Access to Information Orders
Decision Information
NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ). The appellant has requested copies of all records relating to himself, including files and correspondence, from the Ontario Human Rights Commission (the OHRC). The appellant had previously filed several complaints with the OHRC. The OHRC identified two investigation files relating to the appellant and denied access to the information in them based on the following exemptions: law enforcement - sections 14(1)(a) and (b), and 14(2)(a) invasion of privacy - section 21(1) advice or recommendations - section 13(1). In appealing the OHRC's decision, the appellant indicated that the OHRC had only identified two investigations, whereas he had made four complaints. He, therefore, raised the adequacy of the search conducted by the OHRC for records responsive to his request. The issues in this appeal are whether the exemptions which have been claimed apply to the records at issue, and whether the OHRC conducted a reasonable search for records. A Notice of Inquiry was provided to the appellant and the OHRC. Because the records appeared to contain the appellant's own personal information, and some records also appeared to contain the personal information of other individuals, the Notice of Inquiry raised the possible application of sections 49(a) and (b) of the Act . Representations were received from both parties. The OHRC's representations include the sworn affidavits of the Acting Freedom of Information and Privacy Co-ordinator (the Co-ordinator) and the Human Rights Officer (the Officer) involved in the investigation of the appellant's complaints. Following the receipt of representations, the OHRC agreed to disclose a number of records to the appellant. Those records are, therefore, not at issue in this appeal. Further, the OHRC did not provide representations regarding the discretionary exemption in section 14(2)(a), and I will not consider this section further in this order. The remaining records consist of letters, memoranda and notes, administrative forms and investigation notes. The records remaining at issue and the exemption(s) claimed for each are more particularly described in Appendix "A" to this order. For ease of reference, Appendix "A" assigns consecutive numbers to the records at issue. The second column of Appendix "A" provides a cross-reference to the page numbers assigned by the OHRC. DISCUSSION: PERSONAL INFORMATION Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual. I have reviewed the records at issue. I find that each of them contains the appellant's personal information, which is linked to the appellant by direct identification, or because the information is directly connected to his complaints. Some of the records also contain the personal information of individuals other than the appellant. Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 49 provides a number of exceptions to this general right of access. DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION Under section 49(a) of the Act , the OHRC has the discretion to deny access to records which contain an individual's own personal information in instances where certain exemptions would otherwise apply to that information. The exemptions listed in section 49(a) include both of the exemptions claimed with respect to the records at issue, namely law enforcement (section 14) and advice or recommendations (section 13). In the discussion which follows, I will consider whether the records qualify for exemption under these sections as a preliminary step in determining whether the exemption in section 49(a) applies. LAW ENFORCEMENT Sections 14(1)(a) and (b) The OHRC has claimed these exemptions for all the records at issue. In order for a record to qualify for exemption under either of these sections, the matter to which the record relates must first satisfy the definition of the term "law enforcement" found in section 2(1) of the Act (Order P-324). It has been previously established that OHRC investigations meet this definition (in Order 89 and many subsequent orders) and I adopt this finding for the purposes of this order. The purpose of sections 14(1)(a) and (b) is to provide the institution with the discretion to preclude access to records in circumstances where disclosure would interfere with an ongoing law enforcement matter or investigation (Order P-403). Previous orders have found that in order to qualify for exemption under these sections, the OHRC must establish "a clear and direct linkage" between the disclosure of the specific information at issue and the harm mentioned in the exemption (Order M-202). I have carefully reviewed the records at issue and have considered the representations of both parties. In its representations, the OHRC indicates that both files are in active case processing at the reconsideration stage. I am satisfied that the following records qualify for exemption under sections 14(1)(a) and (b): 1, 3, 6-13, 16, 18, 20, 22, 24-30, 34, 39, 43-47, 51, 55-58, 60, 62, 64-66 and 68. Accordingly, these records are all exempt from disclosure under section 49(a). With respect to the remaining records, however, I am of the view that the OHRC has failed to meet the standard established in Order M-202. For this reason, none of the remaining records qualifies for exemption under these sections. ADVICE OR RECOMMENDATIONS Section 13(1) of the Act states that: A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution. It has been established in a number of previous orders that advice and recommendations for the purpose of section 13(1) must contain more than mere inf
Decision Content
ORDER P-881
Appeal P‑9400257
Ontario Human Rights Commission
NATURE OF THE APPEAL:
This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act). The appellant has requested copies of all records relating to himself, including files and correspondence, from the Ontario Human Rights Commission (the OHRC). The appellant had previously filed several complaints with the OHRC.
