Access to Information Orders

ORDER M-394

 

Appeal M‑9400197

 

The Corporation of the City of Oshawa

NATURE OF THE APPEAL:

 

This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act).  The Corporation of the City of Oshawa (the City) received a request for copies of documents relating to the redevelopment plans of the Oshawa General Hospital (the OGH).  A number of specific reports and documents were described in the request.  According to the requester, the records sought constitute much of the background information relied on by the Planning and Development Department of the City in making its decision to rezone parkland to institutional use.

 

The City provided the requester with copies of some of the documents, but denied access to several others, either in whole or in part.  The requester appealed this decision.

 

A Notice of Inquiry was provided to the parties to the appeal including the City, the appellant and the OGH.  Representations were received from all parties.  Those of the OGH were in support of the submissions made by the City.  In its representations, the City indicated that it was prepared to disclose Records 37, 78 and 79 to the appellant.  These records should, therefore, be released to the appellant if the City has not already done so.

 

The appellant has confirmed that she is not seeking access to the personal information withheld from Records 68-72, 80 and 125.

 

The 91 records remaining at issue in this appeal and the exemptions claimed for each are described in detail in Appendix "A" to this order.  The City relies on the following exemptions in denying access to these records, either in whole or in part:

 

•          draft by-law - section 6(1)(a)

•          advice or recommendations -section 7(1)

•          economic and other interests - section 11(e)

•          solicitor-client privilege - section 12

•          invasion of privacy - section 14(1)

 

DISCUSSION:

 

THE CREATION OF THE RECORDS

 

Prior to discussing the application of the specific exemptions claimed by the City to deny access to these records, I will briefly describe the process which lead to the creation of these documents and provide examples of the types of records generated at various stages of the process.  I believe that this background information will assist in understanding the position of the parties to this appeal.

 

The OGH wished to expand and renovate its facilities.  It also sought approval from certain government authorities to build a cancer treatment centre.  It hired a group of consultants to prepare a proposal for these projects.  The proposal was presented to various departments of the City.

 

Obviously, redevelopment of this nature would impact on both the City and the Regional Municipality of Durham (the Region).  For approximately the past three years, representatives of the City, the OGH and, to a lesser extent, the Region have been working together on this project.

 

The project raised a number of issues which would have to be dealt with by the parties.  Some of these matters included land use and development, traffic impacts, urban design, the impact on Alexandra Park (a park located on part of the land included in the expansion) and the location of the cancer treatment centre, to name a few.  Various departments of the City became involved.  The project also required amendments to a City zoning by-law as well as an amendment to the City's Official Plan.  Thus, City council was kept apprised of the progress of the project.

 

To achieve these goals, many meetings were held in which these issues were discussed.  For example, meetings were held by the Planning and Development Department of the City (Records 9 and 12), between this Department and staff and consultants of the OGH (Records 26 and 28), and local councillors and representatives of the City and the OGH (Records 29 and 52).  At these meetings, the participants provided comments on the proposal.  In addition, City staff exchanged several memoranda stating their departments' positions on the redevelopment issues (Records 10, 12 and 48).

 

During this process, three public meetings were held to seek community feedback on the proposal.  The proposal was discussed in detail at a public City Council meeting.

 

Once the proposal was finalized, drafts were prepared of the proposed rezoning by-law and the by-law to amend the Official Plan (Records 89, 91 and 92).  Counsel for the OGH and City staff commented on the drafts (Records 86 and 87).  On February 21, 1994 at a public council meeting, the City passed a zoning by-law to assign appropriate land use designations to lands owned by the OGH.  It also passed a by-law to amend the City's Official Plan.  The rezoning of certain parkland to institutional is presently being appealed to the Ontario Municipal Board (the OMB) by area residents.

 

INVASION OF PRIVACY

 

Under section 2(1) of the Act, "personal information" is defined, in part, as follows:

 

(d)       the address, telephone number, fingerprints or blood type of the individual,

 

(e)        the personal opinions or views of the individual except if they relate to another individual,

 

 

 

(f)        correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

 

(g)        the views or opinions of another individual about the individual, and

 

 

(h)        the individual's name if it appears with other personal information relating to the individual or where disclosure of the name would reveal other personal information about the individual.

 

It is the position of the City that Records 4, 21, 23, 24, 26, 27, 28, 29, 34, 36, 38, 42, 51, 52, 53, 56, 73, 77, 82, 84, 93 and 120 all contain the personal views expressed by the individuals who attended the meetings described in these records.  In addition, the City maintains that Records 39, 95, 101, 103, 104, 113 and 128, which are notes made by City staff at some of these meetings, also constitute the "personal information" of these individuals as they contain the personal views or opinions of these individuals.

