I order the Board to re-exercise its discretion in accordance with the discussion of that issue above and to advise the appellant and this office of the result of this re-exercise of discretion, in writing.  If the Board continues to withhold all or part of the remaining information, I also order it to provide the appellant with an explanation of the basis for exercising its discretion to do so and to provide a copy of that explanation to me.

The Board is required to send the results of its re-exercise, and its explanation to the appellant, with the copy to this office, no later than January 16, 2007.  If the appellant wishes to respond to the Board’s re-exercise of discretion, and/or its explanation for exercising its discretion to withhold information, the appellant must do so within 21 days of the date of the Board’s correspondence by providing me with written representations.

In compliance with the provisions of Interim Order MO-2118-I, the Board has provided representations to me, dated January 15, 2007.  I did not receive representations from the appellant.

DISCUSSION:

EXERCISE OF DISCRETION

Section 38(b) of the Act requires the Board to properly exercise its discretion in deciding whether to provide the appellant with access to any or all of the remaining portions of the records.

For the most part, the Board’s representations simply paraphrase sections of my analysis and findings on section 38(b) in Interim Order MO-2118-I.  The representations themselves are sparse and because they contain little in the way of explanation, I question whether the appellant could have gained any further understanding of, or insight into, the Board’s re-exercise of discretion by reading the letter.

Having said that, I note that the Board acknowledged in its representations that it had the discretion to sever the records and disclose portions of each letter even if the requirements of section 38(b) of the Act were met.  The Board also stated that it had considered the findings and factors discussed in Interim Order MO-2118-I in re-exercising its discretion regarding the release of additional portions of the records.  The Board does not expressly state whether or not additional portions of the records were disclosed under the re-exercise of discretion, but it would appear to be implicit that no further portions were released to the appellant as a consequence of the re-exercise.

I had invited the appellant to provide me with representations on the Board’s re-exercise of discretion within 21 days of the date of the Board’s correspondence, but did not receive submissions from her.

In my view, it would have been preferable had the Board provided a more expansive – and helpful - explanation in its January 15, 2007 letter to the appellant since, as I have previously observed, this would have better assisted the appellant in understanding the Board’s rationale for exercising its discretion against disclosure of the portions of the records remaining at issue.

However, I have considered the other circumstances of this appeal in addition to the Board’s letter, particularly the information the appellant has already received through the operation of Interim Order MO-2118-I.  With the appellant providing no responding representations, and in consideration of the sum of the information available to me, I am satisfied that there was nothing improper in the manner in which the Board re-exercised its discretion.

ORDER:

I uphold the decision of the Board.

Original signed by:      February 8, 2007   

Daphne Loukidelis