The appellant submits that this is an important distinction.  The appellant submits that section 65(6)3 is record specific, not information specific – it refers to a “record” and not to “information”.  The appellant contrasts this with other sections of the Act that deal with “information” as opposed to “records”, such as sections 17 and 21.  The appellant submits that it is to be expected that the type of information in the record would be collected, prepared, maintained or used by the Ministry for various purposes, and that the information contained in this record would be contained in numerous records.  The appellant submits that the mere fact that this information may have been used by the Ministry in a meeting dealing with employment related matters cannot mean that all other records that contain the information are exempt from release pursuant to section 65(6)3.  The specific record used at the meeting, and not the information contained in the record is so excluded.  Otherwise, a vast number of records would likely be excluded from the Act pursuant to section 65(6)3 merely because they have been “tainted” by information contained in a record that may meet the requirements of the section.

The appellant also made submissions on the relationship between the Ministry’s position under section 65(6) in this appeal and its position in another appeal, which I will discuss in greater detail below.

In reply, the Ministry states that the record is a summary of information extracted from Overtime Report/Bank Register Forms, the Workforce Information Network (WIN) and the OPP Paylist (payroll records).  The information was collected, prepared, maintained and used by Ministry staff, including the Manager of the OPP Security Section and the Manager of OPP Human Resources.  The single-page document was created for administrative convenience in order to isolate the specific information requested by the appellant under the Act, as the source documents contain additional information that is not reasonably responsive to the appellant’s specific request.

The Ministry submits that the exclusion under section 65(6)3 extends to information derived from the source records.  In support of this position, the Ministry refers to the appeals under consideration in Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (2001), 55 O.R. (3d) 355 (C.A.).  The responsive information in one of the requests at issue was extracted from other records.  The Court of Appeal ultimately concluded that the requested information was excluded under section 65(6)3.  The Ministry also referred to Order P-1271, which considered the exclusion contained in section 65(2)(a) for clinical records and applied it to information derived from clinical records.  In conclusion, the Ministry submits that information derived from records respecting staff scheduling and compensation issues relating to the OPP security staff is excluded in accordance with section 65(6).

Analysis

The representations of the appellant raise the issue of whether a record created for the purposes of responding to a request ought to be treated as an independent “record” for the purposes of applying section 65(6), separate from a consideration of the information in the record.  The effect of the appellant’s position is that such a record would not be covered by section 65(6) even if all of the information it compiles would otherwise be excluded under section 65(6).

I cannot accept the appellant’s submissions. 

To begin with, I am satisfied that the Ministry has established that the information in the record was collected, prepared, maintained or used by the Ministry in relation to discussions and communications with respect to employment-related matters in which the Ministry, as the employer of OPP officers, has an interest.  The recording of information about overtime worked for scheduling and payment purposes is so clearly a part of standard personnel management practices that it hardly requires any more specific an explanation of why such information was so collected, prepared, maintained or used.  Even the appellant agrees that it is “obvious” that such information would be routinely communicated to scheduling and payroll staff of the Ministry.  Accordingly, I am satisfied that the information in the record is covered by the provisions of section 65(6)3.

Further, it is significant that the Ministry created the record solely for the purpose of responding to the request under the Act, as a convenient means of isolating the specific information sought by the appellant.  The record was not created for any other purpose, nor has it been used for any other purpose.   The information taken from the source records has not been incorporated with other types of information, nor been made part of a larger document used for non-labour relations or employment purposes.  In a sense, the record before me is merely a vehicle for the presentation of the information which the appellant seeks.  In such circumstances, I find that there is no purpose under the Act to be served by making a distinction between the record and the information contained in it.  On the facts before me, the record has no independent purpose or status apart from the presentation of responsive information. 

I acknowledge the appellant’s submission that section 65(6) refers to “records” rather than “information”.  However, I do not agree with the appellant that this wording prevents the application of section 65(6) to a record existing solely for the purpose of responding to a request under the Act. 

The facts of this appeal do not engage the concerns raised by the appellant about vast numbers of records being “tainted” by the inclusion of labour relations or employment information.  Further, prior orders have made it clear that a “substantial connection” to a labour relations or employment related matter is required in order for section 65(6) or its municipal equivalent to apply, and that the inclusion of some labour relations or employment information in a record is not in itself conclusive.  In Order PO-2231, for instance, a record containing labour relations or employment-related information was not excluded from the Act as the record had a broader purpose unrelated to labour relations or employment.  In Orders P-1369 and MO-1654-I records containing information that may have an impact on future labour relations negotiations or containing suggestions about the creation or elimination of certain positions in an organization were found to be related more to a “general organization review” than to labour or employment matters.  In the above-described situations, section 65(6) (or its municipal equivalent) did not apply to exclude the records from the Act, despite the fact that they contained information arguably related to labour or employment matters.  The facts of these appeals are distinguishable from those in the one before me, and the approach taken in these orders addresses some of the issues raised by the appellant.

I agree with the Ministry that Order P-1271, discussing the exclusion of clinical records in relation to patients of psychiatric facilities, supports my above conclusions, although I would exercise some caution in applying an order under a different provision of the Act to decisions under section 65(6), particularly given the number of orders issued under 65(6) since the time of that particular order.

Finally, the appellant has pointed out that certain Overtime Report/Bank Register Forms are the subject of another appeal (No. PA-010085-3), in which the Ministry has not taken the position that section 65(6) applies to exclude these records from the Act.  Rather, the Ministry relied on the exemptions in sections 14 and 21 to withhold access to them.  The appellant submits that the Ministry has provided no basis as to why the record in this appeal should not be similarly treated. 

In Order PO-2175-R, Assistant Commissioner Tom Mitchinson found the Forms at issue in Appeal No. PA-010085-3 exempt from disclosure under section 14(1)(e).  After consideration, I see no reason to inquire into the positions taken by the Ministry in the other appeal nor reconcile them with the position taken in the one before me in order to decide the issues under section 65(6).  There is no inconsistency in the legal determinations made in that appeal and those I have made here.  As no issue as to the application of section 65(6) was raised in Appeal No. PA-010085-3, the Assistant Commissioner made no finding under section 65(6). 

In conclusion, I am satisfied that the Ministry has established the requirements for the application of section 65(6)3 to the record at issue in this appeal.   The record is accordingly excluded from the Act. 

ORDER:

I uphold the Ministry’s decision.

Original signed by:                                                                              March 4, 2004                                              

Sherry Liang