ORDER P-1049

 

Appeal P‑9500097

 

Ministry of Consumer and Commercial Relations

NATURE OF THE APPEAL:

 

The Ministry of Consumer and Commercial Relations (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to all the requester’s personal information including information related to the Motor Vehicle Dealers Act (the MVDA) and the Real Estate and Business Brokers Act (the REBBA).  The Ministry identified numerous records and granted partial access.  The requester appealed the decision to deny access to the remaining records.

 

The records relate to investigations conducted by the Ministry in connection with the appellant’s applications under the MVDA and REBBA and in response to complaints filed against the appellant and/or his company.  The records that remain at issue consist of computer printouts, memoranda, notes and correspondence and are listed in Appendix “A” to this order.

 

The Ministry relies on the following exemptions to deny access to the records:

 

•           advice or recommendations - section 13(1)

•           law enforcement - sections 14(1) and 14(2)

•           solicitor-client privilege - section 19

•           discretion to refuse requester’s own information - section 49(a)

•           invasion of privacy - sections 21(1) and 49(b)

 

A Notice of Inquiry was provided to the appellant, the Ministry and various individuals identified in the records (the affected persons).  Representations were received from the Ministry only.

 

DISCUSSION:

 

Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual.

 

I have reviewed the records at issue to determine if they contain personal information, and if so, to whom the personal information relates.  The records relate to investigations of the appellant under the REBBA and to his application for a licence under the MVDA.  On this basis, I find that all the records contain the personal information of the appellant. 

 

In addition, many of the records contain information that also relates to other identifiable individuals, namely the complainants, the investigator and other individuals involved in the investigation.  Some of this information pertains to these individuals in their professional capacity and this information does not qualify as their personal information. The personal information of the complainants and other individuals is found in Records 33, 35, 36, 37, 38, 39, 40, 41, 61, 69, 70, 71, 72, 73, 74, 75, 77, 79, 80, 81, 82, 84, 87, 93, 99 and 101.

 

Appendix “A” to this order contains some references to individuals by name.  Where this occurs, the references appear in the context of the individuals’ professional or employment capacity.

 

DISCRETION TO REFUSE REQUESTER’S OWN INFORMATION

 

I have found that all the records contain the appellant’s personal information.  Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body.  Section 49 provides a number of exceptions to this general right of access.

 

Under section 49(a) of the Act, the Ministry has the right to deny access to an individual’s own personal information in instances where certain exemptions would otherwise apply to that information.  Section 49(a) states as follows:

 

A head may refuse to disclose to the individual to whom the information relates personal information,

 

where section 12, 13, 14, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information.  (emphasis added)

 

In order to determine whether the exemption provided by section 49(a) applies in this case, I will begin by considering the Ministry’s claim that particular records qualify for exemption under sections 13, 14 and 19, all of which are referred to in section 49(a). 

 

The Ministry has indicated that it is no longer relying on section 14(1) for Records 32, 34 and 34A.  I note that Record 41 is an exact duplicate of Record 32 and my findings on Record 32 will apply equally to Record 41.  As no other discretionary exemption has been claimed for Record 32 and no mandatory exemption applies, I order Record 32 to be disclosed to the appellant.

 

The Ministry has not made any submissions on the application of section 14(1) to Record 83 and the application of section 14(2)(a) to Record 92.  I have previously found that Record 83 contains only the personal information of the appellant.  Record 92 is an action memo containing the name and telephone number of an individual.  As indicated above, the information in the record relates to the individual’s professional or employment duties and therefore, does not constitute his/her personal information.  No other discretionary exemptions have been claimed by the Ministry in respect of these records.  No mandatory exemptions apply and therefore, Records 83 and 92 should be disclosed to the appellant.

 

ADVICE OR RECOMMENDATIONS

 

The Ministry claims that the Records 33, 34, 34A and 54 qualify for exemption under section 13(1) of the Act which reads:

 

A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.