The OHRC identified two investigation files relating to the appellant and denied access to the information in them based on the following exemptions:
• law enforcement - sections 14(1)(a) and (b), and 14(2)(a)
• invasion of privacy - section 21(1)
• advice or recommendations - section 13(1).
In appealing the OHRC's decision, the appellant indicated that the OHRC had only identified two investigations, whereas he had made four complaints. He, therefore, raised the adequacy of the search conducted by the OHRC for records responsive to his request.
The issues in this appeal are whether the exemptions which have been claimed apply to the records at issue, and whether the OHRC conducted a reasonable search for records.
A Notice of Inquiry was provided to the appellant and the OHRC. Because the records appeared to contain the appellant's own personal information, and some records also appeared to contain the personal information of other individuals, the Notice of Inquiry raised the possible application of sections 49(a) and (b) of the Act.
Representations were received from both parties. The OHRC's representations include the sworn affidavits of the Acting Freedom of Information and Privacy Co-ordinator (the Co‑ordinator) and the Human Rights Officer (the Officer) involved in the investigation of the appellant's complaints. Following the receipt of representations, the OHRC agreed to disclose a number of records to the appellant. Those records are, therefore, not at issue in this appeal. Further, the OHRC did not provide representations regarding the discretionary exemption in section 14(2)(a), and I will not consider this section further in this order.
The remaining records consist of letters, memoranda and notes, administrative forms and investigation notes. The records remaining at issue and the exemption(s) claimed for each are more particularly described in Appendix "A" to this order. For ease of reference, Appendix "A" assigns consecutive numbers to the records at issue. The second column of Appendix "A" provides a cross-reference to the page numbers assigned by the OHRC.
DISCUSSION:
PERSONAL INFORMATION
Under section 2(1) of the Act, "personal information" is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual.
I have reviewed the records at issue. I find that each of them contains the appellant's personal information, which is linked to the appellant by direct identification, or because the information is directly connected to his complaints. Some of the records also contain the personal information of individuals other than the appellant.
Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 49 provides a number of exceptions to this general right of access.
DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION
Under section 49(a) of the Act, the OHRC has the discretion to deny access to records which contain an individual's own personal information in instances where certain exemptions would otherwise apply to that information. The exemptions listed in section 49(a) include both of the exemptions claimed with respect to the records at issue, namely law enforcement (section 14) and advice or recommendations (section 13). In the discussion which follows, I will consider whether the records qualify for exemption under these sections as a preliminary step in determining whether the exemption in section 49(a) applies.
LAW ENFORCEMENT
Sections 14(1)(a) and (b)
The OHRC has claimed these exemptions for all the records at issue.
In order for a record to qualify for exemption under either of these sections, the matter to which the record relates must first satisfy the definition of the term "law enforcement" found in section 2(1) of the Act (Order P-324). It has been previously established that OHRC investigations meet this definition (in Order 89 and many subsequent orders) and I adopt this finding for the purposes of this order.
The purpose of sections 14(1)(a) and (b) is to provide the institution with the discretion to preclude access to records in circumstances where disclosure would interfere with an ongoing law enforcement matter or investigation (Order P-403).
Previous orders have found that in order to qualify for exemption under these sections, the OHRC must establish "a clear and direct linkage" between the disclosure of the specific information at issue and the harm mentioned in the exemption (Order M-202).
I have carefully reviewed the records at issue and have considered the representations of both parties. In its representations, the OHRC indicates that both files are in active case processing at the reconsideration stage. I am satisfied that the following records qualify for exemption under sections 14(1)(a) and (b): 1, 3, 6-13, 16, 18, 20, 22, 24-30, 34, 39, 43-47, 51, 55-58, 60, 62, 64-66 and 68. Accordingly, these records are all exempt from disclosure under section 49(a).
With respect to the remaining records, however, I am of the view that the OHRC has failed to meet the standard established in Order M-202. For this reason, none of the remaining records qualifies for exemption under these sections.
ADVICE OR RECOMMENDATIONS
Section 13(1) of the Act states that:
A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.
It has been established in a number of previous orders that advice and recommendations for the purpose of section 13(1) must contain more than mere information. To qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process.
In Order 94, former Commissioner Sidney B. Linden commented on the scope of this exemption. He stated that it "... purports to protect the free flow of advice and recommendations within the deliberative process of government decision-making and policy-making."
The OHRC relies on this exemption with respect to Records 4, 5, 8, 10, 12, 13, 16, 20, 29-33, 35, 42, 46, 47, 53. I have already found that Records 8, 10, 12, 13, 16, 20, 29, 30, 46 and 47 are exempt under section 49(a), in the discussion of "Law Enforcement", above, and accordingly, I will not consider them in this discussion.
