During the mediation stage of the appeal, the TTC agreed to disclose Records 3, 4, and 5 to the appellant.  The TTC also clarified that Record 2 responds to only a portion of part 2 of the request and that information relating specifically to juvenile/underage persons does not exist.  The appellant confirmed that he wished to pursue access to Record 2 regardless.

As further mediation was not possible, the file was transferred to the adjudication stage of the appeals process.  I first sought and received the representations of the TTC by providing it with a Notice of Inquiry setting out the facts and issues in the appeal.  The TTC’s submissions were then shared with the appellant, who also provided me with representations.  The sole issue for determination in this appeal is whether section 52(3)3 of the Act excludes the responsive records from the operation of the Act.

RECORDS:

There are two records at issue in this appeal.  Both are entitled Training Precis and were prepared by the TTC’s Corporate Security Department to assist in the training of its Special Constables.  Record 1 consists of two documents that address “empty hand control” and “tactical handcuffing”, while Record 2 describes how to take statements and interview suspects.

DISCUSSION:

ARE THE RECORDS EXCLUED FROM THE OPERATION OF THE ACT UNDER SECTION 52(3)3?

General Principles

Section 52(3)3 states:

Subject to subsection (4), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:

Meetings, consultations, discussions or communications about labour relations or employment related matters in which the institution has an interest.

If section 52(3) applies to the records, and none of the exceptions found in section 52(4) applies, the records are excluded from the scope of the Act.

The term “in relation to” in section 52(3) means “for the purpose of, as a result of, or substantially connected to” [Order P-1223].

The term “labour relations” refers to the collective bargaining relationship between an institution and its employees, as governed by collective bargaining legislation, or to analogous relationships [Order PO-2157, Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner), [2003] O.J. No. 4123 (C.A.)]. 

The term “employment-related matters” refers to human resources or staff relations issues arising from the relationship between an employer and employees that do not arise out of a collective bargaining relationship [Order PO-2157].

Section 52(3)3:  matters in which the institution has an interest

For section 52(3)3 to apply, the TTC must establish that:

1.         the records were collected, prepared, maintained or used by an institution or on its behalf;

2.         this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and

3.                  these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the institution has an interest.

Part 1:  collected, prepared, maintained or used

The appellant’s submissions do not expressly address the application of the section 52(3)3 exclusion.  Rather, the appellant simply indicates that:

Our intent is not to get the personal or employment file of any individual.  The requested information is that of routine standard training and process of instruction that applies to all officers (and if it changes then) or what was applicable to the batch or class to which the officer in question belonged.  The intent is to know the criterion in place (not the personal details).

With respect to part one of the test outlined above, the TTC submits that it “collected, prepared, maintained and used” the records.  On a plain reading of the records, I agree and find that they meet the criteria for the first part of the test under section 52(3)3 as they were clearly prepared, maintained and used by the TTC.

Part 2:  meetings, consultations, discussions or communications

The TTC submits that:

. . . records 1 and 2 are discussed and distributed during extensive training sessions to officers in the Special Constable Services Department to communicate the procedures that the Special Constables must follow in conducting their duties.

I concur and find that the TTC has maintained and used the records in relation to the conduct of various training sessions involving its Special Constables.  As a result, I find that part two of the test has been satisfied.

Part 3:  labour relations or employment-related matters in which the TTC has an interest

In support of its argument that part three of the test under section 52(3)3 has been met, the TTC submits that:

The Commission has a significant interest and responsibility in ensuring that its employees are adequately trained for their duties, particularly where there is an increased risk of injury to the employee or the public.  An employee’s failure to follow these procedures could compromise officer safety, cause injury to the officer, other employees, the suspect or the public; result in a complaint regarding the apprehension or interrogation of a suspect and/or subject the employee to discipline up to and including dismissal.  In some instances, the Commission or its employee could be subject to civil litigation.

As noted above, in order to satisfy the third part of the test under section 52(3)3, the TTC must establish that these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which it has an interest.

Based on my review of the records, I find that their subject matter is not about “labour relations or employment-related matters” and that section 52(3)3 has no application to the records.  While the records address in a generic way how TTC Special Constables are to carry out a portion of their duties, they are “about” an employment-related matter only peripherally as they address a Commission-wide procedure for the Special Constables to follow.  In addition, I find that the records are clearly not “about” labour relations as that term has been defined in previous decisions [Order PO-2157].

I find support for this approach in Order MO-1729 where Adjudicator Shirley Senoff examined the application of the exclusionary provision in section 52(3)3 to those portions of the London Police Service Procedure Manual dealing with the use of force and the powers of search and seizure.  In finding that the section 52(3)3exclusion did not apply to these portions of the Manual, she made the following findings:

By the same token, the two chapters in the Manual at issue in this appeal (“Use of Force” and “Power of Search and Seizure”) set out various procedures governing how the Police carry out some of their duties.  They are not “about labour relations or employment-related matters;” any connection they might have to workforce-related issues is merely incidental (see also Order PO-2093-I).

I do not accept the Police’s submission that section 52(3)3 should be given a “much broader” reading to extend to the records at issue.  In my view, section 52(3)3 is not directed at records of this nature.  Whether or not portions of the Manual are “sensitive and confidential” is irrelevant and does not affect my finding in this regard.

Accordingly, the two chapters at issue do not meet the requirements of Part 3 of section 52(3)3 and they are subject to the Act.

Because I have found that the records are subject to the Act, I will order the TTC to issue the appellant with a decision respecting access to the records in accordance with section 19 of the Act, using the date of this order as the date of request and without recourse to a time extension under section 20(1) of the Act.

ORDER:

1.         I order the TTC to provide the appellant with a decision respecting access to the records at issue in accordance with section 19 of the Act, using the date of this order as the date of request and without recourse to a time extension under section 20(1) of the Act.

2.         I reserve the right to require the TTC to provide me with a copy of the decision letter referred to in Order Provision 1.

                                                                                                             August 25, 2005                    

Donald Hale