 

I do not accept the position of the City with regard to either group of records.  It is clear that the views and opinions expressed by City staff, the staff and consultants of the OGH and the representatives of the Region at these meetings, as recorded in the minutes or notes of the discussions, were provided by these individuals in their capacity as professionals or employees and in the course of executing their professional and/or employment responsibilities.  Accordingly, the information contained in these records does not constitute the "personal information" of these individuals for the purposes of the Act (Orders P-377 and P-427).

 

The City also maintains that Record 24 contains the personal information of a City councillor in that it consists of correspondence kept by the City that is implicitly or explicitly of a confidential nature.  I do not agree that this record contains the personal views of a council member and, therefore contains this individual's personal information.  While this record refers to an "off the record" discussion, the conversation was recorded on a form entitled "Contact with Councillors" on which City staff were to provide the Director of Planning and Development with a summary of any discussions with council members.  It was in his capacity as a council member that this individual approached the City employee.  It was because this individual was a council member that the contact was recorded on the form.  The contact was made and the views were expressed in this individual's capacity as a publicly elected official.  I find, therefore, that this record does not contain personal information (Order M-113).

 

The same analysis applies to that portion of Record 29 in which references are made to comments expressed by a councillor who was not in attendance at the meeting.

 

The information withheld from Record 30 consists of the name, address and telephone number of a member of the public who asked for certain information from the City.  I agree with the position of the City that this record contains the personal information of this individual.

 

Once it has been determined that a record contains personal information, section 14(1) of the Act prohibits the disclosure of this information except in certain circumstances.

 

Sections 14(2), (3) and (4) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of personal privacy.  Where one of the presumptions in section 14(3) applies to the personal information found in a record, the only way such a presumption against disclosure can be overcome is if the personal information falls under section 14(4) or where a finding is made that section 16 of the Act applies to the personal information.

 

If none of the presumptions in section 14(3) apply, the institution must consider the application of the factors listed in section 14(2), as well as all other circumstances that are relevant in the circumstances of the case.

 

The appellant has provided no representations to indicate why the disclosure of the personal information contained in Record 30 would not constitute an unjustified invasion of the personal privacy of the individual.  Accordingly, the mandatory exemption in section 14(1) applies and the information should not be disclosed.

 

Because I have found that none of the other records claimed by the City contain personal information, the mandatory exemption in section 14(1) cannot apply to them.

 

SOLICITOR-CLIENT PRIVILEGE

 

The City claims that section 12 applies to Records 4, 5, 15, 28, 53, 54, 57, 82, 84, 86, 87, 93, 95 and 113.  I will consider Records 86 and 87 under the "Draft By-Law" exemption.

 

Section 12 of the Act consists of two branches, which provide an institution with the discretion to refuse to disclose:

 

1.         a record that is subject to the common law solicitor-client privilege (Branch 1); and

 

2.         a record which was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation (Branch 2).

 

For a record to qualify for exemption under the first branch of solicitor-client privilege, the following four criteria must be satisfied:

 

1.         there must be a written or oral communication;

 

2.         the communication must be of a confidential nature;

 

3.         the communication must be between a client (or his agent) and a legal adviser; and

 

4.         the communication must be directly related to seeking, formulating or giving legal advice.

 

While the City indicates that it is relying primarily on the first branch of the exemption, it submits that "there are some documents, however, which quite clearly relate legal opinions and/or advice, and fall within the second branch".

 

Records 15, 54 and 57 in their entirety are subject to the common law solicitor-client privilege.  They are all confidential communications between City staff and their counsel which contain legal advice.

 

The contents of Record 5 do not relate in any way to the seeking, formulating or giving of legal advice; this document was written by a City Planner and Landscape Architect.  Nor has the City claimed that Branch 2 applies.  Therefore, Record 5 is not exempt pursuant to section 12.

 

The City indicates that the remaining records for which it claims the application of section 12, Records 4, 28, 53, 82, 84, 93, 95 and 113, are subject to solicitor-client privilege in that they are recorded statements of solicitors.

 

As is indicated in Appendix A, all these records consist of notes prepared by City staff of meetings attended by certain members of City staff, their counsel, OGH staff, OGH counsel and consultants.  In these circumstances, I find that the comments made by counsel for the City and OGH counsel at these meetings do not constitute confidential communications between counsel and their clients.

 

Accordingly, the second element of the four criteria required for the common law solicitor-client privilege to apply has not been satisfied.  Therefore, I need not consider the application of the  other three elements.  I find that Records 4, 28, 53, 82, 84, 93, 95 and 113 do not qualify for exemption pursuant to section 12 of the Act.

