INTERIM ORDER MO-4312-I

Appeal MA19-00081

City of Stratford

December 29, 2022

Summary: The City of Stratford (the city) received a request under the Municipal Freedom of  Information and Protection of Privacy Act (the Act) for access to records related to firefighter training and oversight. The city granted partial access to the responsive records, withholding some information pursuant to the discretionary exemptions at sections 7(1) (advice or recommendations) and 12 (solicitor-client privilege) of the Act , and the mandatory exemptions at sections 10(1) (third party information) and 14(1) (personal privacy). In this interim order, the adjudicator upholds the city’s decision that sections 7(1), 12 and 14(1) apply to some of the information at issue. However, she orders the city to re-exercise its discretion in relation to its application of the of the sections 7(1) and 12 exemptions. She determines that section 10(1) does not apply to any of the information that the city withheld and orders the city to disclose to the appellant the records, or portions of records, that sections 7(1), 10(1), 12 and/or 14(1) do not apply to.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 2  (definitions), 7(1), 10(1), 12, and 14(1).

OVERVIEW:

[1] The requester seeks various information from the City of Stratford (the city) under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) related to the standards, training and degree of oversight provided in relation to firefighters employed by the city that are tasked with responding to emergency medical calls within the city. [1] According to the requester, medical response has become a key role for the Stratford Fire Department. The requester says that there is a “clear and pressing public interest” in having information related to the training, standards and medical oversight of city firefighters available to the public as these calls presently outnumber calls for fire responses.

[2] The city granted partial access to the records it identified as responsive to the request. The city denied access to the remainder of the information pursuant to the discretionary exemptions in the Act  at sections 7(1)  (advice or recommendations) and 12 (solicitor-client privilege), and the mandatory exemptions at sections 10(1) (third party information) and 14(1) (personal privacy), as well as the exclusion at 52(3) (labour relations or employment records). The requester, now appellant, appealed the city’s decision concerning the exemptions and exclusion claimed.

[3] During mediation, the city conducted a further search for responsive records and informed the mediator that it widened the scope of the original request to include records that it had initially withheld as not responsive. The city denied access to a portion of the new records it identified pursuant to sections 7(1) and 10(1) of the Act and also applied the exclusion at section 52(3)  of the Act . [2]

[4] The city released an additional record and the appellant advised the mediator they were no longer pursuing access to other records. [3] The appellant also advised the mediator that they were not pursuing access to any information deemed not responsive to the request, or to any names, emails, addresses, phone numbers, age and date of births contained within a number of specified records. [4] Finally, the appellant specified that they are not seeking access to duplicate records. [5]

[5] No further mediation was possible and the file was transferred to the adjudication stage of the appeals process where an adjudicator may conduct a written inquiry under the Act . The adjudicator originally assigned to this appeal decided to conduct an inquiry. The parties were asked to address the issues set out in a Notice of Inquiry and their representations were shared, in accordance with the IPC’s Code of Procedure and Practice Direction 7. The appeal was then transferred to me to continue the inquiry.

[6] After reviewing all of the evidence before me, I determined that it was necessary to notify an affected party of the inquiry and allow that individual to provide representations on whether some of the information at issue should be disclosed. [6] The affected party did not provide representations in response to the Notice of Inquiry that was sent to them.

[7] In this interim order, I uphold the city’s decision that sections 14(1), 7(1) and 12 apply to some of the information at issue. I order the city to withhold the information that section 14(1) applies to and I order it to re-exercise its discretion in relation to the information that I find sections 7(1) and 12 apply to. Finally, I find that section 10(1) does not apply to any of the information that the city withheld. I order the city to disclose to the appellant the records that neither section 14(1), 7(1), 10(1) or 12 apply to.

RECORDS:

There are 13 records remaining at issue. [7] They are comprised of emails and attachments, manuals/instructional guidelines and other documents. [8]

ISSUES:

1. Do the records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
2. Does the mandatory personal privacy exemption at section 14(1) apply to the information at issue?
3. Does the discretionary exemption for advice and recommendations at section 7(1) apply to the information at issue?
4. Does the mandatory exemption for third party information at section 10(1) apply to the information at issue?
5. Does the discretionary exemption for solicitor-client privilege at section 12 apply to the information at issue?
6. Did the institution exercise its discretion under sections 7 and 12? If so, should this office uphold the exercise of discretion?

DISCUSSION:

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

[8] 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) and the relevant portions are as follows:

“personal information” means recorded information about an identifiable individual, including, …

(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, …

(d) the address, telephone number, fingerprints or blood type of the individual, …

(h) the individual’s name if 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;

[9] 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. [9]

[10] Sections 2(2.1) and (2.2) also relate to the definition of personal information. These sections state:

(2.1) 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.

(2.2) For greater certainty, subsection (2.1) applies even if an individual carries out business, professional or official responsibilities from their dwelling and the contact information for the individual relates to that dwelling.

[11] 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. [10]

[12] 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. [11]

[13] To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [12]

[14] The city says that the records 11, 34, 44, 47, 114, 119, 171, 181 and 225 contain information about individuals’ health, their life plans, vacations, employee training and education history.

[15] The appellant says that they are not seeking any personal information related to any individual firefighters such as home addresses, personal telephone numbers or their home email addresses. Furthermore, the appellant says that they are not seeking any information that would reveal the addresses or locations of specific medical calls responded to by the Stratford Fire Department. The appellant submits that the remainder of the records at issue should be disclosed to them as the emails and other correspondence at issue was completed in the course of the individuals’ employment and as such, does not constitute personal information.

[16] I have reviewed the records at issue and find that some portions contain personal information, as that term is described in section 2(1)  of the Act .

[17] To begin, I note that the city says that record 11 contains the personal emails of firefighters. Based on the city’s confidential description of where in record 11 these emails appear, I believe that they are located on page one of record 11.1. I note that the mediator indicated that records 11.1 to 11.5 are no longer at issue. In any event, the appellant clearly specified that they are not interested in pursuing access to firefighters’ personal emails. As such, I find that the city does not need to disclose the email addresses in record 11.1 to the appellant.

[18] Next, I find that record 34 contains a sentence the city has severed in an email that is personal information as set out in paragraph (b) above. That same email is duplicated in record 44 and so the same line is personal information in that email as well. This line refers to health related matters of an identifiable individual and is therefore personal information.

[19] Continuing, I find that although the city says that record 47 includes personal information about firefighters’ training, the training information is discussed in a general manner that does not identify any particular individual. As such, I find that this information is not personal information. As the city has not claimed any other exemption in relation to this information, it must be disclosed.

[20] I also find that record 114 does not contain personal information. The city has identified email addresses and the content of an email as personal information. However, in my view, the individuals in the emails are clearly discussing business-related matters and nothing of a personal nature is revealed. [13]

[21] Record 119 contains personal information as set out in paragraphs (b) and (h) of the definition of that term in section 2(1)  of the Act . I note that most of the personal information in record 119 is comprised of information about medical calls that the firefighters attended to. The appellant has already indicated that they are not seeking access to the location of any medical calls. However, in my view, additional information in record 119 is personal information as the nature of the medical event, alongside the other information in the record, could reveal the identity of the individual who required treatment even without their name or address. I also find that there are three sentences that relate to the sender and/or recipient of the emails in a personal manner. I find that these sentences are also personal information.

[22] Records 171 and 181 contain contact information for individuals, including addresses, phone numbers and email addresses. [14] This is personal information pursuant to paragraph (d), above.

[23] Finally, I find that record 225 contains an identifiable individual’s education and employment history, which qualifies as personal information pursuant to paragraph (b) above. I have considered the appellant’s assertion that this information may qualify as professional, or business-related information. However, in previous IPC orders, information from professional profiles, similar to that found in resumes, such as education and past work experience, has been found to be personal information as defined in section 2(1). [15] I agree with and adopt that approach and apply it to the information the city has identified as personal information in Record 225.

[24] I have also considered the appellant’s representation that because many of the emails were sent during the course of individual’s employment, the information in those emails is not personal information. However, I find that all of the information I have found to be personal information would reveal something of a personal nature about an identifiable individual, even if the information appears in a record that was created in the course of the sender’s employment.

[25] Accordingly, I find that records 34, 44, 119, 171, 181 and 225 contain personal information for the purposes of section 2(1) of the Act and as such, I must review this information to determine whether it is exempt from disclosure under section 14(1)  of the Act . Record 47 does not include any personal information and so the portions of that record for which the city has not claimed any other exemptions must be disclosed.

Issue B: Does the mandatory personal privacy exemption at section 14(1) apply to the information at issue in the records?

[26] Above, I concluded that records 34, 44, 119, 171, 181 and 225 contain personal information of identifiable individuals. Where a requester seeks the 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.

[27] 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.

[28] Under section 14(1)(f), if disclosure would not be an unjustified invasion of personal privacy, it is not exempt from disclosure. Sections 14(2) and (3) help in determining whether disclosure would or would not be an unjustified invasion of privacy. Also, section 14(4) lists situations that would not be an unjustified invasion of personal privacy.

[29] If any of paragraphs (a) to (h) of section 14(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy under section 14. Once established, a presumed unjustified invasion of personal privacy under section 14(3) can only be overcome if section 14(4) or the “public interest override” at section 16 applies. [16]

[30] If no section 14(3) presumption applies and the exception in section 14(4) does not apply, 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. [17] 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. [18]

[31] 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). [19]

[32] The city says that none of the personal information meets any of the exceptions for disclosure under section 14(1). The city submits that the disclosure of the information would identify details of a personal nature about various individuals that has nothing to do with the subject matter of the appellant’s request.

[33] The appellant says that the personal information in the records should be disclosed as it would permit an assessment of any problems or difficulties the fire department is experiencing with regard to medical responses.

[34] In its reply, the city reiterates that the personal information contained in the records does not relate to the subject matter of this request. The city says that disclosure of this information would result in an unjustified invasion of privacy and would not assist the appellant in assessing “any problems or difficulties being experienced by the fire department in the provision of emergency medical responses.”

[35] I note that none the information at issue in records 34, 44, 119, 171, 181 and 225 fits within the exceptions set out in sections 14(1)(a) to (e), nor section 14(4)  of the Act . As such, I will turn to discuss whether any of the presumptions under section 14(3) or any of the section 14(2)  factors apply to the personal information at issue.

[36] The personal information at issue consists of health-related matters, including information about individual medical calls firefighters attended to, contact information for individuals who are not firefighters or city employees, and professional “resume-type” information that describes an individual’s education and employment history.

[37] To begin, I find that the presumption in section 14(3)(d) applies to the professional/resume information at issue in record 225. Section 14(3)(d) specifies that the disclosure of personal information relating to employment or educational history is presumed to be an unjustified invasion of personal privacy. Past IPC orders have established that personal information contained in resumes or professional profiles generally fits within the scope of the presumption against disclosure in section 14(3)(d). [20] As noted above, the withheld portions of record 225 contains a paragraph summarizing the affected party’s prior employment, experience, education and training. This personal information is clearly related to the affected party’s employment and educational history. Therefore, I am satisfied that the withheld portion of record 225 relates to the employment and education history of the affected party and I find that the presumption in section 14(3)(d) applies.

[38] However, I am not satisfied that the presumptions in sections 14(3)(a) or (f) apply to any of the remaining personal information at issue in records 34, 44, 119, 171 or 181. While some of the information relates to the health of identifiable individuals, it is no more than tangentially connected to a medical diagnosis, condition or treatment as required by section 14(3)(a). As such, I am not satisfied that the disclosure of any of the information at issue would constitute a presumed unjustified invasion of their personal privacy under section 14(3)(a). I also find that none of the other provisions in section 14(3) are applicable to the remaining information at issue.

[39] I have also reviewed the factors and circumstances favouring disclosure in section 14(2) and find that none apply. Specifically, I find that disclosing the personal information at issue would not subject the activities of the city to public scrutiny, as required by section 14(2)(a). I have considered the appellant’s assertion that the disclosure of the information at issue would permit an assessment of any problems or difficulties being experienced by the fire department in the provision of emergency medical responses. I do not agree. The information the city has withheld is personal information that relates specifically to the affected individuals and I am unable to see how disclosing it would achieve the goals mentioned by the appellant.

[40] Similarly, I find that disclosing the personal information at issue would not promote public health and safety. I have considered the appellants’ representations where they made a number of arguments that it would be “in the public interest” to disclose the information the city has withheld pursuant to section 14(1) since the firefighters are responding to medical calls, but I find that no public interest would be served by such a disclosure. This is because the information is comprised of personal details that are not relevant to the issues raised by the appellant and would not shed any light on the matters they describe. Therefore, I find that none of the factors or circumstances favouring disclosure in section 14(2) are present in this case.

[41] Having concluded that section 14(3)(d) applies to Record 225, and where none of the factors favouring disclosure in section 14(2) apply to any of the personal information, I find that the exception in section 14(1)(f) is not established. Consequently, in view of the fact that section 14(1) is a mandatory exemption, I find that the personal information that remains at issue is exempt from disclosure under section 14(1)  of the Act .

[42] I note that the appellant suggested in their representations that disclosure of the information at issue is “in the public interest.” [21] While the appellant did not specifically argue that the “public interest override” at section 16  of the Act  applies to the withheld information, they did specify that there was a public interest in the disclose of information related to firefighter training, as a matter of public safety, and firefighter dispatching to medical calls, as a matter of public spending of tax dollars. I have considered these arguments, but find that the personal information at issue is not relevant to those matters as it relates to personal matters specific to individuals and would not shed any light on the public interest matters raise by the appellant.

[43] Therefore, for the reasons mentioned above, I find that section 14(1) applies to exempt from disclosure the withheld personal information in records 34, 44, 119, 171, 181 and 225. [22]

Issue C: Does the discretionary exemption at section 7(1) apply to the information at issue?

[44] The city says that section 7(1) applies to portions of records 34, 44, 47, 171, 181, 211, 216 and 225. That section states the following:

A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of an officer or employee of an institution or a consultant retained by an institution.

[45] The purpose of section 7 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. [23]

[46] “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.

[47] “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. [24]

[48] “Advice” involves an evaluative analysis of information. Neither of the terms “advice” or “recommendations” extends to “objective information” or factual material. 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. [25]

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

• factual or background information [26]
• a supervisor’s direction to staff on how to conduct an investigation [27]
• information prepared for public dissemination. [28]

[50] The city made representations with regard to each specific record, which I will address below. In response to the city’s representations, the appellant asserts that it has applied section 7(1) “too widely” and that it is using the section in an unjustifiable manner. The appellant says that not all records produced by an employee will be considered to be advice or recommendations and thus exempt from disclosure. For example, the appellant says that the mere provision of facts, information or even feedback by an employee in the context of his or her duties does not amount to the giving of advice or recommendations. The appellant argues that there must be a specific element within the communication that provides suggestions or directions in relation to possible actions the municipality should either take or avoid taking.

[51] The city says that records 34 and 44 contain advice from a consultant to the fire department. The city says that information at issue consists of advice to be considered by the decision-maker and as such should be exempt under section 7(1).

[52] I have reviewed records 34 and 44 and I agree with the city’s characterization of the information it has withheld. The consultant is clearly suggesting a course of action that will ultimately be accepted or rejected by the city, and therefore this information falls into the category of “recommendations.”

[53] Next, the city says that section 7(1) applies to a portion of record 47, which is an email chain. The city says the withheld portion includes a recommended course of action that was provided by a consultant. The city says that record 47 also contains additional information that should be withheld pursuant to section 7(1). The city made additional representations regarding the information at issue that I cannot describe without revealing the content of the withheld information.

[54] In response, the appellant says that communications and/or emails that do not include clear and specific suggestions on a course of action that the city should take do not qualify as advice or recommendations under the Act .

[55] Based on my review of the record 47 I find that section 7(1) applies to all of the information that the city severed pursuant to that section. Specifically, the severed information contains a statement that includes the word “recommend” followed by a suggested course of action. As such, this information clearly meets the criteria in section 7(1)  of the Act .

[56] However, I do not agree with the city’s characterization of the information the city has severed in record 171 and I find that section 7(1) does not apply. The city says that record 171 contains a recommendation from the Mayor to city staff. The severed portion is comprised of a brief two-line email, which, in my view, does not correspond with the city’s description. In my view, the sender of the email is simply declining to take a step and saying that others may review the matter. I do not agree with the city that this is the type of information that section 7(1)  of the Act  is intended to capture. To be clear, I do not agree that the email contains any advice or recommendations. As such, the severed portion must be disclosed to the appellant.

[57] Moving on to record 181, the city says that it contains a request from a constituent. The city made additional representation that have been withheld pursuant to the confidentiality criteria in IPC Practice Direction Number 7. The city reiterates that the purpose of section 7(1) 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. The city says that disclosure of the severed information in record 181 could permit the appellant to infer the advice or recommendations that were made in response to the requests the city received.

[58] I disagree with the city’s characterization of the email communication in record 181. While the correspondence may have ultimately led to a “frank discussion” among city staff members, the sender of the email is merely forwarding factual information to others on the request of another individual. In my view, no advice or recommendations are included and the portion of the email the city has severed and I find that disclosure of the information in record 181 would not permit the accurate inference of any advice or recommendation provided and must be disclosed.

[59] Record 211 was included in the Notice of Inquiry as being at issue and the city has severed information on the record pursuant to section 7(1). However, the city did not make any representations about this record. I have reviewed the severed portions and find that section 7(1) does not apply. The email the city has severed does not contain any information that could be considered advice or recommendations for the purpose of section 7(1). The email confirms receipt of information, indicates that the sender has highlighted some portions of the information received and asks the recipient to review so that the parties to the communication could discuss. I find that section 7(1) does not apply since no advice or recommendation is provided. As no other exemptions are claimed for record 211, the city must disclose it to the appellant.

[60] Next, the city says that portions of record 216 contain advice and recommended courses of action. In addition, the city says there is discussion on the contents of a manual/instructional guide. The city submits that the disclosure of the information at issue would permit the drawing of accurate inferences as to the nature of the actual advice or recommendations given on this subject matter.

[61] I have reviewed record 216 and do not agree with the city’s characterization of the content of the emails. In my view, the emails are more accurately described as a conversation where one party asks a question, the other provides their understanding of the situation, and then the first party responds with additional information and ultimately says that they will defer to the other party to make the ultimate decision. None of the information in the emails can properly be characterized as advice or recommendations within the meaning of section 7(1)  of the Act . And I find that disclosure of the information would not permit the accurate inference of any advice or recommendation provided. The city has not claimed any other exemptions for record 216 and as a result, it must be disclosed to the appellant.

[62] Finally, the city says that portions of record 225 relate to advice and recommendations between city staff and third parties about a specific matter. The city says that disclosure of the information at issue could permit the drawing of accurate inferences as to the nature of the actual advice or recommendations that have been given to the city. I agree with the city that one portion of the highlighted information would reveal information that section 7(1) applies to. I have highlighted that portion in the copy of the records provided to the city with this order. I find that the remaining portions of information that city has severed in record 225 are general workplace communications. They do not contain any advice or recommendations that would meet the criteria set out in section 7(1) of the Act and I find that disclosure of this information would not permit the accurate inference of any advice or recommendation provided. As such, the remainder record 225 must be disclosed to the appellant. [29]

[63] To summarize, I find that section 7(1) applies to the information I have highlighted in red in the copy of the records provided to the city in records 34, 44, 47 and 225. I have considered the appellant’s representations regarding MO-2066, and also considered whether the information at issue in these pages falls within any of the exceptions set out in section 7(2). I find that neither are applicable and information I have found to be exempt is, therefore, exempt from disclosure under section 7(1)  of the Act . I will consider whether the city properly exercised its discretion to apply that exemption later in this decision.

[64] Conversely, I find that section 7(1) does not apply to records 171, 181, 211, 216 and the remaining unhighlighted portions of record 225. Since the city has not applied any other exemptions to these records 171, 181, 211 and 216, this information must be disclosed to the appellant. I will consider whether the city must withhold portions of record 225 pursuant to section 10(1) below.

Issue D: Does the mandatory exemption at section 10(1) apply to the information at issue?

[65] The city says that section 10(1)(a) and (c) applies to record 11 in full and to portions of records 114 and 225. The relevant portions of section 10(1) state:

A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, if the disclosure could reasonably be expected to,

(a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; …

(c) result in undue loss or gain to any person, group, committee or financial institution or agency; or …

[66] Section 10(1) is designed to protect the confidential “informational assets” of businesses or other organizations that provide information to government institutions. [30] Although one of the central purposes of the Act  is to shed light on the operations of government, section 10(1)  serves to limit disclosure of confidential information of third parties that could be exploited by a competitor in the marketplace. [31]

[67] For section 10(1) to apply, the institution and/or the third party must satisfy each part of the following three-part test:

1. the record must reveal information that is a trade secret or scientific, technical, commercial, financial or labour relations information; and
2. the information must have been supplied to the institution in confidence, either implicitly or explicitly; and
3. the prospect of disclosure of the record must give rise to a reasonable expectation that one of the harms specified in paragraph (a), (b), (c) and/or (d) of section 10(1) will occur.

[68] Record 11 is a manual/instructional guide prepared by a third party. The city says that it sought representations from the third party on whether or not the information at issue should be released. The city says that the third party did not consent to the release of these records as “it represents a significant amount of work and could readily be plagiarized. It could compromise [their] competitive position which would result in a loss to [them] personally and the department.”

[69] The city says that the third party provided information that contained their trade secrets, scientific, technical, financial and commercial information and that the record has not been disclosed by the city, nor been made public, nor posted on the city’s website. It asserts that disclosure of this record could be reasonably expected to prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of the third party and cause them undue loss. The city submits that if record 11 is released to the appellant, the appellant may share it with others and cause the third party financial loss.

[70] The appellant submits that the manual prepared by the third party does not qualify as commercial information, nor would its release give rise to any reasonable expectation of harm. The appellant submits that the manual establishes the types of responses that firefighters or paramedics can carry out when they are confronted with a given medical condition or a specific patient’s situation. According to the appellant, the third party who prepares the manual is permitting the first responder to act under the delegated authority of the third party.

[71] The appellant says that the manual is not commercial information, nor can it be regarded as being confidential as it is simply a set of rules that guides the behaviour of firefighters responding to a medical emergency. The appellant argues that risk of harm must be more than mere speculation and there must be specific evidence presented by the party seeking to block the release of the records that demonstrates the clear and present potential for harm.

[72] Based on my review of record 11 and the parties’ representations, I find that section 10(1) does not apply for the following reasons.

[73] To begin, I agree with the city that the manual likely contains either commercial or technical information, or both, as those terms have been described in previous orders. [32] I also find that the manual was supplied to the city by the third party. [33] However, I am unable to conclude that the manual was “supplied in confidence” to the city.

[74] Part 2 of the section 10(1) test set out above contains two parts. The first part, that requires that information be “supplied” to the institution, reflects the purpose in section 10(1) of protecting the informational assets of third parties. Information may qualify as “supplied” if it was directly supplied to an institution by a third party, or where its disclosure would reveal or permit the drawing of accurate inferences with respect to information supplied by a third party. As noted above, I have no trouble finding that the third party supplied the manual to the city based on my review of the record itself.

[75] However, part two of the two-part test requires that the information be supplied in confidence. In order to satisfy the “in confidence” component of part two, the party resisting disclosure must establish that the supplier of the information had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided. This expectation must have an objective basis.

[76] In determining whether an expectation of confidentiality is based on reasonable and objective grounds, all the circumstances are considered, including whether the information was:

• communicated to the institution on the basis that it was confidential and that it was to be kept confidential
• treated consistently by the third party in a manner that indicates a concern for confidentiality
• not otherwise disclosed or available from sources to which the public has access
• prepared for a purpose that would not entail disclosure [34]

[77] The city made no specific representations on the circumstances under which it received the manual from the third party. It asserts that the manual was supplied in confidence, but does not offer evidence or insight into how or why there was a mutual understanding, either explicit or implicit, between the city and the third party that the manual should be kept confidential. The city says that the third party, when contacted about the appellants’ request, did not consent to the disclosure of the manual. However, this does not assist me to understand the circumstances under which the manual was originally supplied.

[78] As noted at the beginning of this decision, I contacted the third party and sought their representations regarding the manual and the application of section 10(1)  of the Act . The third party declined to make any representations and as such, I have no evidence from them about whether they expected that the manual would be kept confidential.

[79] I have reviewed the manual and see nothing in that record itself that would allow me to make a finding that the information was supplied in confidence. As a result, I find that the city has not met its burden to prove that record 11 was supplied in confidence. To be clear, I find that the record 11 is not subject to the mandatory exemption at section 10(1) and it must be disclosed to the appellant.

[80] Moving on to record 114, the city says that it contains portions of information that were redacted under section 10(1) “as the information relates to a third party.” The city says that because it did not contract with this third party “a determination was made to redact their information on this basis.”

[81] I find that section 10(1) does not apply to any of the information in record 114. While it is possible that some of the information could potentially be characterized as commercial information, as that term has been interpreted in previous orders, there is no indication that any of the information was supplied in confidence. Furthermore, the city has made no representations on how the disclosure of this information could reasonably be expected to result in the harms described in section 10(1)  of the Act . As such, I find that section 10(1)  does not apply to record 114 and the city must disclose it.

[82] Finally, I also find that section 10(1) does not apply to any of the information in record 225. Record 225 is comprised of email correspondence between the fire department and a third party regarding the city’s search for a physician who could provide medical oversight and directives to the city. The city says that record 225 contains commercial information provided by a third party about programs that can be offered and their costs. The city reiterates its earlier representation that the third party did not consent to the release of the information at issue.

[83] While I agree that some of the information at issue in record 225 qualifies as commercial information for the purpose of section 10(1), I find that there is insufficient evidence before me upon which I could conclude that any of the information was supplied in confidence. Specifically, I note that there is no indication in the record itself that the third party was supplying any of the information in confidence, nor do I get the impression that the information supplied was confidential. For example, the third party notes that the city is aware that he is working with other community fire services and he also indicates that the Ontario Medical Association set his rates. In my view, these facts, combined with the fact that the third party chose not to participate in this inquiry all weigh in favour of a decision that the information was not supplied in confidence.

[84] As a result, I find that section 10(1) does not apply to record 225 and it must be disclosed to the appellant. [35] To summarize, I find that section 10(1) does not apply to any of the information claimed by the city in records 11, 114 or 225 and these records must be disclosed to the appellant.

Issue E: Does the discretionary exemption at section 12 apply to records 85 and 87?

[85] Records 85 and 87 are emails with attachments. The city submits that records 85 and 87 are subject to solicitor-client privilege and therefore, may be withheld pursuant to section 12  of the Act . That section specifies the following:

A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for counsel employed or retained by an institution for use in giving legal advice or in contemplation of or for use in litigation.

[86] Section 12 contains two branches. Branch 1 (“subject to solicitor-client privilege”) is based on the common law. Branch 2 (“prepared by or for counsel employed or retained by an institution…”) is a statutory privilege. The institution must establish that one or the other (or both) branches apply. In this case, the city says that Branch 1 solicitor-client communication privilege applies.

[87] 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. [36] The rationale for this privilege is to ensure that a client may freely confide in his or her lawyer on a legal matter. [37] 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. [38]

[88] The privilege may also apply to the legal advisor’s working papers directly related to seeking, formulating or giving legal advice. [39]

[89] 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. [40] The privilege does not cover communications between a solicitor and a party on the other side of a transaction. [41]

[90] The city says that record 85, an email with attachments, is subject to section 12 solicitor-client communication privilege because the record is comprised of draft documents that were prepared by legal counsel to give legal advice on an agreement to which the city is also a party.

[91] With regard to record 87, the city says that solicitor-client communication privilege applies because the city requested legal advice on a particular matter [42] and the information at issue is comprised of direct communications of a confidential nature between a solicitor and a client, made for the purpose of obtaining or giving professional legal advice. The city submits that the request for legal advice was made in confidence and that the city has not waived privilege over the communications.

[92] The appellant says that the protections offered by the solicitor client privilege exemption in the Act  are based on the common law principle that a client should be able to have secure and confidential communications with his or her solicitors. For this privilege to be maintained, the appellant asserts that the communications must be treated as confidential by the city and cannot have been distributed to third parties. The appellant submits that in circumstances where the city distributed the information to third parties, it will generally be deemed to have waived the privilege that may have attached to the information. [43]

[93] The appellant asserts that the city’s claim of solicitor-client privilege cannot be maintained because records 85 and 87 were shared with outside parties. Specifically with respect to record 85, the appellant says that this record is an email from the, then, Chief of the Perth County Paramedic service to the, then, Chief Administrative Officer of the County of Perth. [44] The appellant argues that because neither of those individuals was an employee, solicitor or consultant for the city, the release of the legal materials to these outside parties constitutes a waiver of any solicitor client privilege that may have once attached to the record.

[94] Similarly, the appellant says that record 87 is an email exchange between the Stratford Fire Chief and the Perth County Paramedic Chief, with a copy to Stratford’s Deputy Fire Chief. [45] The appellant says that by including an employee of an outside agency in the email exchange, the city’s claim to privilege is waived. As such, the appellant submits that I should not uphold the city’s section 12 claim and should order the records at issue be disclosed.

[95] For the reasons that follow I find that record 87 meets the criteria set out in section 12 and is subject to Branch 1 solicitor-client communication privilege, while record 85 does not and must be disclosed to the appellant.

[96] Record 85 is an email with various attachments sent from an employee of a particular county (not a city employee) to eight individuals. The city has not identified all of the parties to the email correspondence but I am able to tell from one of the email addresses that at least one of the parties is from a fire department other than the Stratford Fire Department.

[97] The city’s explanation is that record 85 contains draft documents that were prepared by counsel for use in giving legal advice on an agreement to which the city was also a party. [46] I have reviewed the agreement referenced and note that the party that the city says retained legal counsel to give advice on the agreement is the party that the city was entering into the agreement with. As noted above, solicitor-client communication privilege does not cover communications between a solicitor and a party on the other side of a transaction. [47]

[98] In circumstances where the email communication attached the agreement and other related information was from a party outside of the city or the fire department, where there are unknown parties on the email chain (at least one of whom I confirm is from yet a different county fire department) and where the city and the party the city claims sought the legal advice are on opposite sides of the agreement, I find that solicitor- client privilege cannot attach to the information in dispute. The city has not established that record 85 is comprised of confidential communications that were made for the purpose of obtaining legal advice. [48] As the city has not applied any other exemptions to record 85 I find that it must be disclosed to the appellant.

[99] However, I find that record 87 is subject to Branch 1 solicitor-client communication privilege pursuant to section 12  of the Act . Based on my review of the record itself, I can see that it is an email from a city employee to a lawyer requesting legal advice on an attached document. There are no other parties to the email aside from the city employee and the lawyer. [49] The city submits that the communication was made in confidence and was not shared with other parties. Based on the evidence before me, I have no reason to reject that assertion. As such, I find that they city may refuse to disclose record 87 pursuant to section 12 of the Act and I will now review the city’s exercise of discretion to withhold the information in record 87.

Issue F: Did the city exercise its discretion under sections 7 and 12? If so, should the IPC uphold the exercise of discretion?

[100] The sections 7(1) and 12 exemptions are discretionary (the institution “may” refuse to disclose), meaning that the institution can decide to disclose information even if the information qualifies for exemption. An institution must exercise its discretion. On appeal, the IPC may determine whether the institution failed to do so.

[101] In addition, the IPC 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; or
• it fails to take into account relevant considerations.

[102] In either case, the IPC may send the matter back to the institution for an exercise of discretion based on proper considerations. The IPC cannot, however, substitute its own discretion for that of the institution.

[103] The city’s representations regarding its exercise of discretion are reproduced below:

Yes, the City exercised its discretion under section 7. The relevant considerations were considered as outlined under “Issue F: Does the discretionary exemption at section 7(1) apply to the records?” It is the City’s view that the IPC should uphold the exercise of this discretion

[104] The city also provided additional information about the factors it took into consideration when it exercised its discretion to withhold information pursuant to section 7(1):

• the purposes and principles of MFIPPA including the principles that the information should be available to the public and exemptions to the right of access, should reflect the specific and limited circumstances where non-disclosure is necessary for the proper operation of municipal institutions;
• the wording of the relevant exemption and the interests the exemption seeks to protect;
• the fact that the requester has presented no sympathetic or compelling need to receive the information;
• the fact that disclosure will not increase or decrease public confidence in the operation of the City but it will have an adverse effect on the ability of City staff to properly consider the advice given in order to formulate decisions; and
• the nature of the information and the fact that the records are highly significant and sensitive to the city.

[105] The city also submits that there is a need to balance the interests intended to be protected by MFIPPA and the public interest in disclosure of information concerning the operation of their municipal institutions. It says that the purpose of section 7(1) 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. The city says it has disclosed considerable amounts of information relating to this access request, however it denied access to the specific information contained in the records at issue to prevent exposing the city and others to the risk of harms which MFIPPA seeks to prevent.

[106] The city also submits that it reconsidered disclosure of the subject records during mediation and agreed to the expansion of the scope of the request. The city says it has taken into account all relevant factors and believes the information at issue is being properly withheld under section 7(1).

[107] While the city has reiterated the basis for which information may be exempt pursuant to section 7(1), its representations do not suggest to me that it considered the submissions made by the appellants about why they wish to have access to the information. Specifically, the city says that the appellants do not have a sympathetic or compelling need to access the information. However, the appellants set out the basis for their belief that city should release the information in the representations as follows:

• The information relates to training and oversight of city firefighters tasked with responding to emergency medical calls;
• The appellants live and work in the city and themselves or their families may one day require the assistance of the fire department in a medical emergency;
• the appellants referred to the fire department’s last public report, which stated that the city “employs forty full time professional firefighters who are overwhelmingly used to respond to medical calls within their community – not fires.”
• Medical calls make up the largest type of call responded to by the fire department;
• the nature and type of medical skills utilized in these calls has been changing as the city has increased the level of medical training provided to its firefighters and allowed them to perform a greater range of medical procedures;
• due to the increasing role that the fire department plays in responding to medical calls, there exists a clear and pressing public interest in having information relating to the training, standards and medical oversight provided to firefighters made available to the public; and
• The appellants say it is a matter of of public safety and public accountability.

[108] The appellants also say that they want to understand the protocols and dispatching rules that dictate when both fire and ambulance crews will be dispatched to the same emergency in order to allow them to evaluate and draw conclusions about whether their tax dollars are being spent appropriately.

[109] Based on the city’s representations, it does not appear that it considered the basis the appellant provided for seeking access to the information at issue. In my view, the reasons for seeking the information at issue set out by the appellants are sufficiently compelling that that the city should have at least considered them, weighed them against the potential impact that releasing the information might have on the city, and clearly indicated in their representations that they had done so.

[110] I also note that the appellants’ representations raise issues related to whether the disclosure of the records would increase public confidence in the city’s operations. [50] This is a relevant factor that the city might have considered when making its decision to withhold information based on discretionary exemptions.

[111] Finally, I note that the city’s representations regarding its exercise of discretion focus only on section 7(1). Section 12  of the Act  is also a discretionary exemption. This means that the city could choose to disclose information subject to that section despite the fact that it may withhold it if that section applies. The Notice of Inquiry provided to the city at the beginning of this inquiry specified that the city was to provide representations on its exercise of discretion to withhold any information pursuant to section 12. The city did not provide any representations or other indication that it considered the fact that it could choose to disclose Record 87.

[112] As emphasized by the Supreme Court of Canada in Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, making a decision under a discretionary exemption involves two steps:

First, the head must determine whether the exemption applies. If it does, the head must go on to ask whether, having regard to all relevant interests, including the public interest in disclosure, disclosure should be made. [51]

[113] For the reasons set out above, I am not satisfied that the city considered whether disclosure of the information I found may be excluded pursuant to sections 7(1) and 12 should be disclosed. Therefore, I am not upholding the city’s exercise of discretion to withhold the information under sections 7(1) and 12 and I am ordering it to re-exercise its discretion.

ORDER:

1. I uphold the city’s decision pursuant to section 14(1) to deny access to the information highlighted in red in records 34, 44, 119, 171, 181 and 225 in the digital copy of the records I provided to the city with this decision.
2. I order the city to disclose to the appellant by February 3, 2023 the information in records 11, 85, 114, 171, 181, 211, 216, 225, except for the information I have determined to be exempt, which is highlighted in red in the copy of records provided to the city with this decision.
3. I uphold the city’s decision that section 7(1) applies to some of the information in records 34, 44, 47 and 225 and that section 12 applies to record 87, but I order it to re-exercise its discretion to withhold that information in accordance with the analysis set out above, and to advise the appellant and this office of the result of this re-exercise of discretion, in writing.
4. If the city continues to withhold all or part of records 34, 44, 47, 87 and 225, I also order it to provide the appellant with an explanation of the basis for re- exercising its discretion to do so and to provide a copy of that explanation to me.
5. The city is required to send the results of its re-exercise of discretion, and its explanation to the appellant, with a copy to this office, by no later than February 3, 2023. If the appellant wishes to respond to the city’s re-exercise of discretion and/or its explanation for re-exercising its discretion to withhold information, he must do so within 15 days of the date of the city’s correspondence by providing me with written representations.

Original Signed By:		December 29, 2022
Meganne Cameron
Adjudicator

APPENDIX A

The following is the complete request:

1. Any and all annual reports prepared and submitted to the City of Stratford Fire Department for any and all years subsequent to 2014;

2. Any and all reports, memorandums or correspondence detailing the annual call volume of the Stratford Fire Department and where available, a breakdown of the nature of those calls;

3. Copies of any and all emails, memorandums, studies or internal correspondence prepared, sent or received by any employee or elected official of the City of Stratford regarding the dispatching of Stratford Fire Department personnel or apparatus to medical incidents from 2016 to present;

4. Copies of any and all emails or correspondence between any employee or elected official of the City of Stratford to or from employees or elected officials at the County of Perth regarding the dispatching of Stratford Fire Department personnel or apparatus to medical incidents from 2016 to present;

5. Copies of any and all emails or correspondence between any employee or elected official of the City of Stratford to or from representatives of the London Central Ambulance Communication Centre regarding the dispatching or “tiering” of Stratford Fire Department personnel or apparatus to medical incidents from 2016 to present;

6. Copies of any and all emails or correspondence between any employee or elected official of the City of Stratford to or from representatives of the Ontario Ministry of Health regarding the dispatching or “tiering” of Stratford Fire Department personnel or apparatus to medical incidents from 2016 to present;

7. Copies of any deployment plans, tiered response agreements or similar documents governing the dispatching or “tiering” of Stratford Fire Department personnel or apparatus to medical incidents by the London Central Ambulance Communication Centre in place from 2016 to present;

8. Any and all memorandums or studies prepared by or at the request of the City of Stratford staff addressing the need for or efficacy of the provision by City Firefighters or medications to patients.

9. Any and all emails, memorandums, correspondence or communication of any kind prepared or received by City of Stratford staff or elected officials relating to the administration or medical oversight of medications by City Firefighters.

10. Any and all emails, memorandums, correspondence or communication of any kind prepared or received by City of Stratford staff or elected officials relating to the possible deployment of paramedics, fire fighters trained as paramedics or other medical personnel on Stratford Fire Department apparatus.

APPENDIX B

Record Number	Number of Pages	Description	Exemption Claimed
11	40	A manual/instructional guide	Section 10(1), in full
34	1	Email	Section 7(1), in part Section 14(1), in part
44	1	Email	Section 7(1), in part Section 14(1), in part
47	1	Email Chain	Section 7(1), in part Section 14(1), in part
85	45	Email with attachments	Section 12, in full
87	6	Email and attached agreement	Section 12, in full
114	2	Emails	Section 10(1), in part Section 14(1), in part
119	4	Emails	Section 14(1), in part
171	3	Emails	Section 7(1), in part Section 14(1), in part
181	4	Emails	Section 7(1), in part Section 14(1), in part
211	3	Emails	Section 7(1), full
216	2	Emails	Section 7(1), in part
225	6	Emails	Section 7(1), in part Section 10(1), in part Section 14(1), in part