ORDER PO-2370

 

Appeal PA-040146-1

 

Archives of Ontario

NATURE OF THE APPEAL:

 

The Archives of Ontario (the Archives) received a request under the Freedom of Information and Protection of Privacy Act (the Act), for a copy of a report on kickboxing.  In his letter, the requester specified the date the report was created and the file number.  Subsequently, the requester clarified that he wished to obtain a copy of the entire file entitled “kickboxing”.  This file had been created by the Ministry of Consumer and Commercial Relations (now the Ministry of Consumer and Business Services) and maintained by that Ministry prior to its transfer to the Archives.

 

The Archives located 10 records responsive to the request and granted partial access to them.  The Archives denied access to some of the records, in full or in part, pursuant to sections 13(1) (advice or recommendations), 19 (solicitor-client privilege), and 21(invasion of privacy).  The Archives identifies sections 21(2)(f), 21(2)(h) and 21(3)(g) in support of the section 21 claim. 

 

In its decision letter, the Archives provided the requester with a fee estimate for processing the request and advised that payment was required before the records could be disclosed.  The requester paid the fee and the records were disclosed to him.

 

The requester, now the appellant, appealed the Archives’ decision to deny access to some records, either fully or in part.

 

During mediation, the Archives granted partial access to an additional record, which had not been located at the request stage.  Also during mediation, the Archives withdrew the section 13(1) exemption claim.  To confirm these changes, the Archives created an Index of Records, which provided further information on the general nature of the undisclosed records/portions of records and indicated the exemptions that were being claimed for them.  The Archives agreed to share the Index of Records with the appellant.

 

Upon review of the Index of Records, the appellant narrowed the scope of his appeal to 5 of the 11 responsive records.  The appellant also confirmed that the report on kickboxing was no longer at issue having been disclosed in its entirety by the Archives at the request stage.

 

Further mediation was unsuccessful and the file was transferred to former Assistant Commissioner Tom Mitchinson for the adjudication stage of the appeals process.  Since Assistant Commissioner Mitchinson’s retirement, I have taken over carriage of this appeal.

 

Assistant Commissioner Mitchinson began his inquiry by sending a Notice of Inquiry setting out the facts and issues on appeal to the Archives.  The Archives responded with representations.

 

In its representations, the Archives stated that it had revised its initial position with respect to records 5 and 10.  Upon further review of these records, the Archives determined that Record 10 may be disclosed to the appellant in its entirety and portions of Record 5 may also be disclosed.  A new decision letter was subsequently issued and Record 10 and portions of Record 5 were released to the appellant.

 

Former Assistant Commissioner Mitchinson then sent a copy of the Notice of Inquiry, along with a copy of the Archives’ representations, to the appellant.  The appellant chose not to submit representations.

 

RECORDS:

 

The records that remain at issue in this appeal are listed in the Index of Records prepared by the Archives as Records 1, 2, 5, and 11.  The records were all prepared by or for the Ministry of Consumer and Commercial Relations in 1983.  These records, and the exemptions claimed for them, are as follows:

 

•         Record 1 is a 4-page legal opinion about a newscast on kickboxing that aired on February 22, 1983.  The Archives claims section 19 applies to the record.

 

•         Record 2 is a 1-page staff commentary on a newscast on kickboxing that aired on February 22, 1983.  The Archives claims section 21 applies to the record.

 

•         Record 5 is a 6-page memorandum about the regulation of kickboxing.  Portions of this record were disclosed during mediation.  The Archives claims that portions of the record are exempt under section 19 and other portions are exempt under section 21.

 

•         Record 11 is an 11-page memorandum to the Deputy Attorney General to the Director, Crown Law Office, Criminal.  The final two pages of this record are a newspaper article and an advertisement.  These pages were disclosed during mediation.  The Archives claims that section 19 applies to the remainder of the record.

 

DISCUSSION:

 

SOLICITOR-CLIENT PRIVILEGE

 

The Archives takes the position that section 19 applies to Records 1, 11 and portions of Record 5.

 

General principles

 

Section 19 of the Act reads:

 

A head may refuse to disclose a record that is subject to solicitor‑client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

 

Section 19 contains two branches.  The Archives must establish that one or the other (or both) branches apply.

