Access to Information Orders
Decision Information
This is an appeal from a decision of the Toronto District School Board (the Board), made under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The decision was made in response to a request for access to the following documents: the internal copy of the Safe School Policies Manual created by the Toronto District School Board; a copy of the federal or provincial regulation, bill or act that allows for policy C.06 and its zero tolerance policy; copies of any written, phone-logs, e-mail or fax transmissions referring to the requesters sent to or created by TDSB staff at [named school] commencing September 2000 to June 2001; copies of any written, phone-logs, or e-mail transmissions referring to the requesters sent to or created by a number of named TDSB staff from September 2000 to July 31, 2001; a copy of any type of correspondence, e-mails, fax, voice-messages, telephone logs which relate to the information from any TDSB staff that was given to Catholic Children’s Aid Society relating to the requesters; copy of letters from named TDSB staff leading to the issuance of a letter of restraint to the requester issued on or about January 15, 2001; the reason why appeals for suspension for the requester’s son “were not actioned by the TDSB superintendent in the proper forum during the school year of September 2000 to June 2001”.
Decision Content
NATURE OF THE APPEAL:
This is an appeal from a decision of the Toronto District School Board (the Board), made under the Municipal Freedom of Information and Protection of Privacy Act (the Act). The decision was made in response to a request for access to the following documents:
1. the internal copy of the Safe School Policies Manual created by the Toronto District School Board;
2. a copy of the federal or provincial regulation, bill or act that allows for policy C.06 and its zero tolerance policy;
3. copies of any written, phone-logs, e-mail or fax transmissions referring to the requesters sent to or created by TDSB staff at [named school] commencing September 2000 to June 2001;
4. copies of any written, phone-logs, or e-mail transmissions referring to the requesters sent to or created by a number of named TDSB staff from September 2000 to July 31, 2001;
5. a copy of any type of correspondence, e-mails, fax, voice-messages, telephone logs which relate to the information from any TDSB staff that was given to Catholic Children’s Aid Society relating to the requesters;
6. copy of letters from named TDSB staff leading to the issuance of a letter of restraint to the requester issued on or about January 15, 2001;
7. the reason why appeals for suspension for the requester’s son “were not actioned by the TDSB superintendent in the proper forum during the school year of September 2000 to June 2001”.
On April 30, 2002, the requester submitted another request which included the above points, and a final point (part 8) requesting “information relating to the reason for the Cease and Desist Letter that was issued by [a named individual] to the [requester’s] family on or about December 17, 2001 ”
The Board responded to the request in three separate decision letters. A summary of its decision is as follows:
1. A copy of the Board’s Safe School Policies Manual
There is no requirement under the Act to make the Manual available to the public.
Alternatively, access is denied under s. 13.
2. A copy of the federal or provincial regulation, bill or act that has been passed by the Government of Ontario or Canada that allows for the Board’s policy C.06, Safe Schools.
This document is not created or maintained by the Board, and is available in the government bookstore and on its web site. Access is denied under s.1 and 10(1), and under 4(1)(b), 17(1.1) and 20.1 as frivolous and vexatious.
3. All copies of any written documents, phone logs, e-mail or fax transmissions of any documentation sent to or created by Board staff at [named school] that give reference to [the requester’s family] between September 2000 and the end of June 2001.
Responsive records are either subject to the earlier appeal (MA-010272-2 and Order MO–1574-F, currently under judicial review) or withheld under s. 12. The part of the request dealing with the [2000 – 2001] school year up to the date of the 2001 request is also denied under s. 20.1 as frivolous and vexatious.
4. All copies of any written documents, e-mail, phone logs or e-mail transmissions of any information which refers to [the requester’s family] that was sent to or created from September 2000 to July 31, 2001 by:
(a), (b) and (c) [Two named individuals] and the [named centre].
For the first two named individuals and the [named centre], responsive records are either subject to the earlier appeal (MA-010272-2 and Order MO-1574-F, currently under judicial review) or withheld under s. 12. The part of the request dealing with the [2000 – 2001] school year up to the date of the 2001 request is also denied under s. 20.1 as frivolous and vexatious.
(d) and (e) [Two named superintendents]
There are no records from the first superintendent, and records are released from the second superintendent. The other responsive records are severed or withheld under s. 2(1), 4(1), 12, 13, 14, 38(a), 38(b) and 54(c).