 

It has been established in a number of previous orders that advice or recommendations for the purpose of section 13(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 the recipient during the deliberative process. In addition, the information must relate to the giving of advice as opposed to seeking advice and finally advice to parties outside of government does not qualify for exemption under section 13(1) [Orders P-223, P-848 and P-872].

 

The Ministry has provided submissions on the application of section 13(1) to the records.  I have reviewed the records and the representations of the Ministry.  In my view, only the fourth paragraph in Record 34 qualifies as “advice” or “recommendations” for the purposes of section 13(1) of the Act. 

 

The information in Records 33, 34A, 54 and the remaining information in Record 34 contains background information of a factual nature and actions taken in response to the complaints received. In my view, this information does not contain any suggested course of action which will ultimately be accepted or rejected by its recipient during the deliberative process.  I find that Records 33, 34A, 54 and the remaining portions of Record 34 do not qualify for exemption under section 13(1).  I have highlighted the portion of Record 34 that qualifies for exemption on the copy of the record which I will provide to the Freedom of Information and Privacy Co-ordinator with this order.  I find that the highlighted portion of Record 34 qualifies for exemption under section 13(1) and is therefore exempt from disclosure under section 49(a).

 

The Ministry has claimed no other discretionary exemptions for Records 34A and 54 and the remaining information in Record 34; no mandatory exemptions apply to these records and therefore, Records 34A, 54 and the remaining portions of Record 34 should be disclosed to the appellant. 

 

I have previously found that Record 33 contains both the personal information of the appellant together with the personal information of individuals other than the appellant and I will therefore include Record 33 in my analysis of section 49(b).

 

LAW ENFORCEMENT

 

The Ministry has denied access to Records 35, 57, 59, 61, 69, 80, 86, 90 and 98 pursuant to section 14(1)(b) of the Act and has claimed that section 14(1)(d) exempts Records 35, 36, 37, 38, 39, 40, 56, 60, 65, 66, 75 and 78.  The Ministry has also claimed that section 14(2)(a) applies to exempt Records 55, 62, 74, 87, 88, 89 and 91 from disclosure.

 

Sections 14(1)(b) and (d) state:

 

A head may refuse to disclose a record where the disclosure could reasonably be expected to,

 

(b)        interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;

 

(d)       disclose the identity of a confidential source of information in respect of a law enforcement matter, or disclose information furnished only by the confidential source.

For a record to qualify for exemption under section 14(2)(a) of the Act, the institution must satisfy each part of the following three-part test:

 

1.         the record must be a report; and

 

2.         the record must have been prepared in the course of law enforcement, inspections or investigations; and

 

3.         the report must have been prepared by an agency which has the function of enforcing and regulating compliance with a law.

 

[Order 200]

 

In order for a record to qualify for exemption under any of sections 14(1)(b), 14(1)(d) or 14(2)(a), the record must relate to a “law enforcement” matter which is defined in section 2(1) of the Act as follows:

 

“law enforcement” means,

 

(a)        policing,

 

(b)        investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and

 

(c)        the conduct of proceedings referred to in clause (b).

 

In Order P-701, Inquiry Officer Anita Fineberg determined that the duties and responsibilities of the Registrar of Real Estate and Business Brokers include the conduct of investigations that could lead to proceedings before a court or a tribunal in which penalties and sanctions could be imposed and that investigations under the REBBA satisfy the definition of “law enforcement” for the purposes of sections 14(1)(d) and 14(2)(a).  Inquiry Officer Fineberg also concluded that, for the purposes of section 14(2)(a), the Ministry is an agency which has the function of enforcing and regulating compliance with a law, i.e. the REBBA.  I agree with both these conclusions and adopt them for the purposes of this appeal.  In my view, these findings apply equally to the definition of “law enforcement” in section 14(1)(b) above and I adopt them for this purpose as well.

 

I will first consider the application of section 14(1)(b) to Records 35, 57, 59, 61, 69, 80, 86, 90 and 98.  The purpose of the section 14(1)(b) exemption is to provide the institution with the discretion to preclude access to records in circumstances where the disclosure would interfere with an ongoing law enforcement matter or investigation.