 

DRAFT BY-LAW

 

The City claims that section 6(1)(a) applies to Records 49, 51, 85, 86, 87, 89, 91, 92, 113, 114, 115, 120, 122 and 123.  This section of the Act states:

 

A head may refuse to disclose a record,

 

that contains a draft of a by-law or a draft of a private bill;

 

Records 51 (Pages 4-13), 85, 86, 87, 89, 91, 92, 115 and 122 all contain drafts of the City's rezoning and Official Plan amendment by-laws and/or schedules to the by-laws.  I find, therefore, that section 6(1)(a) of the Act applies to them.

 

Section 6(2)(a) contains an exception to the draft by-law exemption.  The exception states:

 

Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record if,

 

in the case of a record under clause (1)(a), the draft has been considered in a meeting open to the public;

 

As I have previously indicated, the by-laws to rezone the OGH's land and implement the Official Plan amendment were passed at a public council meeting on February 24, 1994.  In its representations, the City explains that, while this was a public process, these particular records constitute earlier drafts of the by-laws which were not considered in a meeting open to the public.  As I have been provided with no evidence to the contrary, I find that Records 51 (Pages 4-13), 85, 86, 87, 89, 91, 92, 115 and 122 are exempt under section 6(1)(a) of the Act.

 

Records 49, 51 (Pages 1-3), 113, 114, 120 and 123 do not contain drafts of the by-laws per se; rather they contain comments made by City staff or counsel to the OGH on the proposed by‑laws.

 

With respect to these records, the City's position is that if the City is not required to release a draft by-law then it is not required to release the comments made by staff on the by-law.  It maintains that to do so would indirectly disclose the contents of the by-law or some of its provisions.

 

The wording of the draft by-law exemption in section 6(1)(a) may be usefully contrasted with that of the "closed meeting" exemption in section 6(1)(b) which states:

 

A head may refuse to disclose a record,

 

that reveals the substance of deliberations of a meeting of a council, board, commission or other body or a committee of one of them if a statute authorizes holding that meeting in the absence of the public. [my emphasis]

 

Likewise, the analogous provision to section 6(1)(a) of the Act, section 12(1)(f) of the provincial Freedom of Information and Protection of Privacy Act, states:

 

 

 

A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including,

 

draft legislation or regulations. [my emphasis]

 

In both of these instances, the wording of the exemption, by the inclusion of the word "reveal", is broader than that in section 6(1)(a) of the Act.  In my view, the use of the term "reveal" means that the exemption in which it appears will apply to records from which accurate inferences can be drawn about the types of information described in these sections.  By contrast, the wording of section 6(1)(a) applies to records which actually contain a draft of a by-law.

 

In my view, section 1(a)(ii) of the Act is also a relevant factor in the interpretation of the section 6(1)(a) exemption.  That section sets out one of the major purposes of the Act and states that necessary exemptions from the right of access should be limited and specific.  Accordingly, I find that the wording of the draft by-law exemption is not broad enough to bear the meaning which the City would ascribe to it.  Rather, I am of the view that it only applies to records which actually contain the draft by-law.

 

Based on the foregoing analysis, I find that Records 49, 51 (Pages 1-3), 113, 114, 120 and 123 are not exempt under section 6(1)(a).

 

ECONOMIC AND OTHER INTERESTS

 

Of the remaining records, the City claims that Records 4, 5, 7, 9, 10, 12, 13, 14, 18, 19, 21, 22, 23, 24, 26, 27, 28, 29, 32, 33, 34, 36, 38, 39, 47, 48, 49, 52, 53, 55, 56, 58, 61, 64, 66, 73, 74, 75, 77, 82, 83, 84, 88, 90, 93, 94, 95, 97, 100, 101, 102, 103, 104, 107, 108, 109, 110, 113, 114, 116, 117, 119, 120, 123, 129, 133, 134 and 137 are exempt pursuant to section 11(e) of the Act.

 

For a record to qualify for exemption under section 11(e), each part of the following test must be established:

 

1.         the record must contain positions, plans, procedures, criteria or instructions; and

 

2.         the positions, plans, procedures, criteria or instructions must be intended to be applied to any negotiations; and

 

3.         the negotiations must be carried on currently, or will be carried on in the future; and

 

4.         the negotiations must be conducted by or on behalf of an institution.

 

[Order M-92]

 

The purpose of section 11(e) is to protect the economic interests of an institution, in this case, the City.  In addition, the timing of negotiations is key to the application of this exemption - it clearly applies to present or future negotiations, not those which have been completed.

 

The City's submissions on these points are very general in nature.  They state:

 

This section contemplates ongoing events.  The OGH expansion and/or renovation is an ongoing process, expected to occupy staff and professional for the next five to ten years.

 

The City does not clearly identify the party with whom its future negotiations will be conducted.  With respect to Record 66, it submits that:

 

It is the City's position that this portion of the document reveals staff positions, plans, procedures, criteria and/or instructions to be applied to the City's negotiations with the OGH with respect to its expansion request. [emphasis added]

 

The submissions continue:

 

The City also takes this position with respect to each of the other documents listed.