(f), (g) and (h) the Chairperson and other administrative staff
There are no additional responsive records.
5. All copies of any type of correspondence, e-mails, fax or e-mail transmissions or copies of voice messages or telephone logs which relate to the information from [named individuals] given to the Catholic Children’s Aid Society regarding [the requester’s family].
There are no responsive records in addition to those which are part of the earlier appeal.
6. All copies of any letters or other documents from [named individual] that led to their issuance of a letter of restraint that was issued on or about January 15, 2001 to [the requester].
Access is denied under s. 2(1), 4(1), 12, 13, 14, 38(a), 38(b) and 54(c).
7. Why all the appeals for suspensions for [the requester’s son] by his parents that were sent to the Board were not actioned by the Board Superintendent, in the proper forum during the school year of September 2000 to June 2001,
and,
8. The reason for the “cease and desist” letter dated on or about December 17, 2001 to [the requester’s family].
The Act applies only to recorded information pursuant to the definition of “personal information” in s. 2(1). The Act does not provide for the provision of a “reason” for issuing a document. (applies to both points 7 and 8)
The requester, now the appellant, appealed the Board’s decisions.
During mediation, the Board replaced the reference to section 10(1) with section 15(a) of the Act. In the Mediators’ Report, the issues in dispute are listed as: whether the Board conducted a reasonable search for records, whether the Board may raise section 15(a) (information publicly available) and if so, whether it applies, whether part of the request is frivolous and vexatious under sections 4(1)(b), 17(1.1) and 20.1(1.1), whether the records are exempt from disclosure under section 12 (solicitor client privilege), 13 (safety or health), 14 (invasion of privacy) and 38(a) and (b) (discretion to refuse requester’s own information), and whether section 54(c) (access rights of a parent) and section 4(1) (custody and control) apply to the circumstances of this appeal.
Further mediation was not possible and the file was referred to adjudication. I sent a Notice of Inquiry initially to the Board, inviting it to submit representations on the facts and issues raised by the appeal. In this Notice, I indicated my preliminary determination that it was unnecessary to consider whether part of the request is frivolous and vexatious, and invited submissions on whether the doctrine of issue estoppel applies in the circumstances of this appeal. I then sent the Notice as well as portions of the Board’s representations to the appellant, who has also submitted representations.
RECORDS:
- The Safe School Procedures Manual (Record 1)
• Approximately 80 records which were at issue in Appeal No. MA-010272-2 and covered by the determinations in Orders MO-1574-F and MO-1595-R (upheld in Toronto District School Board v. John Doe [2004] O.J. No. 2587)
• Records marked as 4A to 4M in the Board’s Document Brief, and which consist of the severed portions of an email message and an agenda (4A and 4B), fax cover sheets (4C, 4D, 4L), handwritten notes (4F, 4G, 4I, 4K), a memo and its attachments (4E), an email message (4H), the severed portions of an Individual Education Plan (4J) and an audiotape (4M)
DISCUSSION:
ISSUE ESTOPPEL
As indicated above, approximately 80 of the records covered by the scope of this request were also at issue in Appeal No. MA-010272-2. In that appeal, the appellant’s entitlement to access to these records was considered by Adjudicator Donald Hale in Orders MO-1574-F and MO-1595-R and by the Divisional Court on judicial review in Toronto District School Board v. John Doe, above. In the result, the appellant was granted access to some of the records at issue and denied access to others. Further, the appellant states that he has been provided with the records that the Board was ordered to disclose in those orders. This raises the question of whether I should consider the issue once again of whether the appellant is entitled to have access to these records.
In Order PO-1676, Assistant Commissioner Tom Mitchinson considered whether the doctrine of issue estoppel applied to decisions of this office:
Some authorities assert that issue estoppel cannot apply to administrative tribunals, although this view is not universally accepted. In Administrative Law (3rd edition) by David J. Mullan (Carswell, 1996), the author states at page 274:
The extent to which res judicata and issue estoppel pertain in the administrative process is uncertain. The bulk of authority holds either that they have no application or that they apply in a different and less decisive form than they do in the context of regular litigation.
However, Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267, 112 D.L.R. (4th) 683 (Ont. C.A.), which dealt with the question of whether a tribunal decision can be the basis of issue estoppel before a court, would appear to suggest that issue estoppel, in some form, may be available in tribunal proceedings. In obiter comments made by Madam Justice Abella at pages 280-281, she states:
... the Policy objectives underlying issue estoppel, such as avoiding duplicative litigation, inconsistent results, undue costs, and inconclusive proceedings, are enhanced in appropriate circumstances by acknowledging as binding the integrity of tribunal decisions.
...
There is no basis for restricting the application of issue estoppel to decisions made by judges in the ordinary course of litigation.
The Ontario Court of Appeal explained the law of estoppel in the case of Minott v. O’Shanter Development Co., (1999), 42 O.R. (3d) 321. Mr. Justice Laskin begins his discussion of estoppel as follows:
I will first discuss the general principles underlying issue estoppel and then apply them to this case. Issue estoppel prevents the relitigation of an issue that a court or tribunal has decided in a previous proceeding. In this sense issue estoppel forms part of the broader principle of res judicata. ... Res judicata itself is a form of estoppel and embraces both cause of action estoppel and issue estoppel. Cause of action estoppel prevents a party from relitigating a claim that was decided or could have been raised in an earlier proceeding. ... Issue estoppel is narrower than cause of action estoppel. It prevents a party from relitigating an issue already decided in an earlier proceeding, even if the causes of action in the two proceedings differ.
The overall goal of the doctrine of res judicata, and therefore of both cause of action estoppel and issue estoppel, is judicial finality. “The doctrine prevents an encore, and reflects the law’s refusal to tolerate needless litigation.” [Holmested and Watson, Ontario Civil Procedure, v. II, s. 21 subsection 17[3]]
...
Issue estoppel has pervasive application and extends not just to decisions made by courts but, as this court's judgment in Rasanen affirms, also to decisions made by administrative tribunals. Whether the previous proceeding was before a court or an administrative tribunal, the requirements for the application of issue estoppel are the same. In Angle [Angle v. M.N.R. (1974), 47 D.L.R. (3d) 544 p. 555 (S.C.C.)] , Dickson J. set out three requirements, relying on English authority.
Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853 at p. 935, [H.L.] defined the requirements of issue estoppel as:
... (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
These three requirements have consistently been applied by Canadian courts.
In Order P-1392, former Inquiry Officer Anita Fineberg stated:
In addition, the Commissioner’s office may dismiss an appeal pursuant to section 52(1) without conducting an inquiry. One of the circumstances in which this may be done is if the appeal involves the same parties, issues and records which had previously been considered.
I agree with the above analysis and adopt it for the purposes of this appeal. This appeal and Appeal No. MA-010272-2 involve the same institution (the Board) and the same appellant. Orders MO-1574-F and 1595-R, issued in the context of Appeal No. MA-010272-2, decided the issue of the appellant’s entitlement to have access to a number of records, approximately 80 of which are also before me. Whether as a matter of issue estoppel, or the application of section 41(1) (the equivalent to section 52(1) of the provincial Act), I find that the policy of judicial finality would be undermined if I were to review the issue of access to these 80 records once again. These records are therefore excluded from the scope of this appeal.
The records remaining at issue are the Safe Schools Procedures Manual (the Manual) and those marked as 4A to 4M in the Board’s Document Brief.
CAN THE APPELLANT EXERCISE ACCESS RIGHTS ON BEHALF OF HIS SON UNDER SECTION 54(c)?
Section 54(c) permits the exercise of rights under the Act on behalf of minors, in the following terms:
Any right or power conferred on an individual by this Act may be exercised,
if the individual is less than sixteen years of age, by a person who has lawful custody of the individual.
The Board does not dispute that the appellant’s son was under the age of sixteen at the time of the request. However, the Board states that even where it is accepted that a parent has lawful custody of a child, it is incumbent upon the adjudicator to determine whether the parent is exercising that right in the child’s best interests. The Board submits that the affidavit evidence and portions of the records themselves suggest the contrary.
In Order P-673, on which the Board relies, former Assistant Commissioner Irwin Glasberg found that the disclosure of records maintained by the Office of Child and Family Service Advocacy responsive to a request from a custodial parent for records relating to his son would not be in the best interest of the child. The records related to a custody and child protection dispute involving the father and his former spouse. The former Assistant Commissioner found that the requester father was seeking the information contained in the records in order to “meet his personal objectives and not those of his son.” As a result, he held that the father was not entitled to exercise the access rights of his son in accordance with the provincial equivalent provision to section 54(c).
