Access to Information Orders

BACKGROUND: On August 6, 1997, I issued Order P-1438 which addressed the decision by theMinistry of the Solicitor General and Correctional Services (the Ministry) underthe Freedom of Information and Protection of Privacy Act (the Act )to deny access to records requested by the appellant, claiming that they fellwithin the parameters of section 65(6) of the Act , and therefore,outside the scope of the Act . The requested records consist ofoccurrence reports, misconduct reports, duty rolls, memos, correspondence, logbooks, statements, interview notes, investigation reports and policy documentsfrom the Ministry and the Toronto Jail. In Order P-1438, I found that all three requirements of section 65(6)1 hadbeen met and the records were, therefore, excluded from the scope of the Act . During the course of the appeal, the appellant's counsel raised thefollowing constitutional question: ... that section 65(6) of the Freedom of Information and Protection ofPrivacy Act , R.S.O. 1990, c.F.31, as amended (the "Act"), asapplied to the request for information by the Appellant, denies the Applicantequality before the law, contrary to section 15 of the Canadian Charter ofRights and Freedoms (the "Charter"). By limiting the Appellant'saccess to the documents in the possession and custody of the employer which arethe only means of proof of violation of section 15 of the Charter by theemployer, section 65(6) of the Act as applied to the Appellant reinforces thedenial of equality which the appellant has suffered at the hands of theemployer. The appellant's counsel provided extensive representations on this issue. The Ministry argued that I did not have the jurisdiction to deal with a Charterissue relating to the Act on the basis of recent case law ( Bell v. Canadian Human Rights Commission [1996] 3 S.C.R. 854). I concluded that it was not necessary for me to consider the Ministry'sarguments because, in my view, the appellant had not made out his Charter casein any event. THE RECONSIDERATION REQUEST: The appellant (on his own behalf) has requested that I reconsider mydecision in Order P-1438 on the grounds that there is a fundamental defect inthe adjudication process or some other jurisdictional defect in the order. In this regard, the appellant submits that I improperly declinedjurisdiction under the Act to rule on the Ministry's arguments on theCommission's jurisdiction to decide Charter questions, and the appellant's replyto these arguments. The appellant also submits that I improperly exercised my discretion not tofully consider and rule on the appellant's Charter arguments. The appellantdoes not expand on this submission, but rather reiterates and adds new argumentto the submissions originally presented in respect of his section 15 Charterclaim. DECISION: The IPC's Reconsideration Policy Statement describes the threshold forproceeding with a reconsideration, as follows: When an application for reconsideration of an order is received, the ordershould be reconsidered only where: 1.there is a fundamental defect in the adjudication process (for example,lack of procedural fairness) or some other jurisdictional defect in the order;or 2.there is a typographical or other clerical error in the order which hasa bearing on the decision or where the order does not express the manifestintention of the decision maker. An order should not be reconsidered simply on the basis that newevidence is provided, whether or not that evidence was obtainable at the time ofthe inquiry. With respect to the appellant's second argument, that I improperly exercisedmy discretion not to fully consider the appellant's section 15(1) claim, I havetaken into account the scope of the reconsideration policy and the appellant'ssubmissions. In my view, the appellant has provided no evidence that I havefailed to consider or have misconstrued the evidence submitted by his counsel inthe first instance. I conclude that the ground which the appellant is advancingto support his reconsideration request in this regard is the provision of newevidence. In my view, this does not fall within the parameters of thereconsideration policy. In general, I feel it is important to protect the integrity of the Office ofthe Information and Privacy Commissioner's processes, and to ensure that theparties to an appeal are able, in most cases, to safely rely on an order tofinally settle the issues in dispute. It is for that reason that the policy onreconsideration does not permit an order to be reconsidered onthe basis that new evidence (or submissions) is provided, whether or not thatevidence (or submissions) was obtainable at the time of the inquiry. I note that the appellant has had ample opportunity during the inquiry tomake representations on this matter. In the circumstances of this appeal, theparties were provided with the very unusual opportunity to exchange theirrepresentations on the Charter issues raised by each of them. I fullyconsidered all of the representations submitted on this issue in arriving at myconclusions. Therefore, based on the foregoing, the appellant's request forreconsideration on this ground is denied. With respect to the appellant's first argument, that I improperly declinedjurisdiction to rule on the Ministry's arguments regarding my jurisdiction todecide Charter questions, I am not persuaded by the appellant that in decidingthat it was not necessary to determine this issue, I declined jurisdiction torule on this matter. The reason given in Order P-1438 was that the appellant's Charter argumenthad no merit and therefore, there was no Charter "issue" to decide. Accordingly, it was not necessary to address the Ministry's arguments. Consequently, I find that there was no jurisdictional defect in Order P-1438and the appellant's request for reconsideration is denied. Original signed by: Laurel Cropley, Inquiry Officer August 19, 1997