ORDER P-1568

 

Appeal P-9800031

 

Ministry of Health

NATURE OF THE APPEAL:

 

The Ministry of Health (the Ministry) provides funding for a number of development projects across Ontario which are operated on behalf of individuals who have received treatment for mental health problems.  One such project was operated by an organization known as the Mental Health Consumer/Survivor Employment Association of Essex County (the Association).  The Ministry provided funding for the operation of a project through which the Association operated a restaurant in the City of Windsor. 

 

The Ministry received a request under the Freedom of Information and Protection of Privacy Act (the Act).  The request was for access to:

 

1.         Records relating to an audit of the Association conducted in August 1996.

 

2.         Records related to any communications between the Ministry and the District Health Council of Windsor-Essex County (the Health Council) relating to the Association from January 1995 to the date of the request.

 

3.         Records related to any communications between the Ministry and/or the Health Council and the Consumer/Survivor Alliance of Windsor with respect to any issue relating to the Association from January 1995 to the date of the request.

 

4.         Any contact sheets maintained by the Ministry on the Association from January 1995 to the date of the request.

 

5.         Any records relating to any personal references to the requester or a numbered Ontario corporation held by the Ministry.

 

The Ministry located a number of records and granted access to some of them, in whole or in part.  Access to the remaining records, or parts of records, was denied pursuant to the following exemptions contained in the Act:

 

∙           section 13(1) - advice or recommendations

∙           sections 18(1)(c), (d) and (e)  - economic and other interests

∙           section 18(1)(g) - proposed policies, plans or projects of an institution

∙           section 19 - solicitor-client privilege

∙           section 20 - danger to safety or health

∙           section 21(1) - invasion of privacy

 

The requester, now the appellant, appealed the Ministry’s decision.  A Notice of Inquiry was provided to the appellant and the Ministry soliciting their submissions on the application of the exemptions claimed to the records.  Because it appeared that the records may contain the personal information of the appellant and/or other identifiable individuals, the parties were asked to address the possible application of sections 49(a) and (b) of the Act.

 

Representations were received from both parties.  Attached as Appendix “A” to this order is an index of the records remaining at issue and the disposition of each in the order.

 

DISCUSSION:

 

PERSONAL INFORMATION

 

Under section 2(1) of the Act, “personal information” is defined to mean, in part, recorded information about an identifiable individual.  I have reviewed the records remaining at issue and make the following findings with respect to whether they contain personal information as defined by section 2(1) and if so, to whom it relates.  I find that:

 

∙                       Page 3 of Record A-5 and Page 1 of Record A-18 contain the personal information of two Ministry employees;

 

∙                       Records A-19, C-18, C-28 and C-30 contain only the personal information of several consumer/survivors employed by the project which was the subject of the audit and review and members of its advisory board;

 

∙                       Records A-20, A-23, B-18 to B-22, C-7, C-9 to C-13 and C-15 to C-17 contain the personal information of the appellant and other identifiable individuals;

 

∙                       Records B-2, B-26 and C-14 contain the personal information of the appellant only;

 

∙                       the remaining records do not contain personal information within the meaning of section 2(1) of the Act.

 

DISCRETION TO REFUSE APPELLANT’S OWN INFORMATION

 

Under section 49(a) of the Act, the Ministry has the discretion to deny access to an individual’s own personal information in instances where certain exemptions would otherwise apply to that information.  Section 49(a) states:

 

A head may refuse to disclose to the individual to whom the information relates personal information,

 

where section 12, 13, 14, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information.  [emphasis added]

 

The Ministry has exercised its discretion to refuse access to the records at issue which contain the appellant’s personal information under sections 13(1), 18(1)(c), (d), (e) and (g), 19 and 20.  In order to determine whether the exemption provided by section 49(a) applies to the information in these records, I will first consider whether the exemptions in sections 13(1), 18(1)(c), (d), (e) and (g), 19 and 20 apply.

 

SOLICITOR-CLIENT PRIVILEGE

 

The Ministry submits that all of the responsive records designated with an “A” or “B” prefix, with the exception of Record A-19, are exempt from disclosure, in whole or in part, under section 19 of the Act.  This section consists of two branches, which provide a head with the discretion to refuse to disclose:

 

1.         a record that is subject to the common law solicitor-client privilege; (Branch 1) and

 

2.         a record which was prepared by or for Crown counsel 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 Ministry 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.

 

[Order 49]

 

Two criteria must be satisfied in order for a record to qualify for exemption under Branch 2:

 

1.         the record must have been prepared by or for Crown counsel; and

 

2.         the record must have been prepared for use in giving legal advice, or in contemplation of litigation, or for use in litigation.