 

Records 57, 59, 61, 69 and 80 are notes of an investigator of the Ministry.  Records 86, 90 and 98 are inspection assignments of the Ministry which request particular types of inspections of real estate trust accounts.  The Ministry indicates that the records relate to investigations under the REBBA and also contain information about charges already laid.  The Ministry states that the potential for  criminal charges and/or charges under the REBBA still exists.  The Ministry states that the final status of the criminal charges is unknown and that a specified criminal investigation has yet to be completed.  I accept the Ministry’s position that the records relate to a law enforcement matter.  I am also satisfied that disclosure of the records could reasonably be expected to interfere with an ongoing law enforcement matter.  I find that Records 57, 59, 61, 69, 80, 86, 90 and 98 qualify for exemption under section 14(1)(b) of the Act.

 

The Ministry has made no submissions on the application of section 14(1)(b) to Record 35 but has claimed that this record is also exempt under section 14(1)(d) of the Act.  I will therefore consider it under section 14(1)(d).

 

The Ministry claims that Records 35, 36, 37, 38, 39, 40, 56, 60, 65, 66, 75 and 78 are exempt from disclosure under section 14(1)(d).  The Ministry states that Records 35, 36, 37, 38, 39, 40, 65, 66, 75 and 78 contain details of complaints received by the Registrar of the REBBA and indicates that the disclosure of these records would disclose the identity of a confidential source of information with respect to a law enforcement matter.  In addition, the Ministry points out that Records 56 and 60 are computer printouts provided to the Ministry by an external Ministry source under a confidential information sharing agreement.  Based on the evidence before me, I am satisfied that disclosure of the records could reasonably be expected to disclose the identity of a confidential source of information in respect of a law enforcement matter or disclose information furnished only by the confidential source and the records qualify for exemption under section 14(1)(d).

 

The Ministry has claimed that section 14(2)(a) applies to Records 55, 62, 74, 87, 88, 89 and 91.  In order to qualify for exemption under this section, the Ministry must satisfy each part of the three-part test set out above.  I have previously accepted the Ministry as an agency which has the function of enforcing and regulating compliance with a law (REBBA).  I have reviewed the records and I am satisfied that they were prepared in the course of a law enforcement investigation and/or inspection.  Therefore, the second and third parts of the test have been met.  I will now consider whether each record qualifies as a “report” for the purposes of section 14(2)(a).

 

The word “report” is not defined in the Act.  However, it is my view that in order to satisfy the first part of the test i.e. to be a report, a record must consist of a formal statement or account of the result of the collation and consideration of information.  Generally speaking, results would not include mere observations or recordings of fact. [Order 200] 

 

I have considered the records in conjunction with the representations of the Ministry and I find that Records 55, 62, 74, 87, 89 and 91 qualify as “reports” for the purpose of section 14(2)(a) of the Act.  Therefore, these records have met all three parts of the test and qualify for exemption under section 14(2)(a).  I have considered the exception listed in section 14(4) and in my view, it has no application to the information in these records.

 

Record 88 is a covering memo which list a number of attachments.  In my view, this is not the formal statement or account of the result of the collation and consideration of information that is intended to be exempt under this section.  On that basis, I find that Record 88 is not a report, does not qualify for exemption and should be disclosed to the appellant.

In summary, I have found that section 14(1)(b) applies to Records 57, 59, 61, 69, 80, 86, 90 and 98, section 14(1)(d) applies to Records 35, 36, 37, 38, 39, 40, 56, 60, 65, 66, 75 and 78 and section 14(2)(a) applies to Records 55, 62, 74, 87, 89 and 91 and therefore, I find that these records are exempt under section 49(a).  I have found that Record 88 does not meet the requirements for exemption and should therefore be disclosed to the appellant.

