Access to Information Orders
Decision Information
The Township of Chatsworth (the Township) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to a copy of a "complete petition against [a named association] that was presented to Council on May 14, 2001 by [a named individual]." The Township granted partial access to the petition, denying access to the names, signatures, addresses and emergency telephone numbers, on the basis of section 14 of the Act (invasion of privacy). The requester, now the appellant, appealed the Township's decision. Resolution of the appeal through mediation was not successful, and it was transferred to the adjudication stage. A Notice of Inquiry was sent to the Township initially, and I received representations in response. For the first time in its representations, the Township raised the possible application of the section 12 discretionary exemption claim (solicitor-client privilege). A modified Notice, which included this new issue, was then sent to the appellant, together with the Township's representations in their entirety. The appellant also provided representations. A Notice of Inquiry was also sent to the 27 signatories of the petition, who had not been previously notified by the Township but whose interests could be affected by this appeal (the affected persons). Four signatories provided representations objecting to disclosure of any information relating to them; one Notice was returned as undeliverable; and the 19 other affected persons did not respond.
Decision Content
NATURE OF THE APPEAL:
The Township of Chatsworth (the Township) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to a copy of a “complete petition against [a named association] that was presented to Council on May 14, 2001 by [a named individual].”
The Township granted partial access to the petition, denying access to the names, signatures, addresses and emergency telephone numbers, on the basis of section 14 of the Act (invasion of privacy). The requester, now the appellant, appealed the Township’s decision.
Resolution of the appeal through mediation was not successful, and it was transferred to the adjudication stage. A Notice of Inquiry was sent to the Township initially, and I received representations in response. For the first time in its representations, the Township raised the possible application of the section 12 discretionary exemption claim (solicitor-client privilege). A modified Notice, which included this new issue, was then sent to the appellant, together with the Township’s representations in their entirety. The appellant also provided representations. A Notice of Inquiry was also sent to the 27 signatories of the petition, who had not been previously notified by the Township but whose interests could be affected by this appeal (the affected persons). Four signatories provided representations objecting to disclosure of any information relating to them; one Notice was returned as undeliverable; and the 19 other affected persons did not respond.
RECORD:
The only record at issue is a 5-page petition relating to actions taken by the named association (the Association) in the context of a matter before the Ontario Municipal Board (the OMB). The covering memorandum and body of the petition have been disclosed to the appellant, along with the newspaper article that was attached to the last page. The balance of the petition, which remains at issue, consists of the affected persons’ names, addresses, signatures and emergency numbers (i.e. property/location “addresses” for emergency purposes).
DISCUSSION:
LATE RAISING OF A NEW DISCRETIONARY EXEMPTION
After receipt of this appeal, this office sent the Township a Confirmation of Appeal. The Confirmation indicated that, based on a policy adopted by this office, the Township would have 35 days from that date (that is, until August 31, 2001) to raise any discretionary exemptions not originally claimed in its decision letter. No additional exemptions were raised during this period.
Following the completion of mediation and the issuance of a Notice of Inquiry, the Township identified a new discretionary exemption claim in its representations (section 12). These exemptions were submitted on October 12, 2001.
Previous orders of this office have held that the Commissioner, or her delegate, has the power to control the manner in which the inquiry process is undertaken. This includes the authority to set time limits for the receipt of representations and to limit the time frame during which an institution can raise new discretionary exemptions not originally cited in its decision letter, subject to a consideration of the particular circumstances of each case. This approach was upheld by the Divisional Court in the judicial review of Order P-883 (Ontario (Ministry of Consumer and Commercial Relations) v. Fineberg (21 December 1995), Toronto Doc. 220/89, leave to appeal refused [1996] O.J. No. 1838 (C.A.)).
The objective of the 35-day policy established by this office is to provide government organizations with a window of opportunity to raise new discretionary exemptions, but to restrict this opportunity to a stage in the appeal where the integrity of the process would not be compromised or the interests of the appellant prejudiced. The 35-day policy is not inflexible. The specific circumstances of each appeal must be considered individually in determining whether discretionary exemptions can be raised after the 35-day period.
The Township makes the broad assertion that the withheld information is exempt “on the ground of solicitor-client privilege” and submits:
… In light of the petition, it is debatable whether the majority of [the Association] members support the objection being advanced in the name of [the Association] in O.M.B. File Nos. R010075 and SO010010 (these appeals are currently scheduled for a hearing which begins on December 3, 2001). As a result, counsel for the Township in OMB appeals may use the petitions during cross-examination of [the Association] executive to support the Township’s anticipated argument that the majority of [the Association] membership does not support the position ostensibly advanced by [the Association] in the appeals. It is respectfully submitted that litigation privilege will attach to the identities of the petition signatories until the hearings O.M.B. R010075 and SO010010 have concluded.
The appellant takes the position that the signatories are not in a solicitor-client relationship, there is no existing or contemplated litigation against the signatories, and the list is not relevant to any OMB hearings.
The materials before me indicate that the Association has appealed two Township planning decisions to the OMB. The Township was aware of these appeals at the time it dealt with the appellant’s request under the Act, but raised only the section 14 exemption claim in support of its decision to deny access, despite having consulted with legal counsel in preparing the response letter. At the end of the mediation stage of the appeal, the Township was provided with a draft and a final version of the Report of Mediator, which outlines the facts and issues in the appeal and a summary of the results of mediation. Again, the Township did not identify the section 12 exemption claim in response to receiving these documents. It was only at the inquiry stage, the final stage of the appeal process, that the Township identified the possible application of this new discretionary exemption claim, with no explanation of any extenuating circumstances to take this case outside the parameters of the 35-day policy (see Orders P-658, P-883 and P-1137). In addition, the Township’s representations appear to indicate that this new exemption claim is time-limited, and would no longer apply when the OMB hearings have been completed. These hearings were apparently scheduled for early December of last year, and it is unclear to me whether they have been completed or whether the record at issue in this appeal may have been produced and made publicly available in that forum.
For these reasons, and based on the materials provided by the parties, I have determined that this is not an appropriate case to depart from the 35-day policy, and I will not consider the Township’s section 12 exemption claim further.
DISCUSSION:
PERSONAL INFORMATION
Section 2(1) of the Act defines “personal information”, in part, to mean recorded information about an identifiable individual, including his/her address, telephone number, fingerprints or blood type [paragraph (d)], and the individual’s name if it appears with other personal information relating to the individual [paragraph (h)].
The record contains the names, addresses, signatures and emergency numbers of the affected persons. It also reveals the fact that the affected persons have signed a petition asking the Township to take into account their objection to the position taken by the Association in appealing certain Township decisions to the OMB. In my view, this information is recorded information about identifiable individuals (the affected persons) and qualifies as personal information under paragraphs (d) and (h) of the definition of “personal information” in section 2(1) of the Act.