 

[Order 210]

 

The Ministry submits that all of the records designated with the prefix “B” were located in the files of one of its counsel and that virtually all of them consist of communications between counsel and an employee of the Ministry’s Mental Health Programs and Services Group.  In addition, it argues that many of the responsive records were reviewed by legal counsel, were sent to counsel seeking advice, or contain counsel’s advice and changes.  Accordingly, it indicates that those documents which contain legal advice are communications of a confidential nature and are directly related to the seeking and giving of legal advice, thereby qualifying for exemption under Branch 1 of section 19. 

 

The Ministry further submits that records which were prepared by or for Crown counsel and prepared either to provide or obtain legal advice from the program areas qualify for exemption under Branch 2 of section 19.  No submissions were received from the Ministry with respect to the application of the section 19 exemption to the individual records at issue, however.

 

The appellant does not address the application of section 19 to the records.

 

Based on my review of the records and the submissions of the Ministry, I make the following findings with respect to the application of section 19 to the subject records:

 

1.         Page 1 of Record A-3, Record A-4, Pages 1, 2 and 3 of Record A-5, Records A-6, A-7, A-8, A-9, A-10, the severed information on Page 3 of Records A-11, A-12, A-13, A-14, A-15, A-16, A-17, the severed information on Page 3 of Record A-18, Records B-1, B-1(a), B-2, B-5 to B-15, B-17, B-18, B-19, B-20, B-21, B-22, B-24, B-25 and B-28 are confidential communications between Ministry counsel and various Ministry officials which are directly related to the giving, seeking or formulating of legal advice.  These records fall within the ambit of Branch 1 of the section 19 exemption.

 

 2.        Records B-3 and B-23 are notes and a memorandum prepared by Ministry counsel for her own use in giving legal advice to her clients.  As such, I find that this information qualifies for exemption under Branch 2 of section 19.

 

3.         I have not been provided with any information as to whether the author or the recipient of Page 2 of Record A-3 (the Plan of Action), the Review Highlights contained in Records A-5 and A-23, the Options outlined in Records A-11, Page 3 of Records A-16 and A-17, Page 4 of Record A-18, the Communications and Action Plans in Record A-21 and the memoranda in Records A-22 and B-27 are Crown counsel.  Accordingly, based solely on my review of their contents, it is not apparent that these records represent confidential communications between a solicitor and client or a record prepared by or for Crown counsel for use in litigation or in giving legal advice.  Therefore, I find that these documents do not qualify for exemption under either Branch 1 or 2 of section 19.

 

In addition, on their face, Records A-20 and B-16 were not prepared by or for Crown counsel.  Nor do they appear to have been prepared for use in giving legal advice or for litigation purposes.  As such, these documents also do not qualify for exemption under either branch of section 19. 

 

By way of summary, I find that Page 1 of Record A-3, Record A-4, Pages 1, 2 and 3 of Record A-5, Records A-6, A-7, A-8, A-9, A-10, the severed information on Page 3 of Records A-11, A-12, A-13, A-14, A-15, A-16, A-17, the severed information on Page 3 of Record A-18, Records B-1, B-1(a), B-2, B-3, B-5 to B-15, B-17, B-18, B-19, B-20, B-21, B-22, B-23, B-24, B-25 and B-28 qualify for exemption under section 19.  Because Records B-2, B-18, B-19, B-20, B-21 and B-22 contain the personal information of the appellant, they are exempt under section 49(a).

 

ADVICE OR RECOMMENDATIONS

 

To qualify as “advice” or “recommendations” under section 13(1) of the Act, 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 [Order 118].

The Ministry has claimed the application of the section 13(1) exemption to Records A-3, A-20, A-21, A-22, A-23, B-16, C-1 and C-38 in their entirety, as well as portions of Records A-5, A-7, A-8, A-10, A-11, A-14, A-15, A-16, A-17, A-18, B-1, B-18, B-19, B-20, B-21, B-22, B-23 and B-28.

 

Specifically, the Ministry submits that it has relied on the section 13(1) exemption to sever the advice of legal counsel and public servants from the majority of these records.  In addition, it argues that it is relying on section 13(1) to sever the information in Records A-11, A-14, A-15, A-16, A-17 and A-18 which reflects certain recommendations made to the Ministry with respect to the Association’s project, which was the subject of the audit and review.  As well, the Ministry indicates that it applied the section 13(1) exemption to Records C-1 and C-38 as these documents contain the recommendations of the Ministry’s Audit Branch with respect to the project.

 

The appellant has not made any submissions on the possible application of section 13(1) to the subject records.