 

Based on these representations, it appears that the City views this exemption as applying to negotiations between it and the OGH.  As I have indicated, the records to which these negotiations relate reflect matters which have already been successfully completed; City council has passed the rezoning and Official Plan amendment by-laws.  It is true that there are certain matters which remain outstanding.  However, even assuming that the information contained in these records satisfies the first element of the section 11(e) test, the submissions of the City do not link any particular plan with future negotiations, as opposed to those which have already been concluded.

 

Moreover, if, as the City appears to suggest in its submissions with respect to Record 66 and the others for which this exemption has been claimed, it is concerned that its economic interests will be affected by the disclosure of its positions to be applied in negotiations with the OGH, I note that several of the records contain information concerning meetings at which OGH staff, consultants and/or counsel were present.  Certain of the records consist of correspondence received by the City from the OGH.  In these circumstances, I am of the view that the disclosure of this information could not have an adverse impact on the City's negotiating position with the OGH.

 

 

In summary, I find that the City has not provided me with sufficient evidence to satisfy the four elements of the economic interests exemption with respect to the records for which it has been claimed.

 

ADVICE TO GOVERNMENT

 

The City claims that the remaining records, namely Records 4, 5, 7, 9, 10, 12, 13, 14, 18, 19, 21, 22, 23, 24, 26, 27, 28, 32, 33, 34, 36, 38, 39, 47, 48, 49, 52, 53, 55, 56, 58, 59, 61, 64, 73, 74, 75, 77, 82, 83, 84, 88, 90, 93, 94, 95, 97, 100, 101, 102, 103, 104, 107, 108, 109, 110, 114, 115, 116, 117, 119, 120, 123, 129, 133, 134 and 137 are exempt from disclosure pursuant to section 7(1) of the Act.

 

This section states that:

 

A head may refuse to disclose a record if the disclosure would reveal advice or recommendations of an officer or employee of an institution or a consultant retained by an institution.

 

It has been established in a number of previous orders that advice and recommendations for the purpose of section 7(1) must contain more than mere information.  To qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process.

 

The City's position is that it is vital to the ongoing nature of the negotiations and the integrity of the public process involving the OGH redevelopment that the advice and/or recommendations of staff and consultants remain confidential until these views are made known at public meetings or hearings.

 

I have carefully reviewed all the records which the City claims contain advice and recommendations.  Many of the statements recorded in these records are those of the OGH staff and its consultants who are not the individuals whose advice and recommendations the section 7(1) exemption is designed to protect.  In particular, Records 120A, B, C and D consist of memoranda and correspondence to OGH staff from its consultants.  Record 120E is an internal OGH memorandum.

 

As far as those records containing statements of the City staff are concerned, they generally contain comments, questions, remarks and exchanges of ideas regarding the OGH redevelopment.  In my view, such information does not suggest a course of action which can be accepted or rejected by its recipient.  Rather, it represents a collective effort by numerous individuals to achieve a common goal.  With a few exceptions noted below, the information contained in these records is not organized in such a manner as to constitute "advice" or "recommendations".  The comments are not developed into any action plan or formalized manner of proceeding.

 

Record 116 contains the notes taken by a City staff member of a public meeting of the City's Planning and Development Department.  The City submits that these are not "official" notes and contain advice and recommendations recorded at that time.  In my view, these comments are of the more general nature I have described above.  In addition, the notes indicate that the appellant was present at this meeting.

 

There are portions of Records 10, 12, 13, 14A, 14B, 48, 49, 64, 74, 75 and 97 that do contain "advice" or "recommendations" within the meaning of section 7(1) of the Act.  I have identified these portions of the records on the highlighted copies provided to the City's Freedom of Information and Privacy Co-ordinator with a copy of this order.

 

ORDER:

 

1.         I uphold the decision of the City not to disclose Records 15, 30, 51 (Pages 4-13), 54, 57, 85, 86, 87, 89, 91, 92, 115 and 122 and the portions of Records 10, 12, 13, 14A, 14B, 48, 49, 64, 74, 75 and 97 which are highlighted on the copy of these records which is being sent to the Freedom of Information and Privacy Co-ordinator of the City with a copy of this order.

 

2.         I order the City to disclose to the appellant the remaining records in their entirety within fifteen (15) days of the date of this order.

 

3.         In order to verify compliance with the provisions of this order, I reserve the right to require the City to provide me with a copy of the records which are disclosed to the appellant pursuant to Provision 2.

 

 

 

 

 

 

 

 

 

 

Original signed by:                                                                      September 22, 1994            

Anita Fineberg

Inquiry Officer

 

 

                                                                               APPENDIX "A"

 

                                                                  INDEX OF RECORDS AT ISSUE