The Archives claims that both Branch 1 and Branch 2 of the solicitor-client privilege exemption apply to the records.  I will begin with an analysis of the application of Branch 1 to the records at issue.

 

Branch 1:  common law privileges

 

This branch applies to a record that is subject to “solicitor-client privilege” at common law.  The term “solicitor-client privilege” encompasses two types of privilege:

 

• solicitor-client communication privilege
• litigation privilege

 

Common law litigation privilege has not been raised by the Ministry and has no application in the circumstances of this appeal.

 

Solicitor-client communication privilege

 

Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining or giving professional legal advice [Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 (S.C.C.)].

 

The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation [Order P-1551].

 

The privilege applies to “a continuum of communications” between a solicitor and client:

 

. . . Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may be sought and given as required, privilege will attach [Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Eng. C.A.)].

 

The privilege may also apply to the legal advisor’s working papers directly related to seeking, formulating or giving legal advice [Susan Hosiery Ltd. v. Minister of National Revenue, [1969] 2 Ex. C.R. 27].

 

Confidentiality is an essential component of the privilege.  Therefore, the institution must demonstrate that the communication was made in confidence, either expressly or by implication [General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.)].

 

The Archives relies on the common law solicitor-client communication privilege component of Branch 1 for Records 1, 11 and portions of Record 5.

 

With respect to Record 1, the Archives submits:

 

The Record is a legal opinion prepared by counsel in the Ministry of the Attorney General for the Director of the Legal Services Branch in the Ministry of Consumer and Commercial Relations.  The opinion relates to a newscast on kickboxing that aired on February 22, 1983.

 

The covering page of the opinion – a memorandum – indicates that it was also provided to a client in the Ministry of Consumer and Commercial Relations (MCCR) on April 13^th, 1983.  The memorandum also indicates that the client provided instructions back to the Director of the Legal Services Branch in the MCCR in respect of the opinion.

 

The Archives respectfully submits that both the memorandum and opinion are subject to Branch 1, solicitor-client communication privilege and as such the document is subject to exemption under section 19.

 

The memorandum, on its face, reveals confidential communications between a client and lawyer, which are subject to common law solicitor-client communication privilege.  Communications between a solicitor and client relating to the seeking or provision of legal advice have been described as the “continuum of communications” between a solicitor and client that is protected by solicitor-client privilege at common law. (Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Engl. C.A.)). The Information and Privacy Commissioner has viewed the process of giving and receiving instructions and legal advice on a legal matter as falling within the “continuum of communications.” (PO-2223, MO-1258).

 

By the same reasoning, the Archives respectfully submits that the opinion itself, which contains legal advice and was communicated by the Director of Legal Services to the ministry client is also subject to common-law solicitor-client communications privilege.

 

The Archives acknowledges that confidentiality is a required component of common law solicitor-client privilege. (General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 (C.A.)). Although the opinion was communicated several years ago, there is nothing in the Archives’ file to indicate that this opinion has previously been disclosed outside of government, or has otherwise not been treated in confidence.  It is the government’s normal and consistent practice to treat legal opinions and advice in confidence, even where the legal opinions may have been provided twenty or more years in the past.  It is reasonable, therefore, to expect that this opinion and memorandum were originally communicated in confidence, and absent evidence to the contrary, the confidentiality of the documents has consistently been maintained.

 

Although the opinion was originally prepared by counsel in the Crown Law Office of the Ministry of the Attorney General, for the Director of Legal Services in the Ministry of Consumer and Commercial Relations, the Archives respectfully submits that it was clearly prepared in order to provide advice to the client in the Ministry of Consumer and Commercial Relations (through the Director of Legal Services in that ministry).  The role of the Crown Law Office in the Ministry of the Attorney General has always been to provide legal advice and the opinions to client across the Ontario Public Service.  Requests for opinions by a ministry to the Crown Law Office are normally directed through the Director of the ministry’s legal services branch.

 

Further, in previous Orders, the Commissioner has held that a communication between counsel of two separate ministries can be considered to be subject to solicitor-client communication privilege if there is no evidence of an arm’s length relationship between the ministries, and they share the same interests on a matter.  In this case, the Record on its face suggests that counsel of two ministries were communicating for the joint purpose of providing specialized legal advice to the MCCR client. (PO-2064)

 

Accordingly, for the reasons listed above, the Archives respectfully submits that the opinion and memorandum form part of the “continuum of communications” between the ministry client and Crown counsel, and is, therefore subject to Branch 1 of section 19.