 

Following my review of the records to which the Ministry has applied section 13(1), I make the following findings with respect to the application of the exemption to these records:

 

1.         Page 2 of Record A-3, the recommendation section of Page 2 of the Review Highlights, the recommendations on Page 3 and the options section of Records A-11, the recommendations on Page 3 of Records A-14 and A-15, the fourth bullet point on Page 3, the severed information on Page 4 and the options section of Records A-16 and A-17, the fourth bullet point on Page 4 and the severed information on Page 5 of Record A-18, the summary of conclusions on Pages 2 and 3, the recommendations on Page 25 and the Addendum to Record A-20, Record A-21, the recommendation on Page 2 of Record A-23, the e-mail dated November 6, 1996 in Record B-16, Record C-1 and the recommendation section of Record C-38 qualify for exemption under section 13(1).  Each of these records, or parts of records, contain advice or recommendations relating to a suggested course of action which will ultimately be acted upon as part of the deliberative process. 

 

Because Records A-20 and A-23 contain the personal information of the appellant, they are exempt under section 49(a).

 

2.         I find that the remaining portions of Records A-5, A-16, A-17, A-18, A-20, A-23, B-16 and C-38, as well as Record A-22 in its entirety, do not contain advice or recommendations within the meaning of the section 13(1) exemption.  Rather, the information is factual in nature.  Accordingly, I find that this information is not exempt under this section.

 

3.         None of the mandatory exceptions contained in section 13(2) apply to the information which I have found to fall within the ambit of section 13(1). 

 

In conclusion, I find that Page 2 of Record A-3, the recommendation section of Page 2 of the Review Highlights, the recommendations on Page 3 and the options section of Records A-11, the recommendations on Page 3 of Records A-14 and A-15, the fourth bullet point on Page 3, the severed information on Page 4 and the options section of Records A-16 and A-17, the fourth bullet point on Page 4 and the severed information on Page 5 of Record A-18, the summary of conclusions on Pages 2 and 3, the recommendations on Page 25 and the Addendum to Record A-20, Record A-21, the recommendation on Page 2 of Record A-23, the e-mail dated November 6, 1996 in Record B-16, Record C-1 and the recommendation section of Record C-38 are all exempt under sections 13(1) and 49(a).

 

INVASION OF PRIVACY

 

As previously noted, 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.

 

Under section 49(b) of the Act, where a record contains the personal information of both the appellant and other individuals and the Ministry determines that the disclosure of the information would constitute an unjustified invasion of another individual’s personal privacy, the Ministry has the discretion to deny the requester access to that information.

 

In addition, where a record does not contain the appellant’s personal information but does contain personal information of another individual or individuals, section 21(1) of the Act prohibits disclosure of this information unless one of the exceptions listed in that section is applicable.  In this appeal, the only exception which could apply is section 21(1)(f), which permits disclosure if it “... does not constitute an unjustified invasion of personal privacy”.

 

I have found above in my discussion of the solicitor-client exemption that the first three pages of Record A-5, including the personal information contained therein, are exempt under section 19.  In addition, the personal information of the appellant in Record B-2 is exempt under section 49(a) and Records B-18 to B-22 are exempt under section 19.  As I have found these records to be exempt above, I need not address the possible application of sections 21(1) and 49(b) to these records.

 

In my discussion of “personal information” above, I found that Records A-20, A-23, B-26, C-7, and C-9 to C-17 contain the personal information of the appellant.  I will, therefore, address the application of section 49(b) to these documents.  Records A-18, A-19, C-18, C-28 and C-30 contain the personal information of other identifiable individuals only.  I will determine whether these records are exempt under section 21(1).

 

In considering the possible application of sections 49(b) and 21(1), sections 21(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of personal information would constitute an unjustified invasion of personal privacy.  Disclosing the types of personal information listed in section 21(3) is presumed to be an unjustified invasion of personal privacy.  If one of the presumptions applies, the ruling of the Divisional Court in John Doe v. Ontario (Information and Privacy Commissioner) (1993) 13 O.R. 767 makes it clear that an institution can disclose the personal information only if it falls under section 21(4) or if the “public interest override” in section 23 applies to it.

 

If none of the presumptions contained in section 21(3) apply, the Ministry must consider the application of the factors listed in section 21(2) of the Act, as well as all other considerations that are relevant in the circumstances of the case.

 

The Ministry submits that disclosure of the information it has exempted under section 21(1) or 49(b) would constitute a presumed unjustified invasion of personal privacy under section 21(3)(b).

 

The appellant has not made any submissions with respect to the application of the invasion of privacy exemptions to the records.