I find that Records 42 and 53 qualify for exemption under this section because they set out a suggested course of action with respect to the OHRC's decision-making mandate as established in the Ontario Human Rights Code.
In my view, Records 5, 31 and 35 contain only statistical information, and Records 4, 32 and 33 do not contain advice or recommendations. Accordingly, I find that these records do not qualify for exemption under section 13(1). As no other exemptions apply to these records, they should be disclosed to the appellant.
To summarize, I have found that Records 42 and 53 qualify for exemption under section 13(1), and are therefore exempt under section 49(a) of the Act.
INVASION OF PRIVACY
The OHRC has claimed that the exemption provided by section 21(1) applies to Records 1, 7-10, 12, 18-20, 23, 24, 34, 38, 39 and 66. I have found that all of these records are exempt under section 49(a), with the exception of Records 19, 23 and 38. Accordingly, I will limit my discussion in this part to these three records.
Record 19 is a facsimile cover sheet from the Respondent's counsel and Records 23 and 38 are postal receipts indicating that correspondence was mailed to various individuals, including the Respondent's counsel. In my view, the information in these records relates to the identified individuals in their employment capacity. Previous orders have held that information about an employee does not constitute that individual's personal information where the information relates to the individual's employment responsibilities or position. I find this to be the case in this appeal. As these records do not contain personal information of individuals other than the appellant, sections 21 and 49(b) cannot apply to them. As I have found that no other exemptions apply to these records, they should be disclosed to the appellant.
REASONABLENESS OF SEARCH
As I indicated above, the appellant states that although he brought four different complaints before the OHRC, the records refer to only two complaint files. He indicates that when he made the additional complaints, the Officer made notes. He believes, therefore, that additional files should exist which contain documentation on the investigation of the additional complaints.
The Act does not require the OHRC to prove with absolute certainty that the requested records do not exist. However, in my view, in order to properly discharge its obligations under the Act the OHRC must provide me with sufficient evidence which shows that it has made a reasonable effort to identify and locate records responsive to the request.
The OHRC's representations indicate that information relating to the two additional complaints made by the appellant does exist and has been incorporated into the other two complaint files that had already been opened. In his affidavit, the Officer acknowledges that the additional two complaints were initiated by the appellant. He confirms that the OHRC had opened only two complaint files and that the additional complaints were incorporated into these two files.
The OHRC's representations state further that similar complaints had been received from other individuals at the same time as the appellant's complaint. In his affidavit, the Co-ordinator states that he reviewed the documentation in these other complaint files and confirms that they contain the same type of information that had been placed in the appellant's files.
Finally, the OHRC indicates that a computer search using the appellant's name was conducted. This search produced only the two files which are at issue in this appeal.
I have carefully reviewed the representations of the parties and the affidavits submitted by the OHRC. I am satisfied that although separate complaint files were not opened in response to the appellant's additional complaints, the information pertaining to them exists and is located in the records which the OHRC has already identified as responsive in this appeal. Accordingly, I am satisfied that the OHRC's search for records was reasonable in the circumstances of this appeal.
ORDER:
1. I order the OHRC to disclose the following records to the appellant within fifteen (15) days after the date of this order: Records 2, 4, 5, 14, 15, 17, 19, 21, 23, 31-33, 35-38, 40, 41, 48-50, 52, 54, 59, 61, 63, 67 and 69-71.
2. In all other respects, I uphold the OHRC's decision.
3. In order the verify compliance with Provision 1 of this order, I reserve the right to require the OHRC to provide me with a copy of the records which are disclosed to the appellant pursuant to Provision 1.