 

With respect to the portions of Record 5, for which it claims section 19, the Archives takes the position that:

 

[T]he exempted portions of Record #5 qualify for exemption under Branch 1 of section 19 (solicitor-client privilege).  In previous Orders, the Commissioner has held that communications between non-legal staff reflecting legal advice provided by a legal advisor (or instructions provided to counsel) are subject to solicitor-client communication privilege as they form part of the “continuum” or privileged communications.  (PO-2223, MO-1258).  The information contained in Record #5 has excerpted portions of a legal opinion (namely Record #11 in this appeal).  The writer has also summarized the pith and substance of conclusions made by Crown counsel in the opinion.  Consequently, disclosure of this portion of the record would reveal the privileged solicitor-client communications.

 

With respect to Record 11, which the Archives has withheld in its entirety under section 19, the Archives submits:

 

The Record entitled “memorandum” is a legal opinion prepared by counsel in the Crown Law Office – Criminal specifically for a ministry client (the Deputy Attorney General).  The covering memo (at page 5 of the Record) and the first page of the memorandum indicate that the legal opinion was also provided to another ministry client (the Minister of Consumer and Commercial Relations) for instructions.

 

The Archives respectfully submits that the memorandum and the covering memo are subject to Branch 1, solicitor-client communication privilege and as such, are exempt in accordance with section 19.

 

It is evident on the face of the Record that the memorandum is an opinion that was originally prepared by counsel in the Crown Law Office – Criminal of the Ministry of the Attorney General for a client in the Deputy Attorney General’s Office.  Further, a covering memo (page five of the Record) as well as the first page of the memorandum make it clear that this legal opinion was also copied to a client in the Office of the Ministry of Consumer and Commercial Relations.  Accordingly, the Archives respectfully submits that the opinion forms part of the “continuum of communications” between the ministry clients and crown counsel, which are subject to common law solicitor-client communication privilege.

 

Further, the communication in the covering memo forms part of the “continuum of communications” between a solicitor and client that is protected by solicitor-client privilege at common law.  Balabel v. Air India, [1988] 2 W.L.R. 1036 at 1046 (Engl. C.A.).  The Information and Privacy Commissioner has viewed the process of giving and receiving instructions and legal advice on a legal matter as falling within the “continuum of communications.” (PO-2223, MO-1258).

 

As with record 1, the Archives submits that nothing in its files indicates that record 11 was disclosed outside of government.  As well, the Archives states that they have applied their standard practice of maintaining the confidentiality of legal opinions and advice from Crown Counsel to record 11.

 

Analysis and findings

 

On the basis of the Archives’ representations and my review of Records 1, 11 and the portions of Record 5 for which section 19 is claimed, I make the following findings:

 

Record 1 is a legal opinion prepared by Crown Counsel at the Ministry of the Attorney General for the Director of Legal Services at the Ministry of Consumer and Commercial Relations.  The cover page is a memorandum from an individual in the Minister’s office, to the Minister, indicating a direction previously given by the Minister to his Director of Legal Service with respect to the matter discussed in the attached legal opinion.  In my view, this document clearly qualifies for the common law solicitor-client communication privilege.  The main body of the record consists of a written opinion prepared by a solicitor for her client for the purpose of providing professional legal advice.  The covering memorandum clearly reveals the client’s (the Ministry’s), direction to their lawyer, Crown Counsel, through the intermediary of the Ministry’s Director of Legal Services, identifying what further action to take with respect to the matter at issue in the opinion.  Although not marked as “confidential”, given the subject matter and the context in which this record and the covering memorandum were created, it is reasonable to assume that the communication reflected in them was intended to be treated confidentially.  In my view, the information in this record, including the cover memorandum, are either direct communications between solicitor and client conveying legal advice or are accurately characterized as part of the “continuum of communications” between solicitor and client described in Balabel.

 

Record 11 is also a legal opinion, prepared by Crown Counsel at the Ministry of the Attorney General for the Deputy Attorney General.  For the same reasons that I outlined above for Record 1, I find that this document qualifies for the common law solicitor-client communication privilege.  The record is a written opinion prepared by a solicitor for his client, for the purpose of providing professional legal advice and, given the context, it is reasonable to assume that the communication was intended to be treated confidentially.  I find that this record is a direct communication between solicitor and client conveying legal advice and falls squarely within the scope of the common law solicitor-client privilege of Branch 1.