 

Records which contain the personal information of the appellant

 

Records A-20, A-23, B-26, C-7, and C-9 to C-17 contain the personal information of the appellant.  The Ministry submits that Records C-7, C-11 and C-16 contain personal information which relates to the psychiatric or psychological histories of several of the consumer/survivors who were engaged in the Association’s project, which was the subject of the audit and review.  As such, the Ministry is of the view that this information falls within the presumption in section 21(3)(a).  It also argues that certain information contained in Records C-9, C-10, C-11, C-15, C-16 and C-17 falls within the ambit of the presumption contained in section 21(3)(d) as it relates to the employment history of certain identifiable individuals.  Finally, it submits that the presumption in section 21(3)(f) relating to information which describes an individual’s personal finances and financial activities applies to the information contained in Records C-9, C-10 and C-17.

 

The Ministry also makes reference to a number of factors in section 21(2).  It argues that these are considerations weighing against the disclosure of the personal information contained in these records.  It submits that the disclosure of the information contained in the records which relates to the consumer/survivors would unfairly expose these individuals to pecuniary or other harm (section 21(2)(e)), that the personal information is highly sensitive (section 21(2)(f)), that the information was supplied in confidence to the Ministry (section 21(2)(h)), and that no factors weighing in favour of disclosure are present in the circumstances of this appeal.

 

I find that the information pertaining to the consumer/survivors participating in the project which is contained in Records C-7, C-9, C-10, C-11, C-12, C-13, C-15 and C-16 falls within the presumption in section 21(3)(a).  This information describes each of these individuals as a consumer/survivor of the mental health system and, in my view, relates to their psychiatric or psychological history.

 

In addition, I find that Records C-7, C-9, C-10, C-11, C-12, C-13, C-15, C-16 and C-17 contain information about the employment histories of the individuals referred to therein.  Accordingly, the disclosure of this information is presumed to constitute an unjustified invasion of their personal privacy.

 

The appellant has not argued that section 23 of the Act applies to this information and I find that the considerations listed in section 21(4) are not applicable.  Accordingly, I find that the disclosure of the personal information in Records C-7, C-9, C-10, C-11, C-12, C-13, C-15, C-16 and C-17 would constitute an unjustified invasion of the personal privacy of the individuals named therein.  These records are, therefore, exempt from disclosure under section 49(b).

 

I find that the presumptions in sections 21(3)(a), (d) and (f) do not apply to the information contained in Records A-20 and A-23.  Neither to do I consider any of the factors weighing in favour of the protection of the personal information of individuals other than the appellant which may be included in these records to be of any real significance.  The information in these documents is known to the appellant and in some cases was supplied to the Ministry by him.  For these reasons, I find that the disclosure of the personal information in Records A-20 and A-23 would not result in an unjustified invasion of personal privacy.

 

Records B-26 and C-14 contain only the personal information of the appellant and their disclosure would not, accordingly, constitute an unjustified invasion of personal privacy.  As no other exemptions have been claimed to apply to Record C-14, and no mandatory exemptions apply, it should be disclosed.

 

Records which do not contain the personal information of the appellant

 

Records A-18, A-19, C-18, C-28 and C-30 contain only the personal information of individuals other than the appellant.  The Ministry submits that the severed information in Records A-18, C-28 and C-30 is highly sensitive within the meaning of section 21(2)(f) and that the information in Records A-19 and C-18 was supplied to it in confidence (section 21(2)(h)) as well as being highly sensitive. 

 

In my view, the personal information contained in Records A-18, C-28 and C-30 is highly sensitive as contemplated by section 21(2)(f).  In addition, I find that Records A-19 and C-18 were supplied to the Ministry in confidence.

 

As noted above, the appellant has not made reference to any of the considerations listed in section 21(2) which may favour the disclosure of personal information.  In the absence of any factors favouring disclosure, I find that the personal information contained in Records A-18, A-19, C-18, C-28 and C-30 is exempt under section 21(1).

 

ECONOMIC AND OTHER INTERESTS/PROPOSED PLANS, PROJECTS OR POLICIES OF AN INSTITUTION

 

The Ministry has applied the exemptions contained in sections 18(1)(c), (d), (e) and (g) to those portions of Records A-18, A-20, A-23, B-16, B-26 and C-38 which I have not found to be exempt under sections 13(1), 19, 21(1) or 49(b).  These sections state that:

 

A head may refuse to disclose a record that contains,

 

(c)        information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution;

 

(d)       information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario;

 

(e)        positions, plans, procedures, criteria or instructions to be applied to any negotiations carried on or to be carried on by or on behalf of an institution or the Government of Ontario;

 

(g)        information including the proposed plans, policies or projects of an institution where the disclosure could reasonably be expected to result in premature disclosure of a pending policy decision or undue financial benefit or loss to a person;

 

The Ministry submits that the disclosure of the information relating to its funding of the project which is contained in Records A-18, A-20, A-23, B-16, B-26 and C-38 could reasonably be expected to prejudice the economic interests of the Government of Ontario and that the information which they contain could be applied in any future negotiations with respect to the continued funding of the project.  Finally, the Ministry submits that an undue financial loss or benefit to a person could reasonably be expected to occur should this information be disclosed.

