Access to Information Orders
Decision Information
•
Request for records created during the processing of an earlier, ongoing appeal by the requester, and for minutes of a meeting.
•
Section 6(1)(b) (in-camera meeting) – upheld.
•
Section 12 (solicitor-client privilege) - upheld
•
Section 41(9) (evidence in IPC appeal privileged) – applied to deny access to notes of conversations between the Mediator and the City's Freedom of Information Coordinator in the earlier, ongoing appeal.
•
Section 16 (public interest override) – not applied.
•
The institution's decision was upheld.
Decision Content
NATURE OF THE APPEAL:
Background – earlier request
In January 2006, the requester submitted a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) to the City of Waterloo (the City) for records that referred to him. The City denied access to the responsive records and the requester appealed the City’s decision to this office. As a result, Appeal MA-060094-1 and, subsequently, Appeal MA-060094-2 were opened. Appeal MA-060094-2 is currently at the adjudication stage of the appeals process.
The Present Appeal
In July 2006, the requester submitted a second request under the Act to the City. The request referred to the earlier request which had been submitted to the City, and then read:
[The requester] now requests:
1. copies of all records created as a result of his initial inquiry, including but not limited to the notes, all notes of telephone calls, emails and minutes or notes taken by, in control of, or [that] were in the former possession of or under the former control of [named individuals] or any person at any meeting in which this request was discussed; and
2. a copy of the by-law or resolution passed by the City of Waterloo authorizing the City to intervene in litigation where [the requester] is the plaintiff as well as any documentation and minutes of meetings concerning this by-law or resolution.
In response, the City located responsive records and issued a decision in which it denied the requester access to them on the basis of the exemptions found in sections 6(1)(b) (closed meeting) and 12 (solicitor-client privilege). In addition, the City took the position that certain other records relating to the request were not in the custody or control of the City.
The requester (now the appellant) appealed the City’s decision, and the current appeal was opened.
During the mediation stage of the appeal, the City issued a revised decision letter to the appellant in which it identified further categories of responsive records, and denied access to them on the basis of the exemption in section 15 (information published or available) and section 41(9) of the Act. The City’s revised decision letter to the appellant also enclosed one record responsive to the request which it decided to release.
Also during mediation, the City provided the appellant with a detailed Index of Records, identifying the records responsive to the request and the exemptions claimed for each. In addition, issues regarding access to records for which section 15 was claimed were resolved, and the issue of whether certain records were in the custody or control of the City was also removed from the appeal.
Mediation did not resolve the remaining issues, and this file was transferred to the inquiry stage of the process.
A Notice of Inquiry, inviting representations on the remaining issues, was sent to the City, initially. The City provided representations to this office, in which it addressed the issues, and also took the position (for the first time) that the appellant’s request was frivolous and vexatious. Also during the inquiry stage of the process, the appellant advised that he was taking the position that the public interest override in section 16 applied to the information contained in the responsive records.
A modified Notice of Inquiry was then sent to the appellant, along with the non-confidential portions of the City’s representations. In the modified Notice, the appellant was invited to address all of the issues identified in the Notice that was sent to the City, as well as whether or not this office ought to consider the City’s “frivolous and vexatious” claim at this stage of the appeal. In addition, the appellant was invited to address the issue of whether the public interest override applies to any information that may be subject to one of the exemptions claimed by the City.
The appellant provided representations in response to the revised Notice of Inquiry, and subsequently provided this office with further, supplementary representations. Both the initial and supplementary representations were provided to the City, and the City was given the opportunity to provide reply representations, which it did.