 

Record 5 is a memorandum addressed to the Minister of Consumer and Commercial Relations from a member of his Ministry’s staff.  The Archives has disclosed this document in part.  The portions of Record 5 which have been withheld under section 19 consist of a paragraph that describe the specific parameters of a request made to Crown Counsel for a legal opinion on the subject of kickboxing, a section that reiterates portions of the legal opinion provided to the Ministry in Record 11 and a paragraph that summarizes the conclusions made by Crown Counsel in the legal opinion.  Clearly the portions of Record 5 for which section 19 is claimed reveal confidential solicitor-client communications and legal advice, and I therefore find that these portions of Record 5 are exempt under Branch 1 of section 19.

 

In Order PO-2087, Adjudicator Laurel Cropley found that portions of a record that re-iterated, made reference to and reflected legal advice contained in other records at issue in the appeal qualified for exemption under section 19.  Following Order PO-2087, in Order PO-2223, Adjudicator Donald Hale found that email communications passing between non-legal Ministry staff that referred directly to certain legal advised passed along from Ministry counsel to other Ministry staff in the course of his providing legal advice would reveal privileged communications were exempt from disclosure under section 19.

 

Following the reasoning in those orders, although Record 5 consists of communications between non-legal staff, I find that the portions of Record 5 for which the Archives claims section 19 reflect the seeking of legal advice by the Ministry and the provision of legal advice by Crown Counsel and are subject to the section 19 solicitor-client communication privilege as they reveal privileged communications.

 

I note that the records for which the section 19 exemption are claimed originated with either the Ministry of the Attorney General or the Ministry of Consumer and Commercial Relations.  At the time of the request under the Act, they had been transferred to the Archives.  Under certain circumstances, solicitor-client privilege can be waived, for example, disclosure of the privileged documents to outside parties.  In this case, the transfer of the records to the Archives was for storage and not to provide public access, which does not suggest any intention on the part of the Ministries to waive their privilege and I am satisfied that privilege has not been lost.

 

I therefore find that Records 1 and 11, and the parts of Record 5 for which this exemption was claimed, are all exempt under the solicitor-client communications aspect of Branch 1 of section 19.

 

Given my conclusion that Branch 1 of section 19 is applicable to all three records, I do not need to consider the applicability of Branch 2 to the records.

 

PERSONAL INFORMATION

 

The Archives take the position that section 21, the personal privacy exemption, applies to Record 2 and portions of Record 5.

 

General principles

 

Under section 2(1) of the Act, personal information is defined, in part, to mean recorded information about an identifiable individual, including the personal opinions or views of the individual except where they relate to another individual [paragraph (e)] or the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual [paragraph (h)].

 

The meaning of “about” the individual

 

To qualify as personal information, the information must be about the individual in a personal capacity.  As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be “about” the individual [Orders P-257, P-427, P-1412, P-1621, R-980015, MO-1550-F, PO-2225].

 

Even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual [Orders P-1409, R-980015, PO-2225].

 

Representations

 

The Archives takes the position that Record 2, in its entirety, qualifies as the personal information of the author:

 

The Archives of Ontario claims that the memorandum contains personal information within the plain meaning of section 2(1), namely “recorded information about an identifiable individual.”  The record contains the personal information of both the author of the record, as well as an individual referred to in the record.

In respect of the author of the record, the Archives submits that the record contains the personal views and opinions of the author, qualifying as personal information under section 21(3) of [the Act].  Similarly, the record also contains views and opinions of an identifiable individual, which also qualifies as personal information under section 2(1)(e) of the Act. 

 

The Archives of Ontario acknowledges that the Commissioner has, in previous Orders, drawn a distinction between personal and professional information. Although, it appears that the record has been created in the capacity of the author’s position within the Ministry of Consumer and Commercial Relations, the Archives submits that, based on the language used by the author, the record reveals the personal rather than professional views and opinions of the author.