 

Because of the confidential nature of the submissions made by the Ministry with respect to these exemptions, I am unable to describe them in any greater detail. 

 

I have reviewed these records in detail and make the following findings:

 

1.         The disclosure of the severed information contained in paragraph 8 on Page 3 of Record A-18, paragraph 4 of Page 1 of Record B-16 and all of Records B-26 and C-38 could reasonably be expected to result in injury to the financial interests of the Government of Ontario.  I am satisfied that the information contained in these records satisfies all of the criteria for the section 18(1)(d) exemption.

 

2.         The remaining portions of Records A-20 (the Metcalfe and Ward Report) and A-23 (the Review Highlights) which are not exempt under section 13(1) do not contain information which, if disclosed, could reasonably be expected to prejudice the economic interests or competitive position of the Ministry under section 18(1)(c).  The information contained in these portions of Records A-20 and A-23 is mainly factual in nature and simply reports on the findings of the reviewers with respect to the present accounting and financial practices used by the project.  While the reviewers comment on the appropriateness of each aspect of the project which they were asked to address, I find that the disclosure of these comments to the appellant could not reasonably be expected to prejudice the interests of the Ministry.  As noted above in my discussion under the invasion of privacy exemptions, the accounting and financial procedures of the project are well-known to the appellant.

 

3.         Similarly, I also find that the disclosure of the remaining parts of Records A-20 and A-23 could not reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the government to manage the Ontario economy as contemplated by section 18(1)(d).

 

4.         Those portions of Records A-20 and A-23 which are not exempt under section 13(1) do not contain positions, plans, procedures, criteria or instructions to be applied to any negotiations carried on by the Ministry or the Government of Ontario within the meaning of section 18(1)(e).

 

5.         I further find that the disclosure of this information could not reasonably be expected to result in the premature disclosure of a pending policy decision or an unfair loss or gain to any person under section 18(1)(g). 

 

By way of summary, I find that the severed information contained in paragraph 8 on Page 3 of Record A-18, paragraph 4 of Page 1 of Record B-16 and all of Records B-26 and C-38 is exempt from disclosure under section 18(1)(d).  The remaining information in Records A-20 and A-23 is not exempt under any of the section 18(1) exemptions claimed.

 

Because of the manner in which I have addressed the application of the other exemptions to Records C-7 to C-13, C-15, C-16 and C-18, it is not necessary for me to apply section 20 of the Act to them.

 

ORDER:

 

1.         I order the Ministry to disclose the following records, or parts of records, to the appellant by June 26, 1998 but not before June 22, 1998:

 

∙                       the Review Highlights portion of Record A-5 with the exception of the recommendations section on Page 2;

 

∙        all of Records A-11, A-14 and A-15 except the severed information on Page 2, the recommendations on Page 3 and the Options section;

⊊⊊⊊⊊⊊

∙⊊⊊⊊⊊ all of Records A-16 and A-17 except the severed information on Page 2, bullet point 4 on Page 3, the severed portion of Page 4 and the Options section in Record A-16;            

 

∙                       all of Record A-18 except the severed information on Pages 1, 3 and 5 and bullet point 4 on Page 4;

 

∙                       all of Record 20 except the summary on Pages 2 and 3, the recommendations on Page 25 and the Addendum;

∙                       Records A-22, B-27 and C-14 in their entirety;

 

∙                       all of Record A-23 except the recommendations on Page 2 and the Summary of Conclusions on Page 3; and

 

∙                       the October 31, 1996 memo contained in Record B-16 except paragraph 4 on Page 1.

 

2.         I uphold the Ministry’s decision to deny access to the remaining records or parts of records.

 

3.         In order to verify compliance with the terms of this order, I reserve the right to require the Ministry to provide me with copies of the records which are disclosed to the appellant pursuant to Provision 1.

 

 

 

 

 

 

 

 

Original signed by:                                                                              May 22, 1998                       

Donald Hale

Adjudicator

(formerly Inquiry Officer)

APPENDIX “A”

 

 

INDEX OF RECORDS AT ISSUE