Original signed by: February 28, 1995
Laurel Cropley
Inquiry Officer
APPENDIX "A"
INDEX OF RECORDS AT ISSUE
RECORD NUMBER(S) |
PAGE NUMBER(S) |
DESCRIPTION OF RECORDS WITHHELD IN WHOLE OR IN PART |
EXEMPTIONS OR OTHER SECTION(S) CLAIMED |
DECISION ON RECORD |
INVESTIGATION FILE 30-382Q |
||||
1 |
14-16 36 |
Officer's notes |
14(1)(a)(b) 21(3)(b) |
Do not disclose
|
2 |
17 |
Letter to the appellant from his employer - January 14/91 |
14(1)(a)(b) |
Disclose |
3 |
18 60-64 153-158 |
Officer's notes |
14(1)(a)(b) |
Do not disclose |
4 |
21 |
Record of intake |
14(1)(a)(b) 13(1) |
Disclose |
5 |
22 |
Case opening form |
14(1)(a)(b) 13(1) |
Disclose |
6 |
25 |
OHRC Questionnaire Form (2 -questions). This is required to be filled out by the appellant when in receipt of a complaint
|
14(1)(a)(b) |
Do not disclose |
7 |
31-35 |
Five letters to or from Respondent's counsel - February/91 |
14(1)(a)(b) 21(3) |
Do not disclose |
8 |
37 |
Letter from Respondent's counsel - April 22/91 |
14(1)(a)(b) 13(1) 21(3)(b) |
Do not disclose |
9 |
38-40 42-43 |
Respondent's questionnaire - April 25/91 |
14(1)(a)(b) 21(3)(b) |
Do not disclose |
10 |
44-45 |
Letter from Respondent's counsel - April 26/91 |
14(1)(a)(b) 13(1) 21(3)(b) |
Do not disclose |
11 |
47 |
Letter from OHRC to Respondent's counsel - May 1/91 |
14(1)(a)(b) |
Do not disclose |
12 |
48-55 68-76 118-119 (duplicates of 125-126) 136-138 |
Officer's notes |
14(1)(a)(b) 13(1) 21(3)(b) |
Do not disclose |
13 |
57, 142 |
Officer's notes |
14(1)(a)(b) 13(1) |
Do not disclose |
14 |
66-67 |
Letter from OHRC to appellant with attachment - January 7/92 |
14(1)(a)(b) |
Disclose |
15 |
89 |
Facsimile transmittal sheet Dated January 9/92 |
14(1)(a)(b) |
Disclose |
16 |
116 |
Letter from OHRC to Respondent's counsel - February 21/92 |
14(1)(a)(b) 13(1) |
Do not disclose |
17 |
117 |
Facsimile transmittal sheet Dated February 21/92 |
14(1)(a)(b) |
Disclose |
18 |
120-121 (duplicates of 127-128, 130-131 and 270-271) |
Letter from Respondent March 24/92 |
14(1)(a)(b) 21(3)(b) |
Do not disclose |
19 |
122 (duplicate of 129) |
Facsimile cover sheet Dated March 24/92 |
14(1)(a)(b) 21(3)(b) |
Disclose |
20 |
123-124 |
Record of investigation |
14(1)(a)(b) 14(2)(a) 21(3)(b) 13(1) |
Do not disclose |
21 |
143-144 |
Memorandum from Officer to Northern Manager - June 5/92 |
14(1)(a)(b) |
Disclose |
22 |
163 |
Record of investigation |
14(1)(a)(b) 14(2)(a) |
Do not disclose |
23 |
163a |
Postal receipts dated July 22/93 and July 27/93 |
14(1)(a)(b) 21 |
Disclose |
24 |
164 |
Letter from OHRC to Respondent's counsel - July 19/93 |
14(1)(a)(b) 21 |
Disclose |
25 |
166 |
Officer's notes |
14(1)(a)(b) 14(2)(a) |
Do not disclose |
26 |
167 |
Letter from Respondent's counsel - July 27/93 |
14(1)(a)(b) 14(2)(a) |
Do not disclose |
27 |
170 (duplicate of 250) |
Draft decision (no date) |
14(1)(a)(b) 14(2)(a) |
Do not disclose |
28 |
171-172 (duplicate of 251-252) |
Officer's/Supervisor's response to parties submissions (disclosure) (no date) |
14(1)(a)(b) 14(2)(a) |
Do not disclose |
29 |
222 (duplicate of 288) |
Case disposition sheet |
14(1)(a)(b) 13(1) |
Do not disclose |
30 |
223-224 (duplicate of 248-249) |
Case plan |
14(1)(a)(b) 14(2)(a) 13(1) |
Do not disclose |
31 |
225-226 |
226 - Compliance Unit File Tracking Form. Info. regarding complainant 225 - Head Office Information Sheet outlining the names and addresses of complainants and respondents |
14(1)(a)(b) 13(1) |
Disclose |
32 |
227 |
Case co-ordinator's memo - September 1/93 |
14(1)(a)(b) 13(1) |
Disclose |
33 |
229 |
