ORDER MO-2409

 

Appeal MA08-257

 

London District Catholic School Board

NATURE OF THE APPEAL:

 

The London District Catholic School Board (the Board) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to an identified workplace audit report conducted by a named individual.

 

The Board identified the record responsive to the request and, relying on the discretionary exemptions at sections 7(1) (advice or recommendations), 12 (solicitor-client privilege) and 38 (personal privacy) of the Act, denied access to it, in full.

 

The requester (now the appellant) appealed the decision.

 

During mediation the appellant indicated that he was not interested in pursuing access to certain appendices to the report.  As a result, access to those portions of the record is no longer at issue in this appeal.  The appellant also took the position that disclosure of the report was in the public interest, thereby raising the potential application of the public interest override provision at section 16 of the Act.

 

After the Mediator issued her report, the Board provided a supplementary decision letter.  In the letter, the Board clarified that it was relying on the discretionary exemptions at sections 38(a) of the Act (in conjunction with sections 7 and 12) and 38(b).  The Board also advised that, in addition to the exemptions it claimed, it would also be relying on the exclusionary provision at section 52(3) (labour relations or employment) of the Act, to deny access to the balance of the report sought by the appellant. 

 

Mediation did not resolve the appeal and it was moved to the adjudication stage of the appeals process.

 

I commenced the inquiry by sending a Notice of Inquiry setting out the facts and issues in the appeal to the Board, initially. The Board provided representation in response. I then send a Notice of Inquiry along with the non-confidential representations of the Board to the appellant. I also enclosed a copy of my recent Order MO-2385, which addressed section 52(3)3 of the Act, and invited the appellant to make submissions on this order when providing responding representations. The appellant provided representations in response to the Notice.    

 

RECORD:

 

The record at issue on this appeal is an Interim Audit Report dated October 12, 2007.  Remaining at issue are the first 16 pages of the Report.

 

DISCUSSION:

 

LABOUR RELATIONS AND EMPLOYMENT RECORDS

 

The Board takes the position that sections 52(3)1, 2 and 3 of the Act operate to remove from the ambit of the Act the remaining portion of the Interim Audit Report at issue in this appeal.

 

I will first consider section 52(3)3.

Section 52(3)3 of the Act provides:

 

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.

 

Section 52(3) is record-specific and fact-specific. If section 52(3) applies to a record, it has the effect of excluding the record from the scope of the Act.  If that is the case, I do not have jurisdiction to consider the issue of the denial of access by the Board and whether the record qualifies or does not qualify for exemption under the Act.

 

Section 52(4) provides exceptions to the section 52(3)3 exclusion, none of which apply to the records at issue here.

 

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

 

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

 

1.      the record was collected, prepared, maintained or used by the Board 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.

 

If section 52(3)3 applied at the time the record was collected, prepared, maintained or used, it does not cease to apply at a later date [Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (2001), 55 O.R. (3d) 355 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 507].

 

The Representations of the Parties

 

The Board submits that the remaining portion of the audit report falls within section 52(3)3. The Board submits that the record was collected, prepared, maintained or used in relation to the investigation into a claim of harassment in the workplace. The Board submits that the report was prepared by its external legal counsel and was used by the Board to assess its legal obligations and liabilities and to determine any required remedial action. The Board submits that the record was collected, prepared, maintained and/or used by the Board in carrying out its statutory and administrative responsibilities as an employer. 

 

The appellant’s representations do not dispute that the record arose out of a complaint of harassment in the workplace and that the Board retained legal counsel to conduct an investigation.  Citing Orders MO-1772 and PO-1905 (upheld in Goodis), however, he submits that the phrase “labour relations or employment-related matters” has been found not to apply in the context of litigation in which the institution may be found vicariously liable for the actions of its employee. He argues that the Board should not be permitted to deny access to the record in order to avoid responsibility for various actions he alleges in his representations.

 

Analysis and Findings

 

The type of records excluded from the Act by section 52(3) are documents related to matters in which the institution is acting as an employer, and terms and conditions of employment or human resources questions are at issue. Employment-related matters are separate and distinct from matters related to employees’ actions in the context of the institution’s possible vicarious liability in relation to those actions, as opposed to the employment context. (See, Ontario (Ministry of Correctional Services) v. Goodis (2008), 89 O.R. (3d) 457, [2008] O.J. No. 289 Div. Ct. (Goodis))

 

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 phrase “labour relations or employment-related matters” has been found to apply in the context of:

 

• a job competition [Orders M-830, PO-2123]

 

• an employee’s dismissal [Order MO-1654-I]

 

• a grievance under a collective agreement [Orders M-832, PO-1769]

 

• disciplinary proceedings under the Police Services Act [Order MO-1433-F]

 

• a review of “workload and working relationships” [Order PO-2057]

 

• the work of an advisory committee regarding the relationship between the government and physicians represented under the Health Care Accessibility Act [Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner) , [2003] O.J. No. 4123 (C.A.)]