 

SOLICITOR-CLIENT PRIVILEGE

 

The Ministry claims that Records 37, 46 and 47 are exempt under solicitor-client privilege as provided by section 19 of the Act.  I have already found that Record 37 is exempt from disclosure under section 14(1)(d); I will therefore only consider the application of section 19 to Records 46 and 47.

 

Section 19 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 Crown counsel for use in giving legal advice or in contemplation of or for use in litigation (Branch 2).

 

The Ministry claims that the solicitor-client privilege (Branch 1) applies as the records are communications of a written confidential nature between a client (the Motor Vehicle Dealers Act Registrar) and a legal advisor directly related to the seeking of, formulating or the giving of legal advice.  I have reviewed the records and I accept the Ministry’s submissions.  I am satisfied that the records consist of written communications of a confidential nature between a client and a legal advisor directly related to the seeking of, formulating or the giving of legal advice and therefore qualify for exemption under Branch 1 of section 19.  On this basis, the records are exempt under section 49(a) of the Act.

 

INVASION OF PRIVACY

 

Another exception to an individual’s right of access to his/her own personal information is found in section 49(b) of the Act.  I will now consider the application of section 49(b) to the personal information in Records 33, 70, 71, 72, 73, 77, 79, 81, 82, 84, 93, 99 and 101.

 

Under section 49(b), where a record contains the personal information of both the appellant and other individuals and the institution determines that the disclosure of the information would constitute an unjustified invasion of another individual’s personal privacy, the institution has the discretion to deny the requester access to that information.

 

Sections 21(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of personal information would constitute an unjustified invasion of personal privacy.  Where one of the presumptions found in section 21(3) applies to the personal information found in a record, the only way in which such a presumption against disclosure can be overcome is where the personal information falls under section 21(4) or where a finding is made that section 23 of the Act applies to the personal information.

 

If none of the presumptions contained in section 21(3) apply, the institution must consider the application of the factors listed in section 21(2) of the Act, as well as all other considerations that are relevant in the circumstances of the case.

 

In its representations, the Ministry states that the personal information in portions of the records relate to an investigation into a possible violation of law (section 21(3)(b)) and/or describe an individual’s finances or financial history or activities (section 21(3)(f)).  In addition, the Ministry states that Record 99 contains the home address, telephone number, birth date and sex of an individual which, in the circumstances of this case, is highly sensitive and therefore, section 21(2)(f) also applies.

 

I find that the personal information in the records was compiled and is identifiable as part of the Ministry’s investigation into a possible violation of the REBBA by the appellant.  Certain information also relates to financial transactions involving individuals other than the appellant.  Therefore, I find that disclosure of the personal information in the records would constitute a presumed unjustified invasion of the personal privacy of other individuals under sections 21(3)(b) and (f).

 

None of this information falls within the ambit of section 21(4).  Nor has the appellant raised the application of section 23 of the Act.  Accordingly, Records 33, 70, 71, 72, 73, 77, 79, 81, 82, 84, 93, 99 and 101 are exempt from disclosure under section 49(b) of the Act.

 

ORDER:

 

1.         I uphold the Ministry’s decision to deny access to Records 33, 35, 36, 37, 38, 39, 40, 46, 47, 55, 56, 57, 59, 60, 61, 62, 65, 66, 69, 70, 71, 72, 73, 74, 75, 77, 78, 79, 80, 81, 82, 84, 86, 87, 89, 90, 91, 93, 98, 99 and 101 in their entirety and to the highlighted portion of Record 34 as shown on the copy of the record provided to the Freedom of Information and Privacy Co-ordinator with this order.

 

2.         I order the Ministry to disclose to the appellant Records 32, 34A, 54, 83, 88 and 92 in their entirety together with the non-highlighted portions of Record 34 within thirty-five (35) days after the date of this order but not earlier than the thirtieth (30th) day after the date of this order.

 

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

 

 

 

 

 

 

 

 

 

Original signed by:                                                                         November 14, 1995                    

Mumtaz Jiwan

Inquiry Officer

APPENDIX A

 

INDEX OF RECORDS AT ISSUE

Appeal Number P-9500097