Facsimile transmittal sheet - October 19/93 |
14(1)(a)(b) 13(1) |
Disclose |
34 |
265-276 |
Six letters from Respondent's counsel to OHRC 265 - January 4/93 266 - December 18/92 268 - October 19/92 269 - July 3/92 271 - March 24/92 276 - August 24/93 |
14(1)(a)(b) 21(3)(b) |
Do not disclose |
35 |
294-295 |
294 - OHRC Case Closing Statistical Data Form 295 - OHRC Systems A.D.P./Masterfile Form |
14(1)(a)(b) 13(1) |
Disclose |
36 |
304 |
Facsimile transmittal sheet - February 10/94 |
14(1)(a)(b) |
Disclose |
37 |
306 |
Facsimile transmittal sheet - February 10/94 |
14(1)(a)(b) |
Disclose |
38 |
309a |
Postal receipt - March 22/94 |
14(1)(a)(b) 21 |
Disclose |
39 |
310-311 (duplicate of 312-313) |
Letter from Respondent's counsel - March 18/94 |
14(1)(a)(b) 21 |
Do not disclose |
INVESTIGATION FILE 30-394Q |
||||
40 |
6-7 |
Caseload database |
14(1)(a)(b) |
Disclose |
41 |
8-9 |
Case Closing Statistical Data administrative forms |
14(1)(a)(b) |
Disclose |
42 |
10 |
Case disposition sheet |
14(1)(a)(b) 13(1) |
Do not disclose |
43 |
22-26 |
Letter from Respondent's counsel - August 24/93 |
14(1)(a)(b) |
Do not disclose |
44 |
27-33 |
Five Letters to or from Respondent's counsel 27 - March 24/92 29 - July 3/93 30 - October 19/92 32 - December 18/92 33 - January 4/93 |
14(1)(a)(b) |
Do not disclose |
45 |
45 |
Officer's/Supervisor's Response to Parties' Submissions (Disclosure) Form Officers notes |
14(1)(a)(b) |
Do not disclose |
46 |
46 |
Draft decision (no date) |
14(1)(a)(b) 13(1) |
Do not disclose |
47 |
49-50 |
Case plan |
14(1)(a)(b) 13(1) |
Do not disclose |
48 |
51 |
Postal receipt - July 22/93 |
14(1)(a)(b) |
Disclose |
49 |
52 |
Memorandum |
14(1)(a)(b) |
Disclose |
50 |
53 |
Postal receipt - July 22/93 |
14(1)(a)(b) |
Disclose |
51 |
54-56 127 129-130 137-138 149-151 155-156 158 |
Officer's notes |
14(1)(a)(b) |
Do not disclose |
52 |
57 |
Information sheet |
14(1)(a)(b) |
Disclose |
53 |
58 |
Case disposition sheet |
14(1)(a)(b) 13(1) |
Do not disclose |
54 |
68 |
File tracking sheet |
14(1)(a)(b) |
Disclose |
55 |
69-80 |
Five letters to or from Respondent's counsel |
14(1)(a)(b) |
Do not disclose |
56 |
123 |
Letter from Respondent's counsel - July 27/93 |
14(1)(a)(b) |
Do not disclose |
57 |
124-126 |
Record of investigation |
14(1)(a)(b) 14(2)(a) |
Do not disclose |
58 |
128 |
Letter to OHRC from appellant's employer - March 22/93 |
14(1)(a)(b) |
Do not disclose |
59 |
139 |
Facsimile transmission coverpage February 9/93 |
14(1)(a)(b) |
Disclose |
60 |
144 |
Letter from Respondent's counsel - January 4/93 |
14(1)(a)(b) |
Do not disclose |
61 |
145 |
Facsimile transmission sheets 04/01/93 - April 1/93 |
14(1)(a)(b) |
Disclose |
62 |
146 148 |
Letters between OHRC and Respondent's counsel - January 4/93 and December 18/92 |
14(1)(a)(b) |
Do not disclose |
63 |
147 |
Letter from OHRC to appellant - December 18/92 |
14(1)(a)(b) |
Disclose |
64 |
153-154 157 |
Officer's notes |
14(1)(a)(b) |
Do not disclose |
65 |
159-160 |
Letter from Respondent's counsel - July 3/92 |
14(1)(a)(b) |
Do not disclose |
66 |
161-162 164-165 |
Officer's notes |
14(1)(a)(b) 21(3)(b) |
Do not disclose |
67 |
163 |
Newspaper clipping |
14(1)(a)(b) |
Disclose |
68 |
171 |
Questions to respondents |
14(1)(a)(b) |
Do not disclose |
69 |
172-174 |
172 - Case Opening Statistical Data Form 173 - Systems & A.D.P. Masterfile Form 174 - Systems & A.D.P. Cross Reference Form |
14(1)(a)(b) |
Disclose |
70 |
175 |
Record of intake |
14(1)(a)(b) 14(2)(a) |
Disclose |
71 |
178-188 |
Research paper |
14(1)(a)(b) |
Disclose |