I find the circumstances of this appeal to be very different from those discussed in Order P-673, which arose out of a custody and child protection dispute. This argument was also previously raised by the Board in Appeal MA-010272-2, in relation to the appellant. Adjudicator Donald Hale rejected the Board’s position, finding no basis for its contention that the request was made for some improper or collateral purpose (see Order MO-1574-F, upheld by the Divisional Court on judicial review in Toronto District School Board v. John Doe, above). The request in that appeal and the one before me arise out of the same set of circumstances, and can be viewed as part of ongoing issues between the appellant and the Board in relation to the education and treatment of his son by the Board. Although it may be that, as found by Adjudicator Hale, there is a high degree of animosity between the appellant and the Board’s administration, this does not establish that the appellant is attempting to use the access provisions under the Act for improper or collateral purposes. I see no basis to reach a different conclusion from Adjudicator Hale, and I find that the appellant is entitled to exercise the access rights of his son under section 54(c).
This is also consistent with my findings in Order MO-1836, on a related request by the appellant and his wife.
REASONABLENESS OF SEARCH
In appeals involving a claim that further responsive records exist, as is the case in this appeal, the issue to be decided is whether the institution has conducted a reasonable search for the records as required by section 17 of the Act. If I am satisfied that the search carried out was reasonable in the circumstances, the decision of the Board will be upheld. If I am not satisfied, further searches may be ordered.
Where a requester provides sufficient detail about the records which he is seeking and the Board indicates that further records do not exist, it is my responsibility to ensure that the Board has made a reasonable search to identify any records which are responsive to the request. The Act does not require the Board to prove with absolute certainty that further records do not exist. However, in my view, in order to properly discharge its obligations under the Act, the Board must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive to the request.
Although an appellant will rarely be in a position to indicate precisely which records have not been identified in the Board’s response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records exist.
In its representations, the Board describes its search for records. The Board identifies the officials who were contacted to co-ordinate the search, and the reasons why these individuals were suitable for this task. The Board provides copies of the directions given to these officials about the search, in which the request is set out. Other details about the search are given in the Board’s representations, such as when inquiries were made of certain individuals, and when the records were collected and reviewed. Where no records were located in respect of some aspects of the request, the Board provides reasons for this.
The appellant submits that additional records exist beyond those located by the Board. He relies on copies of notes made by a Board official in November of 2001, email messages from the same time period, a conversation between the appellant’s wife and a Board official and other events of this time, in support of his position. I have reviewed this evidence, and I find that it does not establish a reasonable basis for concluding that additional records exist. This is consistent with my conclusions in Order MO-1836 in which I canvassed similar issues and evidence in relation to another request by this appellant.
In sum, based on the evidence provided, I am satisfied that the Board conducted a reasonable search for records responsive to the request.
Form of the Request
The Board takes the position that parts 7 and 8 are not proper requests, as the Act does not require the provision of reasons.
In Order M-493, Senior Adjudicator John Higgins addressed the argument that a request in the form of questions does not constitute a proper request under the Act, stating:
“even if I agreed with the Board that the request is, for the most part, in the form of questions, I would not agree that, on this basis, the request is not a proper one under the Act. The Board has not provided any authority to substantiate this argument. Moreover, it would be contrary to the spirit of the Act to exclude a request on such a technical basis.
In my view, when such a request is received, the Board is obliged to consider what records in its possession might, in whole or in part, contain information which would answer the questions asked. Under section [24] of the Act, if the request is not sufficiently particular "... to enable an experienced employee of the institution, upon a reasonable effort, to identify the record", then the Board may have recourse to the clarification provisions of section [24(2)].”
The Board submits that parts 7 and 8 are stated in the form of a request for reasons. In relation to part 8, in which the appellant asks for the reason why a letter was sent to the appellant’s family, it states that the letter itself provides the answer. The Board provides a copy of this letter. In relation to part 7, in which the appellant asks for the reason why a Board official failed to take certain actions, the Board submits that it is argumentative and signifies an attempt by the appellant to use the Act to compel a response from the Board that he is unable to obtain otherwise.
The Board also submits that the appellant has already made requests for all of the records of the Board official named in part 7.
