ORDER MO-3536

Appeal MA16-99

Town of Oakville

December 6, 2017

Summary: The issues in this appeal are whether records relating to collective bargaining discussions and other issues are either excluded from the scope of the Act under section 52(3)3 (labour relations) or exempt from disclosure under the mandatory exemption in section 14(1) (personal privacy). In this order, the adjudicator upholds the town’s decision, finding that some of the records are not responsive to the request and that others are excluded from the scope of the Act under section 52(3)3. She further finds that portions of other records contain personal information, which is exempt from disclosure under the personal privacy exemption in section 14(1), and that the public interest override in section 16 does not apply.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 2 (definition of personal information), 14(1), 16, 17 and 52(3)3.

OVERVIEW:

[1]  This order disposes of the issues raised as a result of an appeal of an access decision made by the Town of Oakville (the town) under the Municipal Freedom of Information and Protection of Privacy Act (the Act). The request was for the following information:

• The 2006, 2010 and 2014 election related documents filed by, or on behalf of a named Mayor, including sworn financial statements, auditors’ reports, election funding sources and complete lists of financial contributors and contributions in goods and services and any attachments as required under applicable law;
• Any discussions, correspondence, notes, opinions, requests, emails, directions or statements between a named Mayor and a named individual that relate to any aspect of the successive collective agreements between the town and the Oakville Professional Firefighters Association from a specified date to the date of the request;
• Any discussions, correspondence, notes, opinions, requests, emails, directions or statements between the above referenced two individuals not included above; and
• The early retirement incentive as included in any of the collective agreements between the town and the Oakville Professional Firefighters Association from a specified date to the date of the request.

[2]  In response to the request, the town located responsive records and granted access to some of them. The town denied access to other records, claiming the application of sections 4(1) (custody or control) and 52(3)3 (employment or labour relations) of the Act .

[3]  The requester, now the appellant, appealed the town’s decision to this office.

[4]  During the mediation of the appeal, the town advised the mediator that it was also relying on the mandatory exemption in section 14(1) (personal privacy) of the Act  to withhold some of the responsive records. Also during mediation, the appellant raised the possible application of the public interest override in section 16. Consequently, sections 14(1) and 16 were added as issues in the appeal.

[5]  The appeal then moved to the adjudication stage of the appeals process, where an adjudicator conducts an inquiry. I sought and received representations from the town and the appellant, which were shared in accordance with this office’s Practice Direction 7. I also provided the individual named in the request (the affected party) with the opportunity to provide representations. The affected party did not provide representations.

[6]  In its representations, the town advised that upon closer examination of the records:

• that it was no longer claiming that the records are not in its custody or control;
• that some of the records are not responsive to the request;
• the records for which it claims section 14(1) can be disclosed, in part, to the appellant. These records are D1, D2, D6, D8, D9, D10, D11, D15, D20, D24, D25, D26, D27, D28, D29, D31, D37, D42, D45, D46, D47, D48, D49, D50, D54, D55, D56, D57, D58, D59, D60, D61, D62, D63 and D89;
• that records D40, D41, D43, D86 and D87 can be disclosed, in full to the appellant;
• that the records responsive to the first bullet point of the request have already been disclosed to the appellant; and
• that the records responsive to the fourth bullet point of the request can be disclosed to the appellant.

[7]  As a result, the responsiveness of the records was added as an issue in the appeal.

[8]  For the reasons that follow, I uphold the town’s decision. I find that some of the records are not responsive to the request and that others are excluded from the scope of the Act , as section 52(3)3 applies to them. I also find that portions of other records are exempt from disclosure under the personal privacy exemption in section 14(1). Lastly, I find that the public interest override in section 16 does not apply.

[9]  As the town has indicated that certain records can be disclosed to the appellant either in whole or in part, as set out in the bullet points above, but it is not clear whether these records have actually been disclosed to date, I will list these records in the order provisions.

RECORDS:

[10]  The records consist of emails, some with attachments, numbered D1 to D101.

ISSUES:

1. What records are responsive to the request?
2. Does section 52(3)3 exclude the records from the Act ?
3. Do the records contain personal information as defined in section 2(1) and, if so, to whom does it relate?
4. Does the mandatory exemption in section 14(1) apply to the information at issue?
5. Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the section 14(1) exemption?

