Access to Information Orders

 

 

Appeal PA‑990017‑1

 

Ministry of the Attorney General

 

NATURE OF THE APPEAL:

 

The appellant made a request under the Freedom of Information and Protection of Privacy Act (the Act) to the Ministry of the Attorney General (the Ministry).  The request was for access to the following audits:

 

1.         Criminal Injuries Compensation Board

2.         Ontario Court at Brantford

3.         Ontario Court (General Division) at Toronto

4.         Review of P-Card Transactions (Court Services Division)

5.         Ontario Court (Provincial Division) at London

 

Parts 2-5 of the request were dealt with in Order P-1696.

 

On behalf of the Criminal Injuries Compensation Board (the Board), the Ministry denied access to the records responsive to parts 1 of the request on the basis that the records are excluded from the scope of the Act under section 65(6)3 of the Act.

 

The appellant appealed the Board’s decision, and argued that because disclosure of the records is in the public interest, section 23 of the Act applies.

 

I sent a Notice of Inquiry to the Board (in care of the Ministry) and the appellant.  Representations were received from both parties.  Subsequent to the issuance of Order P-1696, I requested supplemental representations from the Board on the question of whether the Board has a legal interest in any meetings, consultations, discussions or communications about labour relations or employment-related matters for which the records were collected, prepared, maintained or used by or on behalf of the Board.  Additional representations were received from the Board.

 

 

DISCUSSION:

 

JURISDICTION

 

The interpretation of sections 65(6) and (7) of the Act is a preliminary issue which goes to the Commissioner’s jurisdiction to continue an inquiry.  These sections read as follows:

 

(6)        Subject to subsection (7), 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:

 

1.         Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.

 

 

 

2.         Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding.

 

3.         Meetings, consultations, discussions or communications about labour relations or employment‑related matters in which the institution has an interest.

 

(7)        This Act applies to the following records:

 

1.         An agreement between an institution and a trade union.

 

2.         An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment‑related matters.

 

3.         An agreement between an institution and one or more employees resulting from negotiations about employment‑ related matters between the institution and the employee or employees.

 

4.         An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment.

 

Section 65(6) is record‑specific and fact‑specific.  If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in section 65(7) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner’s jurisdiction.

 

The Board relies on section 65(6)3.

 

Section 65(6)3

 

In order for each record to fall within the scope of paragraph 3 of section 65(6), the Board must establish that:

 

1.         it was collected, prepared, maintained or used by the Board or on its behalf;  and

 

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 Board has an interest.

 

[Order P‑1242]

 

Requirement 1

 

The Board explains that the record  was prepared by the Audit and Quality Assurance Branch of the Ministry.  The audit resulted from a pilot project initiated by the Board to determine the most efficient method to obtain investigative services.  During the review, unexplained discrepancies were discovered between actual and reported investigations completed by one investigator.  As a result, the individual was suspended with pay pending the completion of the Audit.  The individual subsequently resigned his position.

 

In my view, this record was clearly prepared on behalf of the Board and used by the Board, and I find that the first requirement of section 65(6)3 has been established.

 

Requirement 2

 

The Board indicates that the records were the method of communicating the results of the investigation and the recommendations flowing therefrom to senior staff at the Board and officials within the Ministry.

 

On the basis of the information before me, I am satisfied that the record was used in communications, thereby satisfying the second requirement of section 65(6)3.

 

Requirement 3

 

The Board submits that the record is about “employment-related matters” in which the Board “has an interest”.

 

The Board indicates that the audit related to possible fraud on the part of one or more investigators, who were all employees of the Board.  It submits that the investigation of inappropriate, unacceptable, improper or illegal conduct on the job is an employment-related matter.   I am satisfied that, in the circumstances of this appeal,  the communications in relation to which this record was prepared or used were about employment-related matters.