 

In characterizing the information contained in the record as the personal information of the author, the Archives relies upon the decisions in the Supreme Court in Dagg v. Canada (Minister of Finance)  (1997), 148 D.L.R. (4^th) 385 (S.C.C.) and Canada (Information Commissioner) v. Canada (Commissioner of the RCMP) [2003] S.C.J. No. 7 (S.C.C.) decided under the Federal Access to  Information Act .

 

In accordance with the Supreme Court’s findings in the Dagg and RCMP decisions, the Archives respectfully submits that the author’s views and opinions contained in the record are, in view of the plain meaning of personal information defined in section 2 of [the provincial Act], the personal information of the author.

 

In addition to the submissions outlined above, the Archives submits that the views and opinions of the author contained in Record #2 also qualify as personal information under the two part test set out in previous orders of this Commission.  That test was outlined by Assistant Commissioner Michinson in Order PO-2225 as follows:

 

•         In what context does the information appear? (Is it inherently personal or does it appear in a business or professional context removed from the personal sphere?)

•         If information appears in the business context, would its disclosure reveal something that is inherently personal in nature?

 

In applying this test, the Archives takes the following position:

 

The Archives submits that while it appears that this memorandum was prepared in the writer’s capacity as a public servant, disclosure of the author’s views and opinions would nevertheless, in accordance with the second part of the Commissioner’s test, reveal information about the author that is inherently personal and sensitive in nature.  In this regard, the Archives submits that the record, on its face reveals that the writer is communicating strongly held views, impressions and thoughts about a matter and about an identifiable individual.  Both the tone and expressions used in the memorandum indicate that the views and opinions expressed by the author are clearly personal, and are of a nature that cannot be objectively viewed as the professional views of the public servant.

  In addition, the Archives respectfully submits that disclosure of the record, based on an objective review of its content, could reasonably be expected to cause the writer personal distress. The fact that disclosure of the record could cause the author personal distress, long after the author’s professional relationship with the Ontario public service has ended, indicates that the record should be treated as the personal information of the writer pursuant to the second part of the test articulated by the Commissioner in MO-1753.

 

With respect to first sentence in the second to last paragraph of Record 5, the Archives submits:

 

The exempted information contains the author’s personal views on the issue of kickboxing.  Although the report appears to have been prepared in the author’s official capacity, the opinions and recommendation, however, this statement can be characterized as a recommendation made pursuant to the author’s responsibilities in preparing the report.  When the two statements are compared, the Archives respectfully submits that the first statement clearly contains the personal views of the author.

 

The Archives had severed several names in the body of the text of pages 3, 4, and 5 of Record 5. Although the Archives has withdrawn its claim that section 21(1) applies to these names, they have not yet disclosed this information to the appellant.  As section 21(1) is a mandatory exemption, it has determined that this information ought not be disclosed until the disposition of the current appeal.  The Archives has therefore, made no submissions on the whether these names constitute personal information as defined by the Act.

 

Analysis and Findings

 

Record 2

 

Record 2 is a 1-page memorandum authored by a staff member in the Ministry of Consumer and Commercial Relations.  The record contains the full name of the author of the memorandum and the first name of the individual for whom the memorandum is prepared.  The body of the memorandum consists of the author’s views and opinions about a particular issue.

 

I find that the information contained in Record 2 does not qualify as personal information as that term is defined in section 2(1) of the Act.  As acknowledged by the Archives, previous orders of this office have drawn a distinction between personal and professional information and have held that information about an individual in his or her professional or employment capacity does not constitute that individual's personal information where the information relates to the individual's employment responsibilities or position [Reconsideration Order R-980015, Order PO-1663]. Exceptions have been made where information involves an evaluation of the individual’s performance as an employee or an investigation into his or her conduct as an employee, [Orders P-721, P-939, P-1318 and PO-1772] or, as discussed by the Archives, where the information, though appearing in a business context, would reveal something that is inherently personal in nature [PO-2225, MO-1753].  These types of information are considered to be the individual's personal information even if they appear in a business context.

 

The person, who authored Record 2, prepared the memorandum in his capacity as a staff member of the Ministry.  The person for whom the memorandum was destined likewise received the memorandum in her capacity as Ministry staff.  While the record could be said to contain the opinion of the writer, that opinion is being offered in a professional, not a personal, capacity. 

