commission. The Commission identified a number of responsive records, provided access to some and denied access to others. The requester appealed the decision to the Commissioner's office. During the mediation stage of the appeal, the Commission disclosed to the appellant several additional records and further indicated that it was relying upon section 14(1) of the Act to deny access to the remaining five records. Further mediation was not successful, and notice that an inquiry was being conducted to review the Commission's decision was sent to the Commission and the appellant. Both parties submitted representations. In its representations, the Commission indicated that it would release one of the remaining documents, being a handwritten memorandum dated May 21, 1992. The Commission also indicated that it would also be relying on sections 12 and 38(a) of the Act with respect to the remaining records. While the representations were being considered, Commissioner Tom Wright issued Order M-170, adopting the Ontario Court (General Division) (Divisional Court) June 30, 1993 decision in the case of John Doe et al. v. Information and Privacy Commissioner et al . This decision interpreted several provisions of the Act in a way which differed from the interpretation developed in orders of the Commissioner. Since similar statutory provisions were also at issue in the present appeal, it was determined that copies of Order M-170 should be provided to the parties. The appellant and the Commission were provided with the opportunity to change or to supplement the representations previously submitted. Further representations were received from the Commission. The records at issue in this appeal are described as follows: A one page witness statement dated May 21, 1992. A one page memorandum dated May 21, 1992. Five pages of handwritten notes taken at an interview of one of the affected persons. A further two pages of notes taken at an interview of another of the affected persons. ISSUES: The issues in this appeal are: A. Whether the discretionary exemptions described in sections 12 and 38(a) of the Act apply to the records at issue. B. Whether the records contain "personal information" as defined in section 2(1) of the Act . C. If the answer to Issue B is yes, and the personal information relates to the appellant and other individuals, whether the discretionary exemption contained in section 38(b) of the Act applies. D. If the answer to Issue B is yes, and the personal information relates to the appellant only, whether the mandatory exemption in section 14(1) of the Act applies. ISSUE A: Whether the discretionary exemptions described in sections 12 and 38(a) of the Act apply to the records at issue. In its representations, the Commission claims that section 12 of the Act applies to each of the four records at issue. Section 12 of the Act states that: A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation. This section consists of two branches, which provides an institution with the discretion to refuse to disclose: a record that is subject to the common law solicitor-client privilege (Branch 1); and a record which was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation (Branch 2). In order for a record to be subject to the common law solicitor-client privilege (Branch 1), the institution must provide evidence that the record satisfies either of the following tests: 1. (a) there is a written or oral communication, and (b) the communication must be of a confidential nature, and (c) the communication must be between a client (or his agent) and a legal advisor, and (d) the communication must be directly related to seeking, formulating or giving legal advice; OR 2. the record was created or obtained especially for the lawyer's brief for existing or contemplated litigation. [Orders 49, M-2 and M-19] A record can be exempt under Branch 2 of section 12 regardless of whether the common law criteria relating to Branch 1 are satisfied. Two criteria must be satisfied in order for a record to qualify for exemption under Branch 2: the record must have been prepared by or for counsel employed or retained by an institution; and the record must have been prepared for use in giving legal advice, or in contemplation of litigation, or for use in litigation. [Orders 210, M-2 and M-19] The Commission claims that the records qualify for exemption under both the second branch and the second part of the first branch of the exemption. Its arguments under each branch are essentially the same as it submits that the records were prepared for Commission counsel in contemplation of litigation. The question of what constitutes "in contemplation of litigation" was considered in Order 52, by former Commissioner Sidney B. Linden in the context of section 19 of the provincial Freedom of Information and Protection of Privacy Act , which is similar to section 12 of the Act . In Order 52, he applied the following two requirements for a record to qualify as being prepared "in cont
Decision Content
ORDER
BACKGROUND:
The Metropolitan Licensing Commission (the Commission) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for all records pertaining to a work-related incident involving the requester, which purportedly occurred on May 20, 1992. The requester was an employee of the Commission. The Commission identified a number of responsive records, provided access to some and denied access to others. The requester appealed the decision to the Commissioner's office.
During the mediation stage of the appeal, the Commission disclosed to the appellant several additional records and further indicated that it was relying upon section 14(1) of the Act to deny access to the remaining five records. Further mediation was not successful, and notice that an inquiry was being conducted to review the Commission's decision was sent to the Commission and the appellant. Both parties submitted representations. In its representations, the Commission indicated that it would release one of the remaining documents, being a handwritten memorandum dated May 21, 1992. The Commission also indicated that it would also be relying on sections 12 and 38(a) of the Act with respect to the remaining records.
While the representations were being considered, Commissioner Tom Wright issued Order M-170, adopting the Ontario Court (General Division) (Divisional Court) June 30, 1993 decision in the case of John Doe et al. v. Information and Privacy Commissioner et al. This decision interpreted several provisions of the Act in a way which differed from the interpretation developed in orders of the Commissioner. Since similar statutory provisions were also at issue in the present appeal, it was determined that copies of Order M-170 should be provided to the parties. The appellant and the Commission were provided with the opportunity to change or to supplement the representations previously submitted. Further representations were received from the Commission.
The records at issue in this appeal are described as follows:
1. A one page witness statement dated May 21, 1992.
2. A one page memorandum dated May 21, 1992.
3. Five pages of handwritten notes taken at an interview of one of the affected persons.
4. A further two pages of notes taken at an interview of another of the affected persons.
ISSUES:
The issues in this appeal are:
A. Whether the discretionary exemptions described in sections 12 and 38(a) of the Act apply to the records at issue.
B. Whether the records contain "personal information" as defined in section 2(1) of the Act.
C. If the answer to Issue B is yes, and the personal information relates to the appellant and other individuals, whether the discretionary exemption contained in section 38(b) of the Act applies.
D. If the answer to Issue B is yes, and the personal information relates to the appellant only, whether the mandatory exemption in section 14(1) of the Act applies.