 

The phrase “labour relations or employment-related matters” has been found not to apply in the context of:

 

• an organizational or operational review [Orders M-941, P-1369]
• litigation in which the institution may be found vicariously liable for the actions of its employee [Order PO-1905 (upheld in Goodis)]

 

With respect to the scope of the exclusionary provision, Swinton J. for a unanimous Court, wrote in Goodis that:

 

In Reynolds v. Ontario (Information and Privacy Commissioner, [2006] O.J. No. 4356, this Court applied the equivalent to s. 65(6) found in municipal freedom of information legislation to documents compiled by the Honourable Coulter Osborne while inquiring into the conduct of the City of Toronto in selecting a proposal to develop Union Station. The records he compiled in interviewing Ms. Reynolds, a former employee, were excluded from the Act, as Mr. Osborne was carrying out a kind of performance review, which was an employment-related exercise that led to her dismissal (at para. 66). At para. 60, Lane J. stated,

 

It seems probable that the intention of the amendment was to protect the interests of institutions by removing public rights of access to certain records relating to their relations with their own workforce.

 

Cautioning that there is no general proposition that all records pertaining to employee conduct are excluded from the Act, even if they are in files pertaining to civil litigation or complaints by a third party, Swinton J. also pointed out that “(w)hether or not a particular record is ‘employment-related’ will turn on an examination of the particular document.”  (see paragraph 29)

 

As I did in Order MO-2385, I agree with and adopt the analysis set out above for the purpose of making my determinations in this appeal. 

 

That said, I now turn to an analysis of the constituent parts of the section 52(3)3 test.

 

Part 1: collected, prepared, maintained or used

 

I have reviewed the record and find that it was collected, maintained or used by the Board, or on its behalf. Accordingly, I am satisfied that part one of the test has been met.

 

Part 2: meetings, consultations, discussions or communications

 

The Board submits that the record arose out of a harassment complaint in an employment context. I have reviewed the record and the parties’ submissions and am satisfied that the record was prepared, maintained or used by the Board, or on its behalf, in relation to meetings, consultations and communications pertaining to an investigation arising out of a complaint involving the conduct of employees.

 

As a result, I find that part two of the test under section 52(3)3 has been satisfied.

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

 

While the appellant submits that the phrase “labour relations or employment-related matters” has been found not to apply in the context of litigation in which the institution may be found vicariously liable for the actions of its employee, he provides no evidence of existing or anticipated litigation, nor does he assert the kind of factual circumstances that were before former Assistant Commissioner Tom Mitchison in Order MO-1772 or the Divisional Court in Goodis.

 

In this appeal, I am satisfied that the context of the investigation is one in which the institution was acting as an employer, and terms and conditions of employment or human resources questions were at issue. Although titled an Interim Audit Report, the portion of the record remaining at issue is not an organizational or operational review, but rather a report detailing the process and results of the investigation into the allegation of workplace harassment. In my view, the record was prepared, maintained or used by the Board, or on its behalf, in relation to meetings, consultations and communications about the investigation of the conduct of its employees.  I am therefore satisfied that the record relates directly to “employment-related matters” for the purpose of section 52(3)3.

 

The next question under part 3 is whether the employment-related matters are matters in which the Board “has an interest.”  The meaning of this phrase was addressed in Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (2001), 55 O.R. (3d) 355 (C.A.), leave to the S.C.C dismissed [2001] SCCA No. 509 [Solicitor General].  The Court stated (at paragraph 35):

 

… Examined in the general context of subsection 6, the words “in which the institution has an interest” appear on their face to relate simply to matters involving the institution’s own workforce.

 

…

 

Subclause 3 deals with records relating to a miscellaneous category of events “about labour relations or employment-related matters in which the institution has an interest”. Having regard to the purpose for which the section was enacted, and the wording of the subsection as a whole, the words “in which the institution has an interest” in subclause 3 operate simply to restrict the categories of excluded records to those records relating to the institutions’ own workforce where the focus has shifted from “employment of a person” to “employment-related matters”.  …

 

The Court also indicated that the word “interest” must refer to “more than mere curiosity or concern.” (see paragraph 34)

 

As set out above, in the circumstances of this appeal, it is clear that the record was created or maintained in relation to the institution’s investigation into a workplace harassment complaint. In this situation, I am satisfied that the context of the investigation is one in which the institution was acting as an employer, and terms and conditions of employment or human resources questions were at issue, as referenced by Swinton J. in the Goodis case, cited above, and therefore, these were employment-related matters in which the Board “has an interest” within the meaning of section 52(3)3.

 

I therefore conclude that the Board has an interest in the employment-related matters that are the subject of the responsive record.

 

Accordingly, I find that part three of the section 52(3)3 test has been met.

 

In summary, I find that the Board has established all of the requirements of section 52(3)3; the record was collected, maintained and used by the Board in relation to meetings, consultations and/or communications about employment-related matters in which the Board has an interest.  Also, it is clear that none of the exceptions in section 52(4) applies.  Accordingly, I find that the record falls within the parameters of section 52(3)3 and is, therefore, excluded from the scope of the Act.

 

As a result, it is not necessary for me to determine whether the record is also excluded under section 52(3)1 and 2, or subject to the exemptions claimed by the Board.

 

ORDER:

 

I find that the Act does not apply to the record.

 

 

 

 

Original signed by:                                                                        April 14, 2009                                                   

Steven Faughnan