 

 

 

Previous orders have held that an interest is more than mere curiosity or concern.  An “interest” for the purposes of section 65(6)3 must be a legal interest in the sense that the matter in which the Board has an interest must have the capacity to affect the legal rights or obligations of the Board (Orders P‑1242 and M‑1147).

 

Several recent orders of this Office have considered the application of section 65(6)3 (and its municipal equivalent in section 52(3)3) in circumstances where there is no reasonable prospect of the institution’s “legal interest” in the matter being engaged (Orders P‑1575, P‑1586, M‑1128, P‑1618 and M‑1161).  The conclusion of this line of orders has essentially been that an institution must establish an interest that has the capacity to affect its legal rights or obligations, and that there must be a reasonable prospect that this interest will be engaged.  The passage of time, inactivity by the parties, loss of forum or conclusion of a matter have all been considered in arriving at a determination of whether an institution has a “legal interest” in the records.

 

A review of the record reveals that the audit resulted in an employee tendering his resignation, over two years ago.  The Board submits that it has the following legal obligations:

 

(a)        an obligation as an employer at common law to ensure that its employees do not engage in any illegal or criminal activity and to investigate any such allegations and take appropriate measures to correct any problems which are identified;

 

(b)        an obligation under the Financial Administration Act to ensure that funds allocated from the Consolidated Revenue Fund are properly expended and to ensure employees do not appropriate funds for their own use or their own personal gain;

 

(c)        an obligation to investigate and determine whether an applicant under the Compensation for Victims of Crime Act is properly entitled to compensation.

 

The Board submits that the following legal rights of the Board are engaged with respect to the record in question and with respect to investigations of employment practices and illegal activities of their employees:

 

(a)        the employee may take legal action (action for breach of contract or tort which would subsume any action for wrongful dismissal or employer wrongdoing) as a result of the outcome of the audit;

 

(b)        the Board may encounter legal proceedings for improper disclosure of the employee’s confidential employment record/history;

 

(c)        The Board must set clear standards and employment procedures to protect its ability to defend itself in further legal proceedings.

 

 

At this point, the only issue is whether the records are subject to the Act, and a finding that they are does not mean that the records would be disclosed automatically.  Further, having reviewed the record and based on the other material before me, there are no apparent grounds for an action for breach of contract, wrongful dismissal or employer wrongdoing stemming from the audits.

 

The Ministry refers to the possibility of some legal action being taken as a result of the audit or disclosure of the audit, and relies on the due performance of its ongoing responsibilities to establish that its legal interests are engaged.  In my view, the mere possibility of future legal action, which may be said to arise out of many kinds of audit or regulatory activities of government, is insufficient to engage a reasonable anticipation of such action actually occurring or, therefore, to engage an active legal interest.  Further, the due performance of supervisory activities in setting clear standards and procedures, even with a view to avoiding exposure in possible future legal proceedings, is also insufficient to engage an active legal interest.  In my view, unless there is something that arises to give reality to the prospect or anticipation of such action, government’s “interest” in the record relates to the normal course of its affairs, and the requisite legal interest is not established.

 

The only relevant evidence before me in this appeal establishes that there is no reasonable prospect that the institution’s legal interest will be engaged.  Accordingly, I find that there is no ongoing dispute or other employment‑related matter involving the Board that has the capacity to affect the Board’s legal rights or obligations, and the Board has failed to establish a “legal interest” in the employment‑related matters reflected in the records (see also Order M‑1164).

 

Therefore, the third requirement for section 65(6)3 has not been established, and I find that the records fall within the jurisdiction of the Act.

 

ORDER:

 

 

1.         I order the Board to issue a decision letter to the appellant in accordance with the provisions of sections 26, 27 and 28 of the Act, regarding access to the requested records, treating the date of this order as the date of the request.

 

2.         I order the Board to provide me with a copy of the correspondence referred to in Provision 1 by sending a copy to me when it sends this correspondence to the appellant.

 

 

 

Original signed by:                                                                         September 27, 1999                   

Holly Big Canoe

Adjudicator