DISCUSSION:

Issue A.   What records are responsive to the request?

[11]  Section 17 of the Act  imposes certain obligations on requesters and institutions when submitting and responding to requests for access to records. This section states, in part:

(1)  A person seeking access to a record shall,

(a)  make a request in writing to the institution that the person believes has custody or control of the record;

(b)  provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record;

. . .

(2)  If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

[12]  Institutions should adopt a liberal interpretation of a request, in order to best serve the purpose and spirit of the Act . Generally, ambiguity in the request should be resolved in the requester’s favour. [1]

[13]  To be considered responsive to the request, records must reasonably relate to the request. [2]

[14]  The town submits that some of the records are not responsive to the appellant’s request, because they consist of records that are not communications between the two individuals named in the request.

[15]  The appellant submits that the request is clearly worded, and that the standard to be used in deciding whether the records are relevant or not is an objective standard and not a subjective standard to be defined ad hoc by the Town of Oakville as it suits its current political or municipal purposes. The appellant goes on to state:

Clearly item (c) of the request original [date] records request is problematic for the Town of Oakville and no doubt to the Mayor, in that disclosable records may reveal subject matters they wish to remain hidden. However, that is not a valid basis to deny the records sought, or to limit the effective scope of responsive records to this original request.

[16]  The town is claiming that records D17, D18, D23, D32, D34, D36, D44, D70, D71, D72, D73, D74, D80, D81, D82, D83, D84, D85, D90, D92, D94, D96, D97, D98, D99, D100 and D101 are not responsive to the appellant’s request.

[17]  For ease of reference, the relevant portions of the appellant’s request are as follows:

• Any discussions, correspondence, notes, opinions, requests, emails, directions or statements between a named Mayor and a named individual that relate to any aspect of the successive collective agreements between the town and the Oakville Professional Firefighters Association from a specified date to the date of the request;
• Any discussions, correspondence, notes, opinions, requests, emails, directions or statements between the above referenced two individuals not included above; and
• The early retirement incentive as included in any of the collective agreements between the town and the Oakville Professional Firefighters Association from a specified date to the date of the request.

[18]  I have reviewed the records and I find that most of the records that the town identified as being not responsive to the request are, in fact, not responsive to the request. First, I note that none of the records that the town identified as being not responsive to the request relate to the above-referenced third bullet point. Concerning bullet points one and two, it is clear that the appellant is seeking records of communications between the Mayor and a named individual. The records that are not responsive to this request, I find, consist of communications between the Mayor and other individuals or the named individual and other individuals. In other words, they are communications that are not between the Mayor and the named individual and, consequently, are not reasonably related to the request.

[19]  In addition, although the town did not claim that record D31 is not responsive to the request, I find that it is, in fact, not responsive to the request. This record consists of an email from an individual to the Mayor, in which the individual copied several other people, including the named individual. However, as the communication is between this other individual and the Mayor, I find that it does not reasonably relate to the request and is, therefore, not responsive to the request.

[20]  Conversely, I find that records D17, D18 and D23 are responsive to the appellant’s request. In each of these records, the named individual has included the Mayor in communications with other individuals, and the subject matter of these records is directly related to the request. I find that the town has taken a narrow approach with regard to these records, and that they are reasonably related to the request. I also find that record D95 is responsive to the request. This record is an email from the named individual to the Mayor and fits squarely within the appellant’s request.

[21]  I note that the town has claimed, in the alternative, the possible application of the exclusion in section 52(3)3 to records D17, D18, D23 and D95, which I consider below.

Issue B.  Does section 52(3)3 exclude the records from the scope of the Act?

[22]  The town is claiming the application of the labour relations and employment exclusion in section 52(3)3 to records D3, D4, D5, D7, D12, D13, D14, D16, D17, D18, D19, D21, D22, D23, D30, D33, D34, D35, D38, D39, D51, D52, D53, D64, D65, D66, D67, D68, D69, D75, D76, D77, D78, D79, D88, D91, D93 and D95. The relevant part of section 52(3)3 states:

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.

[23]  If section 52(3) applies to the records, and none of the exceptions found in section 52(4) applies, the records are excluded from the scope of the Act .

[24]  For the collection, preparation, maintenance or use of a record to be in relation to the subjects mentioned in paragraph 3, above, it must be reasonable to conclude that there is some connection between them. [3]

[25]  The term labour relations refers to the collective bargaining relationship between an institution and its employees, as governed by collective bargaining legislation, or to analogous relationships. The meaning of labour relations is not restricted to employer-employee relationships. [4] The term employment of a person refers to the relationship between an employer and an employee. The term employment-related matters refers to human resources or staff relations issues arising from the relationship between an employer and employers that do not arise out of a collective bargaining relationship. [5]

[26]  If section 52(3) applied at the time the record was collected, prepared, maintained or used, it does not cease to apply at a later date. [6]

[27]  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. [7]

[28]  For section 52(3)3 to apply, the town must establish that:

1. the records were collected, prepared, maintained or used by an institution 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.

[29]  The phrase labour relations or employment-related matters has been found to apply in the context of: a job competition; [8] an employee’s dismissal; [9] a grievance under a collective agreement; [10] a voluntary exit program; [11] a review of workload and working relationships; [12] and disciplinary proceedings under the Police Services Act. [13] The phrase has been found not to apply in the context of an organizational or operational review, [14] or litigation in which the institution may be found vicariously liable for the actions of its employee. [15]

[30]  The phrase in which the institution has an interest means more than a mere curiosity or concern, and refers to matters involving its own workforce. [16] The records collected, prepared, maintained or used by the institution are excluded only if the meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the institution has an interest. Employment-related matters are separate and distinct from matters related to employees’ actions. [17]

[31]  The town submits that the records at issue are emails relating to labour relations, and that the three-part test has been met. Concerning part one of the test, the town states that the records were all prepared and/or used by or on behalf of the town. The records consist of emails between the Mayor in his capacity as Head of Council and as a member of the negotiating committee relating to the Oakville Professional Fire Fighters Association (OPFFA) collective agreement, and the President of the OPFFA, who is also an employee of the town.

[32]  With respect to the second part of the test, the town submits that the emails were prepared and/or used by or on its behalf in relation to discussions and communications.

[33]  Turning to the third part of the three-part test, the town submits that the email discussions or communications are about labour relations. In particular, the discussions or communications during the subject time period relate to the terms and conditions of employment arising from the negotiation of the collective agreement between the town and the OPFFA. The town argues that the emails clearly relate to matters that it has an interest in, that is, the firefighters in its workforce and their collective agreement.

[34]  Lastly, the town submits that the exclusion continues to apply, and that none of the exceptions in section 52(4) apply. [18]

[35]  The appellant submits that there are no over-riding labour relations considerations, and that they are entitled to the records under the basic principles set out in section 1 of the Act .

[36]  On my review of the representations and the records [19] for which the exclusion in section 52(3)3 was claimed, I find that all of them were prepared and used by the town in relation to labour relations matters in which it has an interest. As a result, I accept that the exclusion in section 52(3)3 applies and that these records fall outside the scope of the Act .

[37]  With respect to the three-part test, I find that the town collected, prepared, maintained or used each of the records on its own behalf as the employer of the town’s firefighters. [20] I further find that the records form part of the communications and discussions between the Mayor and the President of the OPFFA about the ongoing collective bargaining negotiations between the town’s bargaining committee (of which the Mayor was a member) and the OPFFA President. I also find that some of the communications between the Mayor and the OPFFA President relate to labour relations issues other than the collective bargaining negotiations. Lastly, I find, contrary to the appellant’s position, that these communications and discussions are about labour relations matters in which the town has an interest, namely collective bargaining with the OPFFA, and other labour relations issues relating to the town’s firefighters.

[38]  Consequently, I find that section 52(3)3 applies to exclude these records from the scope of the Act . I also find that none of the exceptions to section 52(3) listed under section 52(4) applies to the records. As previously stated, the appellant has raised the possible application of the public interest override in section 16. I note that the public interest override does not apply to records that are excluded from the scope of the Act .

Issue C:  Do the records contain personal information as defined in section 2(1) and, if so, to whom does it relate?

[39]  In order to determine which sections of the Act  may apply, it is necessary to decide whether the records contain personal information and, if so, to whom it relates. The town is claiming that portions of records D1, D2, D6, D8, D9, D10, D11, D15, D20, D24, D25, D26, D27, D28, D29, D31, D37, D42, D45, D46, D47, D48, D49, D50, D54, D55, D56, D57, D58, D59, D60, D61, D62, D63 and D89 contain personal information.

[40]  Personal information is defined in section 2(1) as follows:

Personal information means recorded information about an identifiable individual, including,

(a)  information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

(b)  information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(c)  any identifying number, symbol or other particular assigned to the individual,

(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 that is implicitly or explicitly of a private and 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 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.

[41]  Section 2(3) also relates to the definition of personal information and states:

Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

[42]  To qualify as personal information, the information must be about the individual in a personal capacity. As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be about the individual. [21] Even if the information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual. [22] To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [23]

[43]  The town submits that some of the emails contain the personal email addresses, personal cell phone numbers, and home telephone numbers of identifiable individuals, as well as the Mayor’s PIN. The town further submits that this information qualifies as personal information, falling within paragraph (d) of the definition of personal information in section 2. The appellant submits that they are of the view that there is insufficient personal information at stake.

[44]  I find that portions of the records listed above contain the personal information of identifiable individuals. In particular, the records contain the personal email addresses, cellular telephone numbers and home telephone numbers of a number of identified individuals, which falls within paragraph (d) of the definition of personal information in section 2(1) and, therefore, qualifies as personal information. Some of the records contain the Mayor’s PIN, which I find qualifies as his personal information, falling within paragraph (c) of the definition. I will now determine whether this personal information is exempt from disclosure under section 14(1).

Issue D:  Does the mandatory exemption in section 14(1) apply to the information at issue?

[45]  Where a requester seeks personal information of another individual, section 14(1) prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) to (f) of section 14(1) applies. The section 14(1)(a) to (e) exceptions are relatively straightforward. The section 14(1)(f) exception, allowing disclosure if it would not be an unjustified invasion of personal privacy is more complex, and requires a consideration of additional parts of section 14, including sections 14(2), (3) and (4).

[46]  If any of the paragraphs in section 14(4) apply, disclosure of personal information is not an unjustified invasion of another’s privacy and the information is not exempt under section 14(1). The appellant has not raised the possible application of any of the paragraphs in section 14(4) and I find that none of them apply in these circumstances.

[47]   If any of the paragraphs in section 14(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy unless section 14(4) or the public interest override in section 16 applies. [24] As stated above, I find that section 14(4) has no application in this appeal. With respect to the application of the presumptions in section 14(3), the town submits that none of the presumptions in section 14(3) apply and the appellant has not addressed these presumptions in their representations. On my review of the records, I find that none of the presumptions in section 14(3) apply in these circumstances.

[48]  If no section 14(3) presumption applies, section 14(2) lists various factors that may be relevant in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy. [25] In order to find that disclosure does not constitute an unjustified invasion of personal privacy, one or more factors and/or circumstances favouring disclosure in section 14(2) must be present. In the absence of such a finding, the exception in section 14(1)(f) is not established and the mandatory section 14(1) exemption applies. [26]

[49]  The list of factors under section 14(2) is not exhaustive. The institution must also consider any circumstances that are relevant, even if they are not listed under section 14(2). [27]

[50]  The town is claiming the application of the personal privacy exemption in section 14(1) to portions of records D1, D2, D6, D8, D9, D10, D11, D15, D20, D24, D25, D26, D27, D28, D29, D31, D37, D42, D45, D46, D47, D48, D49, D50, D54, D55, D56, D57, D58, D59, D60, D61, D62, D63 and D89.

[51]  The town submits that disclosure of the personal information contained in the emails would constitute an unjustified invasion of personal privacy under section 14(1) of the Act . It goes on to argue that none of the presumptions in section 14(3) apply and that the factor in section 14(2)(f), which weighs against disclosure, applies. The town submits that the personal information at issue could be considered to be highly sensitive, and that none of the factors favouring disclosure applies.

[52]  The appellant submits that they are of the view that there is insufficient personal information at stake.

[53]  I find that the disclosure of the personal information contained in the above-referenced records would constitute an unjustified invasion of the personal privacy of identifiable individuals. I find that none of the exceptions in section 14(1) nor the limitations in section 14(4) apply in these circumstances, and I agree with the town that none of the presumptions in section 14(3) apply.

[54]  In the circumstances of this appeal and on my review of the records, I do not find that the factor cited by the town, which does not favour disclosure, applies, as I do not consider the personal information at issue to be highly sensitive. In my view, none of the factors in section 14(2), either weighing for or against disclosure of this personal information, apply.

[55]  However, given that section 14(1) is a mandatory exemption, even if sections favouring non-disclosure in 14(2) and (3) do not apply, the personal information at issue is exempt under section 14(1).

[56]  Under section 4(2) of the Act , the head shall disclose as much of a record as can reasonably be severed without disclosing information that falls under one of the exemptions. The town has advised in its representations that it can disclose these records, subject to severing the personal information.

[57]  As previously stated, the personal information that I have found to be exempt consists of personal email addresses, cellular and home telephone numbers as well as the Mayor’s PIN. This information, I find, can be severed from the records and I will order the remainder of these records to be disclosed to the appellant.

Issue E.   Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the exemption in section 14(1)?

[58]  The appellant has raised the application of the public interest override in section 16, which states:

An exemption from disclosure of a record under sections 7, 9, 10, 11, 13 and 14 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

[emphasis added]

[59]  For section 16 to apply, two requirements must be met. First, there must be a compelling public interest in the disclosure of the records. Second, this interest must clearly outweigh the purpose of the exemption.

[60]  The Act  is silent as to who bears the burden of proof in respect of section 16. This onus cannot be absolute in the case of an appellant who has not had the benefit of reviewing the requested records before making submissions in support of his or her contention that section 16 applies. To find otherwise would be to impose an onus which could seldom if ever be met by an appellant. Accordingly, the IPC will review the records with a view to determining whether there could be a compelling public interest in disclosure which clearly outweighs the purpose of the exemption. [28]

[61]  In considering whether there is a public interest in disclosure of the record, the first question to ask is whether there is a relationship between the record and the Act ’s central purpose of shedding light on the operations of government. [29] Previous orders have stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices. [30]

[62]  A public interest does not exist where the interests being advanced are essentially private in nature. [31] Where a private interest in disclosure raises issues of more general application, a public interest may be found to exist. [32] The word compelling has been defined in previous orders as rousing strong interest or attention. [33]

[63]  The town submits that the public interest override does not apply to the records at issue, and that there is, in fact, a public interest in the non-disclosure of the records in order to maintain the integrity of labour relations negotiations.

[64]  The appellant states:

In our view, the Town of Oakville is attempting to use ostensible exemptions, to defeat a right of access to information, which should be available to members of the public, to promote accountability and transparency as it relates to the operations of municipal government and its citizens. In other words, the Town has effectively reversed the purposes of the MFOI, in denying access to the majority of the records sought.

[65]  As previously stated, the information that I found to be excluded from the Act  under section 52(3)3 is not subject to the public interest override in section 16. The information that may be subject to the public interest override is the personal information that I found to be exempt under section 14(1). This information consists of the personal email addresses, and the cellular and home telephone numbers of certain identifiable individuals, as well as the Mayor’s PIN. I find that there is no compelling public interest in the disclosure of this type of personal information and, therefore, I find that section 16 has no application in this appeal.

[66]  In sum, I uphold the town’s decision. I find that some of the records are not responsive to the request and that others are excluded from the scope of the Act , as section 52(3)3 applies to them. I also find that portions of other records are exempt from disclosure under the personal privacy exemption in section 14(1). Lastly, I find that the public interest override in section 16 does not apply.

ORDER:

1. I order the town to disclose records D40, D41, D43, D86 and D87 in their entirety to the appellant by January 12, 2018 but not before January 8, 2018.
2. I order the town to disclose records D1, D2, D6, D8, D9, D10, D11, D15, D20, D24, D25, D26, D27, D28, D29, D31, D37, D42, D45, D46, D47, D48, D49, D50, D54, D55, D56, D57, D58, D59, D60, D61, D62, D63 and D89 in part to the appellant by January 12, 2018 but not before January 8, 2018. I have enclosed a copy of these records for the town, and have highlighted the portions that are not to be disclosed to the appellant.
3. I reserve the right to require the town to provide this office with copies of the records it discloses to the appellant.

Original Signed by:		December 6, 2017
Cathy Hamilton
Adjudicator