 

Similarly, the subject matter of the record relates solely to matters arising during the course of employment and do not reveal or indicate that they reflect the author’s personal interest in any way.  The record also does not reflect any criticism of the manner in which the author or any other individual performed their jobs.  As a result, it cannot be said that Record 2 contains the personal information of either of the staff members identified in the record.  Nor can it be said that the record discloses anything that is inherently personal in nature about the writer.  While the author of the record may be expressing strongly held views about a subject matter and an individual, those views are expressed within the context of his position and duties.  The strength of the language used cannot turn comments made while undertaking professional duties into personal opinion.  

 

In its representations, the Archives relied on the decision of the Supreme Court of Canada in Dagg v. Canada (Minister of Finance), quoted above.  As noted by Adjudicator Donald Hale in Order R-980015, there are significant differences in both the definition and treatment of personal information as between federal access and privacy legislation and the Act, particularly in their handling of personal versus professional information, and outcomes under the federal scheme are therefore not necessarily predictive of the outcomes under the Act.  I note, moreover, that whereas the appeal before me relates to the opinions or views of a public servant acting in their professional capacity, Dagg was concerned with employment logs and found that they were not personal information based on an exception to the definition of personal information under the federal scheme.  Similarly, the Supreme Court of Canada’s decision in Canada (Information Commissioner) v. Canada (Commissioner of the RCMP), cited by the Archives, also relates to the federal access and privacy scheme and, like Dagg, arises from an exception to the definition of personal information in that scheme.  In my view, in the context of the Act, neither of these cases advances the position taken by the Archives.

 

Accordingly, I find that Record 2 does not contain personal information.  Since the section 21 exemption can only apply to personal information, and no other exemption has been claimed for Record 2, it should be disclosed in its entirety to the appellant.

 

Record 5

 

Dealing first with the names contained in the body of Record 5 that the Archives has withheld pending the determination of this appeal, all but one of these names are the names of individuals who agreed to serve on a public commission of inquiry into kickboxing.  In my view, the names do not qualify as personal information as contemplated by the section 2(1) definition.  Following the reasoning outlined above, I find that the individuals’ names appear in this record in the context of a professional engagement as part of a public commission of inquiry.  Because this was a professional engagement for these individuals, I find that their involvement in the commission would not reflect a personal interest in the subject matter of the inquiry, and their names therefore do not qualify as personal information.

 

The final name, which appears on the top of page 4, is that of a Canadian boxing champion who participated in a publicly released media interview following a particular fight.  Given the context in which his name arises, I cannot find that it appears in his personal capacity but in his capacity as a professional boxer.  In my view, disclosure of his name would not reveal anything inherently personal in nature that would bring the information into the realm of personal information.

 

Accordingly, I find that the names contained in the record do not qualify as personal information as contemplated by the Act and since only personal information can be exempt under section 21, and no other exemption has been claimed, they should be disclosed to the appellant.

 

I also find that the first sentence of the second to last paragraph on page 5 of Record 5, does not qualify as personal information as defined by section 2(1).  The sentence appears in a memorandum prepared in the course of the author’s tasks as an employee of the Ministry of Consumer and Commercial Relations and, in my view, does not reveal something inherently personal about the individual.  Although the sentence begins with words that indicate that the information to follow is the author’s personal opinion, it is the foundation upon which he bases his “personal recommendation” to the Minister, described in the second sentence, which has been released to the appellant.  I disagree with the Archives submission that the two sentences can be distinguished.  His opinion, which supports his subsequent recommendation, is made pursuant to the author’s responsibilities in producing the report and has to do with a matter that he is being asked to comment on in the course of his professional duties.  As with Record 2, although the writer may be expressing an opinion, that opinion is offered within the context of his professional duties and responsibilities.  I therefore find that this sentence is not personal information and should be disclosed to the appellant.

 

ORDER:

 

1.          I uphold the decision of the Archives to deny access to Records 1, 11 and the portions on pages 3 and 4 of Record 5 identified as being exempt under section 19.  I have provided the Archives with a highlighted version of the record outlining the information that is not to be disclosed.

 

2.          I order the Archives to disclose Record 2 as well as all of the remaining information in Record 5 by March 24, 2005.

3.          To verify compliance with this order, I reserve the right to require the City to provide me with a copy of the records disclosed to the appellant pursuant to Provision 2, upon request.

 

 

 

 

 

 

 

Original Signed By:                                                                             February 17, 2005                     

Brian Beamish