Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Toronto Transit Commission (the TTC) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) from an individual on behalf of a corporation. The request was for copies of all documents relating to an identified Proposal, including all correspondence, memos, e-mails and reports. The TTC initially informed the requester that an access decision had been made with respect to some of the responsive records, but that an affected party had been notified in accordance with section 21 of the Act . In the same letter, the TTC stated that a separate decision letter regarding access to the remaining responsive records would be made shortly. The TTC then issued its first decision letter, identifying 77 responsive records (Group B records) and indicating that access was granted to 31 records and denied to 46 records. In denying access, the TTC relied on the exemptions in section 12 of the Act (solicitor-client privilege) for 45 of the records and section 6(1)(b) (in-camera meeting) for the other record. In a second decision letter, the TTC granted partial access to the affected party’s proposal (Group A records). In an index of records accompanying that decision, the TTC indicated that portions of four pages were being denied on the basis of sections 10(1)(a) and (b) of the Act (third party information), and portions of two pages were denied based on section 14(1) of the Act (invasion of privacy). The requester (now the appellant) appealed the decisions. During mediation, the appellant stated that he believed that additional records responsive to his request exist. Specifically, he identified that he was interested in reference checks, background checks and other records that would indicate that the TTC had verified the information contained in the proposals it was evaluating. Also during mediation, the affected party authorized the TTC to disclose to the appellant certain additional information relating to it. The TTC then issued a supplementary decision letter granting access to additional portions of the Group A records. With respect to the issue of whether additional responsive records exist, the TTC clarified that its Materials and Procurement staff is responsible for issuing and conducting the analysis of the proposals, and that reference checks and other evaluative information is included in the information contained in certain Group B records. The TTC did not identify whether any additional responsive records exist. Also in the supplementary decision, the TTC revised the exemptions claimed for certain records. Specifically, the TTC identified that section 7(1) (advice and recommendations) applied to Group B Records 2, 33, 43 and 68, and that section 6(1)(b) (closed meeting) applied to Record 7 in Group B. As well, the TTC disclosed three additional records. The TTC also provided an amended index of records, reflecting the changes made in its supplementary decision. Mediation did not resolve the remaining issues, and this file was transferred to the adjudication stage. I sent a Notice of Inquiry to the TTC and the affected party, initially. The TTC was invited to address all of the issues, and the affected party was invited to address issues concerning the application of the exemptions in sections 10(1) and 14(1) of the Act . Both parties provided representations in response to the Notice of Inquiry. In its representations, the TTC withdrew the exemption claim for three additional records. I then sent the Notice of Inquiry, along with a copy of the affected party’s representations and a severed copy of the TTC’s representations, to the appellant. I did not receive representations from the appellant. RECORDS: The records remaining at issue are: Group A records: These records consist of an identified proposal and attached documents submitted by the affected party. Most of these records were disclosed to the requester. The records remaining at issue consist of portions of pages 6, 7, 18, 19 and 20. Group B records: These records consist of various emails, memoranda, letters, notes, correspondence, reports, summary sheets and other documents related to the identified proposal (Records 1, 2, 7-18, 23-25, 27, 28, 30-33, 38-40, 43, 44, 46, 47, 50-52, 55, 59, 60, 64-66, 68, 70, 74 and 75). DISCUSSION: LATE RAISING OF THE SECTION 6 AND 7 EXEMPTIONS In the latter stages of this appeal, the TTC first raised the application of the discretionary exemption in section 7, and also applied the discretionary exemption in section 6 to certain additional records for the first time. The Code of Procedure for Appeals under the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act (the Code ) sets out basic procedural guidelines for parties involved in an appeal before this office. Section 11 of the Code (New Discretionary Exemption Claims) sets out the procedure for institutions wanting to raise new discretionary exemption claims. Section 11.01 is relevant to this issue and reads: In an appeal from an access decision an institution may make a new discretionary exemption 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. Previous orders have identified that 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. [Order PO-2113] However, 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 [Orders PO-2113 and PO-2331]. The TTC submits that the appellant has not been prejudiced in any way as a result of the TTC raising further exemptions after the commencement of the appeal. The TTC also identifies that the further exemptions were raised during the mediation stage of the process, and the parties had the opportunity to resolve these issues in mediation. The appellant did not make submissions. In the absence of any assertion of prejudice by the appellant, I have decided to allow the late exemption claims in this appeal. RESPONSIVENESS OF RECORDS The TTC takes the position that only certain portions of Records 74 and 75 (the portions which were disclosed) are responsive to the request, and that the remaining portions of these records are not responsive. In its representations the TTC quotes from the appellant’s initial request, which identifies that the request is for documents relating to a specific proposal. The TTC submits that the appellant was provided with a copy of the portions of the minutes for the two identified Commission meetings that related to the request (portions of Records 74 and 75). The TTC then states: The remaining portions of the minutes were severed as they did not reasonably relate to the appellant’s request. ... The portions of th
Decision Content
NATURE OF THE APPEAL:
The Toronto Transit Commission (the TTC) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) from an individual on behalf of a corporation. The request was for copies of all documents relating to an identified Proposal, including all correspondence, memos, e-mails and reports.