In his submissions, the appellant does not directly address the issue of whether parts 7 and 8 of his request constitute a proper request for records under the Act. He asserts that he is entitled to answers to his questions, and he provides his reasons as to why the Board’s actions in relation to his son were improper.
On my review of the representations and evidence, I am satisfied that the Board fulfilled its obligations in the manner in which it has responded to parts 7 and 8 of the request. In addressing this issue, the appellant’s representations demonstrate a continuing and vigorous disagreement with the decisions and actions taken by the Board with respect to his son. I am satisfied that parts 7 and 8 of his request are an extension of this same disagreement, rather than a request for records per se.
I am satisfied that the Board considered whether other records might contain information that would answer the questions asked, and properly decided that no response was warranted.
RESPONSIVENESS
The Board takes the position that Record 4M, an audiotape, is not responsive to the request. It relies on the fact that the request covers records “sent to or created by a number of named TDSB staff from September 2000 to July 31, 2001”.
Institutions should adopt a liberal interpretation of a request, in order to best serve the purpose or spirit of the Act. Generally, ambiguity in the request should be resolved in the requester’s favour [Orders P-134, P-880].
To be considered responsive to the request, records must “reasonably relate” to the request [Order P-880].
I have reviewed the audiotape at issue, and the wording of the request. The request is clear and unambiguous about time frame covering the records sought. Based on the Board’s submissions about the timing of the communications on the audiotape, I find that it does not fall within the time frame specified by the appellant. Record 4M, the audiotape, is not responsive to the request and it is unnecessary to consider it further.
LATE RAISING OF DISCRETIONARY EXEMPTION
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.
Section 15 is a discretionary exemption that must be raised within 35 days of the issuance of the Confirmation of Appeal by this office. In this case, the Confirmation of Appeal for this file is dated July 19, 2002. The Board was advised in the Confirmation of Appeal that it had until August 26, 2002 to raise any new discretionary exemptions. As indicated above, the Board replaced the reference to section 10(1) in its decision with section 15(a) on January 27, 2003, approximately 150 days after this deadline. In the Mediator’s Report, this was described as an issue about the late raising of a discretionary exemption claim.
The Board submits that in its decision of May 2002, it clearly stated that “these are not documents created or maintained by the Board, and are publicly available from the Government bookstore, as well as its web site.” Its response was clearly directed to the section 15(a) exemption. However, it referred to section 10(1), through inadvertence, rather than section 15(a). Section 10(1), relating to disclosure of trade secrets, is clearly inapplicable to this appeal, in the Board’s submission.
The appellant asks that I reject the Board’s position on this issue.
I am satisfied that the Board’s initial reference to section 10(1) was inadvertent and that the substantive elements of the section 15(a) were referred to in its decision letter to the appellant. There has been no prejudice to the appellant as a result of this amendment to the Board’s position, and it would be unduly technical in the circumstances to refuse what is in essence a correction of a clerical error.
I will therefore consider whether section 15(a) applies in the circumstances of this appeal.
RECORDS PUBLICLY AVAILABLE
Section 15(a) states:
A head may refuse to disclose a record if,
the record or the information contained in the record has been published or is currently available to the public
In order for records to qualify for exemption under section 15(a), they must either be published or available to members of the public generally, through a regularized system of access such as, for example, a public library or a government publications centre. [See Orders P-327, P-1316, P-1387 and PO-1655]
The purpose of section 15(a) relates to questions of convenience (Order 170). Where the record in dispute constitutes a copy of the entire published document, the balance of convenience leans in favour of the institution and the record can be properly withheld. Where the records at issue constitute only a portion of a much larger document, the balance of convenience does not favour the institution. [See Orders M-773 and P-1384]
The Board submits that to the extent that part 2 of the request is directed at obtaining access to federal or provincial regulations or statutes, these materials are publicly available through a regularized system of access. The Board relies on Order P-1387 in support of its position.
Further, the Board submits that this part of the request is not in fact a request for records, but for the legal basis for a particular Board policy. In this regard, it asks for a legal opinion, or requires the Board to defend the legality of its policy.
The appellant states that he is content with obtaining access to government statutes electronically. His submissions on section 15(a) are directed to the Board’s Safe Schools Procedures Manual, which is not at issue under this section.
Given the appellant’s position, I am satisfied that to the extent that part 2 of the request can be interpreted as a request for access to statutes and regulations, the appellant has effectively withdrawn this part of the request.