Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Ontario Lottery and Gaming Corporation (the OLGC) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for the following information: A list, catalogue or index of policies and procedures used by the Corporation. These are indicated in the ‘Records Classification and Retention Schedule’ under ‘Administrative Records’, but may not be exclusive to that heading. I am requesting detailed titles and if available brief descriptions of their contents. A list, catalogue or index of manuals, directives or guidelines that are prepared by the Corporation. This request is for detailed titles of manuals, guidelines, etc even if they contain in whole or in part information that would be exempted from access by the Act . The request also stated: As section 35 of the Act addresses itself to availability, would you also provide information on the location of reading room(s) and the hours of operation to view the materials. The OLGC located responsive records and made the following decisions respecting access to the responsive records for each part of the request, as follows: The OLGC granted access in part, but denied access to its Human Resource policies in accordance with section 65(6)3 of the Act . Further, the OLGC also denied the requester access to its Internal Control Policies as they relate to its accounting and security procedures under section 14(1)(i) of the Act (law enforcement). In response to this part of the request, the OLGC advised the requester that there is no single record that lists manuals, directives, or guidelines for all its lines of businesses – Lotteries, Charity Casinos, Slots at Racetrack, and Commercial Casinos. The OLGC also agreed to make arrangements for the requester to view the records where access has been granted. The requester, now the appellant, appealed the OLGC’s decision. During the mediation stage of the appeal, the OLGC disclosed all of the records to which it had applied section 65(6)3. As a result, these records are no longer at issue in this appeal. The appellant also agreed that he was only seeking access to the Tables of Contents for three manuals prepared by the OLGC with respect to its charity casinos. In a letter to the appellant dated November 3, 2003, the OLGC claimed the application of the discretionary exemptions in sections 14(1)(c) and (l) in addition to section 14(1)(i) to the remaining records. The appellant objected to the inclusion of these additional discretionary exemptions by the OLGC. Further mediation was not possible and the matter was moved into the adjudication stage of the appeals process. I decided to seek the representations of the OLGC initially. The OLGC submitted representations, which were shared in their entirety with the appellant, who also made submissions. RECORDS: The records at issue in this appeal consist of the Tables of Contents for the following OLGC Internal Control Policies Manuals: Charity Casino System of Accounting & Internal Control Manual Surveillance Plan & Procedure Manual Security Department Operating Procedures DISCUSSION: Is the Ministry entitled to rely on the discretionary exemptions in sections 14(1)(c) and (l)? In the Confirmation of Appeal provided by this office to the OLGC on July 24, 2003, the OLGC was advised that it was permitted to raise the application of additional discretionary exemptions to the records only until August 28, 2003. The OLGC did not raise any additional discretionary exemptions by that date. In a letter to the appellant dated November 3, 2003, the OLGC first raised the possible application of the discretionary exemptions in sections 14(1)(c) and (l) of the Act . Part IV, paragraph 11.01 of the IPC Code of Procedure provides: 11.01 In an appeal from an access decision, excluding an appeal arising from a deemed refusal, an institution may make a new discretionary exemption claim only within 35 days after the institution is notified of the appeal. A new discretionary exemption claim made within this period shall be contained in a new written decision sent to the parties and the IPC. If the appeal proceeds to the Adjudication stage, the Adjudicator may decide not to consider a new discretionary exemption claim made after the 35-day period. In the Notice of Inquiry provided to the parties, I asked for representations on this issue. The Ministry responded as follows: As the manuals in question are mandated by the Alcohol and Gaming Commission of Ontario [the AGCO], OLGC believed that it had an obligation to consult with the regulator with respect to any appeal of the OLGC’s decision not to disclose the records in question. The regulator [the AGCO] was contacted and as soon as OLGC received the regulator’s response, the OLGC advised of the additional discretionary exemptions. There is no prejudice suffered by the appellant in OLGC claiming the additional discretionary exemptions as the exemptions were claimed during the mediation period and the discretionary exemptions in sections 14(1)(c), (i) and (l) all relate to the safeguarding of OLGC’s patrons, employees, assets and games. The appellant responded to this portion of the Notice of Inquiry by objecting to the inclusion of these additional discretionary exemptions in the appeal. He notes that a number of delays in the processing of this appeal can be laid at the feet of the OLGC and that he has suffered prejudice as a result of them. The appellant points out that the additional discretionary exemptions in sections 14(1)(c) and (l) were only put forward two days before the file was moved to the adjudication stage of the process but some 68 days after the deadline imposed by the IPC in its Confirmation of Appeal. In Order PO-2251, Adjudicator Rosemary Muzzi articulated the issue surrounding the late raising of discretionary exemptions as follows: