ORDER PO-3931

Appeal PA17-441

Ministry of the Attorney General

February 26, 2019

Summary: The Ministry of the Attorney General (the ministry) received a request under the Freedom of Information and Protection of Privacy Act  for records about the appellant’s complaint regarding a sheriff’s writ in his name. The ministry denied access to the responsive records, citing section 49(a) (discretion to refuse requester’s own information) of the Act, along with the discretionary exemptions in section 13(1) (advice or recommendations) and section 19 (solicitor-client privilege) of the Act. The ministry also withheld some information from the records deemed to be non-responsive to the request.

In this order, the adjudicator upholds the ministry’s decision that the responsive pages of the records are exempt under section 49(a) in conjunction with sections 13(1) or 19. She also finds that the information marked as non-responsive on page 26 of the records is not responsive to the request.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, sections 2(1) (definition of “personal information”), 49(a), 13(1), 19, and 24

OVERVIEW:

[1]  The Ministry of the Attorney General (the ministry) received a request under the Freedom of Information and Protection of Privacy Act  (FIPPA  or the Act ) for the following records:

An access request was made April 2016.

A decision was made May 2016.

An appeal was not made at that time and I would like the opportunity to appeal that decision.

Therefore; I am now asking for a reissue of that decision [in order] that an appeal may move forward.

Please provide [ministry file number] in the same manner and content as that originally provided in 2016.

[2]  The appellant’s April 2016 access request referred to in the request sought records of the Ministry of the Attorney General/Court Operations and the Sherriff of the City of Toronto concerning the appellant’s complaint of December 17, 2015 related to a sheriff’s writ in his name.

[3]  In both access decisions, [1] the ministry identified 187 pages of responsive records and issued a decision granting partial access to these records. The ministry withheld some records pursuant to the discretionary exemptions in section 13(1) (advice or recommendations) and section 19 (solicitor-client privilege) of the Act . The ministry also withheld some records deemed to be non-responsive to the request.

[4]  As suggested, the requester (now the appellant) appealed the ministry’s second access decision to this office.

[5]  During the course of mediation, the ministry also advised that it wished to claim section 49(a) (discretion to refuse requester’s own information) of the Act , in conjunction with its section 13(1) and section 19 claims.

[6]  As a mediated resolution of the appeal was not possible, it was moved to the adjudication stage of the appeal process for a written inquiry under the Act .

[7]  Representations were then sought and exchanged between the parties in accordance with section 7 of the IPC’s Code of Procedure and Practice Direction 7.

[8]  In its representations, the ministry identified that:

• pages 41 and 42 are a duplicate of page 29;
• page 103 is a duplicate of page 83;
• page 172 is a duplicate of pages 169-170; and,
• pages 186 (part) and 187 (appellant’s email of January 27, 2016) and 153-154 (appellant’s request letter and form of February 9, 2016) should have been disclosed to the appellant.

[9]  Therefore, pages 41, 42, 103, 153-154, 172, 186 (part) and 187 are no longer at issue in this appeal.

[10]  The ministry also acknowledged that the remaining part of page 186 is responsive to the appellant’s request. Therefore, the responsiveness of page 186 is no longer at issue.

[11]  As the ministry agreed that pages 153, 154 and 186 (other than the two email conversations at the top of this page) and 187 can be disclosed to the appellant, I am ordering this information disclosed in this order.

[12]  In this order, I uphold the ministry’s decision that the reminder of the withheld records, or parts of records, are exempt under section 49(a) in conjunction with sections 13(1) or 19. I also uphold the ministry’s decision that the information marked as non-responsive on page 26 of the records is not responsive to the request.

RECORDS:

[13]  The records at issue consist of emails or portions of emails, except for page 83, which is a letter. The records are identified by the ministry as:

• • Pages 14, 18, 19, 20, 21, 27, 28, 29, 31, 32, 33, 37, 53, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 80, 83, 95, 96, 97, 98, 99, 100, 121, 122, 136, 142, 143, 147, 148, 156, 157, 169, 170, 185, and 186, withheld in whole or in part, pursuant to section 49 (a) of the Act , in conjunction with section 13(1)  of the Act ;

• • Pages 26, 27 and 28, withheld in whole or in part, pursuant to section 49 (a) of the Act , in conjunction with section 19  of the Act ; and

• • Page 26, withheld in whole or in part, as non-responsive.

ISSUES:

1. What is the scope of the request? Is page 26 responsive to the request?
2. Do the records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
3. Does the discretionary exemption at section 49(a) (own personal information) in conjunction with the section 13(1) advice or recommendations exemption apply to the information at issue in pages 14, 18, 19, 20, 21, 27, 28, 29, 31, 32, 33, 37, 53, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 80, 83, 95, 96, 97, 98, 99, 100, 121, 122, 136, 142, 143, 147, 148, 156, 157, 169, 170, 185, and 186?
4. Does the discretionary exemption at section 49(a) (discretion to refuse requester’s own personal information) in conjunction with the section 19 solicitor client exemption apply to the information at issue in pages 26, 27 and 28?
5. Did the institution exercise its discretion under section 49(a)? If so, should this office uphold the exercise of discretion?

DISCUSSION:

Issue A: What is the scope of the request? Is page 26 responsive to the request?

[14]  Section 24  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).

[15]  The ministry states that the appellant’s request provided was sufficiently detailed to allow the ministry to identify the records responsive to the request. The ministry states that it determined that the scope of the request included records about all ministry staff at a specific Toronto courthouse and the Civil Policy and Programs Branch at another address in Toronto. Further, the ministry determined that the responsive records would be those that relate to the appellant’s complaint dated December 17, 2015. It states:

When determining whether a particular record was responsive to the request, the ministry liberally applied discretion and resolved any ambiguity in favour of the Appellant. Further, the ministry considered that responsive documents would be those held within the ministry concerning the requester’s complaint and would not include other information that did not concern the complaint.

It is the ministry’s position that the withheld record on page 26 was not responsive to the request and does not reasonably relate to the request. Specifically, the withheld record refers to a FOI request but not to the request that is the subject of this appeal.

[16]  The appellant did not address this issue in his representations.

Analysis/Findings

[17]  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. [2]

[18]  To be considered responsive to the request, records must “reasonably relate” to the request. [3]

[19]  The appellant’s request seeks access to records of the Ministry of the Attorney General/Court Operations and the Sherriff of the City of Toronto for the period of December 17, 2005 until April 4, 2016 related to a complaint of December 17, 2015.

[20]  Page 26 consists of three emails. The ministry has marked two of these emails as non-responsive. One is dated April 5, 2016 and the other is dated February 2, 2016. The April 5, 2016 email postdates the request date range and is, therefore, not responsive to the request. The February 2, 2016 email refers to a different ministry file number than that in the current or original request and discusses this other request. I find that this email is also not responsive to the appellant's request.

[21]  Therefore, I find that the information that the ministry has identified as non-responsive on page 26 of the records is not responsive to the appellant’s request.

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

[22]   In order to determine which sections of the Act  may apply, it is necessary to decide whether the record contains “personal information” and, if so, to whom it relates. That term 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 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 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;

[23]   The list of examples of personal information under section 2(1) is not exhaustive. Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information. [4]

[24]  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. [5]

[25]  Even if 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. [6]

[26]  The ministry takes the position that the withheld records contain the personal information of the appellant as defined in paragraphs (c), (f) and (h) of the definition of personal information in section 2(1). The ministry states that the records relate to letters sent to the ministry by the appellant identifying certain concerns and the ministry’s responses to those letters, as well as an identifying number associated with the appellant and the name of the appellant. The ministry submits that the request clearly seeks information relating to the appellant in his personal capacity and that it is reasonable to expect that the appellant may be identified if the information is disclosed.

[27]  The appellant did not address the issues set out in the Notice of Inquiry directly in his representations. However, he indicates that the ministry did not protect his personal privacy in placing his name on a sheriff’s writ.

Analysis/Findings

[28]  I agree with the ministry that the records contain the personal information of the appellant only.

[29]  The records contain information submitted by him about a writ in his name. Although the appellant was acting in a business capacity as an estate trustee, I find that the records reveal information about him in a personal capacity. As stated above, even if information relates to an individual in a business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual.

[30]  In particular, the records reveal information about the appellant as set out in paragraphs (c), (e) to (h) of the definition of personal information in section 2(1). They concern his correspondence to the ministry, which contains his complaint about the writ in his name, the appellant’s views about the writ and other individuals’ views of the appellant’s complaint.

Issue C: Does the discretionary exemption at section 49(a) (discretion to refuse requester’s own personal information) in conjunction with the section 13(1) advice or recommendations exemption apply to the information at issue in pages 14, 18, 19, 20, 21, 27, 28, 29, 31, 32, 33, 37, 53, 59, 60, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79, 80, 83, 95, 96, 97, 98, 99, 100, 121, 122, 136, 142, 143, 147, 148, 156, 157, 169, 170, 185, and 186?

[31]  Section 47(1) gives individuals a general right of access to their own personal information held by an institution. Section 49 provides a number of exemptions from this right.

[32]  Section 49(a) reads:

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

where section 12, 13, 14, 14.1, 14.2, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information.

[33]   Section 49 (a) of the Act  recognizes the special nature of requests for one’s own personal information and the desire of the legislature to give institutions the power to grant requesters access to their personal information. [7]

[34]  Where access is denied under section 49(a), the institution must demonstrate that, in exercising its discretion, it considered whether a record should be released to the requester because the record contains his or her personal information.

[35]  In this case, the ministry relies on section 49(a) in conjunction with section 13(1).

[36]  Section 13(1) states:

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.

[37]   With respect to the emails and attachments at pages 14, 18-20, 21, 26-29, 31-33, 37, 53, 65-67, 68-70, 72-74, 75-80, 83, 95-100, 121-122, 142-143, 147-148, 156-157, the ministry submits that the records contain recommendations related to a suggested course of action, specifically the drafting, review or approval of a response to correspondence sent by the appellant that will ultimately be accepted or rejected by the recipient of those recommendations.

[38]  With respect to the emails at pages 59, 60, and 62 to 64, the ministry states they contain advice in the form of alternative courses of action in relation to a decision that is to be made, specifically the response to the correspondence sent by the appellant.

[39]  With respect to the email at page 136, the ministry states that the writer is suggesting a course of action related to the appellant’s correspondence that will ultimately be accepted or rejected by the recipient.

[40]  With respect to the emails at pages 169 and 170, the ministry states that they contain a conversation with respect to an appropriate referral to be provided to the appellant that will ultimately be accepted or rejected by the recipient.

[41]  With respect to the emails on page 185 and at the top of page 186, the ministry states that they contain a conversation with respect to action to be taken regarding further correspondence from the appellant and will ultimately be accepted or rejected by the recipient.

[42]  Therefore, the ministry submits that pages 136, 169, 170, 185 and the top of page 186 contain recommendations.

Analysis/Findings

[43]  The purpose of section 13 is to preserve an effective and neutral public service by ensuring that people employed or retained by institutions are able to freely and frankly advise and make recommendations within the deliberative process of government decision-making and policy-making. [8]

[44]  “Advice” and “recommendations” have distinct meanings. “Recommendations” refers to material that relates to a suggested course of action that will ultimately be accepted or rejected by the person being advised, and can be express or inferred.

[45]  “Advice” has a broader meaning than “recommendations”. It includes “policy options”, which are lists of alternative courses of action to be accepted or rejected in relation to a decision that is to be made, and the public servant’s identification and consideration of alternative decisions that could be made.  “Advice” includes the views or opinions of a public servant as to the range of policy options to be considered by the decision maker even if they do not include a specific recommendation on which option to take. [9]

[46]  “Advice” involves an evaluative analysis of information. Neither of the terms “advice” or “recommendations” extends to “objective information” or factual material

[47]  Advice or recommendations may be revealed in two ways:

• • the information itself consists of advice or recommendations

• • the information, if disclosed, would permit the drawing of accurate inferences as to the nature of the actual advice or recommendations. [10]

[48]  The application of section 13(1) is assessed as of the time the public servant or consultant prepared the advice or recommendations. Section 13(1) does not require the institution to prove that the advice or recommendation was subsequently communicated. Evidence of an intention to communicate is also not required for section 13(1) to apply as that intention is inherent to the job of policy development, whether by a public servant or consultant. [11]

[49]  Examples of the types of information that have been found not to qualify as advice or recommendations include

• • factual or background information [12]

• • a supervisor’s direction to staff on how to conduct an investigation [13]

• • information prepared for public dissemination [14]

[50]  Based on my review of the information at issue in the records, I agree with the ministry that the information at issue in the records consists of the advice or the recommendations of a public servant concerning the response to the appellant’s complaint.

[51]  Therefore, subject to my review of the ministry’s exercise of discretion, the information at issue is exempt under section 13(1).

[52]  In making this finding, I have considered whether any of the information at issue falls within the mandatory exceptions to section 13(1) in section 13(2) or 13(3), and I have determined that none of the exceptions apply in the circumstances of this appeal.

Issue D: Does the discretionary exemption at section 49(a) (discretion to refuse requester’s own personal information) in conjunction with the section 19 solicitor client exemption apply to the information at issue in pages 26, 27 and 28?

[53]  As stated above, section 47(1) gives individuals a general right of access to their own personal information held by an institution and section 49 provides a number of exemptions from this right. Under section 49(a), a head may refuse to disclose to the individual to whom the information relates personal information.

[54]  Section 19  of the Act  states as follows:

A head may refuse to disclose a record,

(a) that is subject to solicitor-client privilege;

(b) that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation; or

(c) that was prepared by or for counsel employed or retained by an educational institution or a hospital for use in giving legal advice or in contemplation of or for use in litigation.

[55]  Section 19 contains two branches. Branch 1 (“subject to solicitor-client privilege”) is based on the common law. Branch 2 (prepared by or for Crown counsel or counsel employed or retained by an educational institution or hospital) is a statutory privilege. The institution must establish that one or the other (or both) branches apply.

[56]  In this case, the ministry takes the position that both the common law solicitor-client communication privilege in Branch 1 and the statutory solicitor-client communication privilege in Branch 2 apply.

[57]  Concerning Branch 1, the ministry states that the emails at issue on pages 26 to 28 contain two separate, but related, conversations that took place directly between a solicitor and his client, for the purpose of giving legal advice. The ministry explains that:

In the earlier of the two emails, the client is providing draft correspondence to counsel for the purpose of obtaining legal advice about the content of the correspondence. In the latter of the two e-mails, counsel provides that advice. The text of the email clearly indicates that it is an exchange of information meant only for the recipients of the email. It is also clear from the text of the email that the solicitor is providing the recipient with advice on a next step and that the advice is legal in nature.

[58]  Concerning Branch 2, the ministry states that the emails at issue on pages 26 to 28 were prepared by Crown counsel in order to provide the client with legal advice and are exempt on that basis for reasons similar to those stated for Branch 1. In particular, the ministry submits that the solicitor is providing the recipient with advice on a next step and that the advice is legal in nature.

Analysis/Findings

[59]  Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining or giving professional legal advice. [15] The rationale for this privilege is to ensure that a client may freely confide in his or her lawyer on a legal matter. [16] The privilege covers not only the document containing the legal advice, or the request for advice, but information passed between the solicitor and client aimed at keeping both informed so that advice can be sought and given. [17]

[60]  Confidentiality is an essential component of the privilege. Therefore, the institution must demonstrate that the communication was made in confidence, either expressly or by implication. [18] The privilege does not cover communications between a solicitor and a party on the other side of a transaction. [19]

[61]  Based on my review of the emails at issue on pages 26 to 28 of the records, I accept the ministry’s submission that they contain confidential correspondence between Crown counsel and staff at the ministry relating to the seeking and giving of legal advice. Therefore, I find that the withheld emails fit within both Branch 1 and Branch 2 of the section 19 exemption for solicitor-client communication privilege. There is no evidence before me to suggest that this privilege has been lost or waived by the ministry, and I find that it has not.

[62]  Therefore, subject to my review of the ministry’s exercise of discretion, I find that the responsive information at issue on pages 26 to 28 of the records is exempt under section 49(a), together with section 19.

Issue E: Did the institution exercise its discretion under section 49(a)? If so, should this office uphold the exercise of discretion?

[63]  The section 49(a) exemption is discretionary and permits an institution to disclose information, despite the fact that it could withhold it. An institution must exercise its discretion. On appeal, the Commissioner may determine whether the institution failed to do so.

[64]  In addition, the Commissioner may find that the institution erred in exercising its discretion where, for example,

• • it does so in bad faith or for an improper purpose

• • it takes into account irrelevant considerations

• • it fails to take into account relevant considerations.

[65]  In either case this office may send the matter back to the institution for an exercise of discretion based on proper considerations. [20] This office may not, however, substitute its own discretion for that of the institution. [21]

[66]  Relevant considerations may include those listed below. However, not all those listed will necessarily be relevant, and additional unlisted considerations may be relevant: [22]

• • the purposes of the Act , including the principles that

• o information should be available to the public

• o individuals should have a right of access to their own personal information

• o exemptions from the right of access should be limited and specific

• o the privacy of individuals should be protected

• • the wording of the exemption and the interests it seeks to protect

• • whether the requester is seeking his or her own personal information

• • whether the requester has a sympathetic or compelling need to receive the information

• • whether the requester is an individual or an organization

• • the relationship between the requester and any affected persons

• • whether disclosure will increase public confidence in the operation of the institution

• • the nature of the information and the extent to which it is significant and/or sensitive to the institution, the requester or any affected person

• • the age of the information

• • the historic practice of the institution with respect to similar information.

[67]  The ministry states that it took into account the purposes of the Act , including the principles that:

(1) information should be available to the public;

(2) individuals should have a right of access to their own personal information;

(3) exemptions from the right of access should be limited and specific; and

(4) the privacy of individuals should be protected.

[68]  Further, the ministry states that it considered the interests sought to be protected by the exemption in section 19, namely to protect direct communications of a confidential nature between a solicitor and client to ensure that clients are not discouraged from confiding in their lawyer on future legal matters.

[69]  In addition, the ministry states that it considered the fact that none of the records would exist were it not for the appellant’s letters to the ministry, that the information was the appellant’s own personal information and that the appellant’s concerns, raised in his correspondence, were clearly addressed in the ministry’s responses.

[70]  The appellant did not provide representations about the ministry’s exercise of discretion, other than to repeat that the ministry erred in not disclosing the records to him and that his privacy was breached by the issuance of the writ in his name.

Analysis/Findings

[71]  I find that in denying access to the records at issue, the ministry exercised its discretion under section 49(a) in a proper manner, taking into account relevant considerations and not taking into account irrelevant considerations. The issues before me in this appeal related to the application of the claimed exemptions to the records and the appellant’s access to the responsive records, not the alleged breach of the appellant’s privacy by reason of a sheriff’s writ being issued in his name.

[72]  Accordingly, I uphold the ministry’s exercise of discretion and find that the records are exempt under section 49(a).

ORDER:

1. I order the ministry to disclose pages 153, 154 and 186 (other than the two email conversations at the top of this page) and page 187 to the appellant by March 19, 2019.
2. I uphold the ministry’s decision to deny access to the remaining information in the records.

Original signed by		February 26, 2019
Diane Smith
Adjudicator