ORDER PO-4555

Appeal PA22-00475

Ontario Tech University

September 26, 2024

Summary: The appellant, a member of the media, seeks access to records relating to two specific research grants. The university did not provide this information to the appellant, claiming the application of an exclusion that removes research records from the scope of the Act . In this order, the adjudicator finds the records are excluded from the scope of the Act  due to the research exclusion and dismisses the appeal.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, section 65(8.1) (a) and 65(9) .

Orders Considered: Orders PO-2693, PO-3161, and PO-3576.

OVERVIEW:

[1] The appellant submitted a request under the Freedom of Information and Protection of Privacy Act  (the Act ) to Ontario Tech University (the university) for the following:

1. Records located within the university’s Centre on Hate Bias and Extremism (the Centre) relating to its 2018 Public Safety Canada grant award entitled “Updating the Environmental Scan of Right- Wing Extremism in Canada.” Such records may include, but shall not be limited to, any related explanatory notes regarding the methodology of the centre’s “environmental scan” and for selecting groups and individuals for the scan’s database, and any lists of names contained within said database.
2. Records relating to the 2012 grant award entitled “Right-Wing Extremism in Canada: An Environmental Scan.” Such records may include, but shall not be limited to, any related explanatory notes regarding the methodology of the centre’s “environmental scan” and for selecting groups and individuals for the scan’s database, and any lists of names contained within said database.

[2] The university located one record responsive to the request and granted the appellant partial access to it. The university withheld portions of the record claiming they were excluded from the jurisdiction of the Act  under the research exclusion in section 65(8.1)(a), but disclosed the remaining portions under the exception to the exclusion in section 65(9). Regarding other records that may be responsive to the request, the university advised the appellant his request relates to two research projects conceived, conducted or proposed by a specific faculty member of the university. The university stated the appellant’s request was for specific details regarding the methodology of the research project and data obtained through research. As such, the university took the position that this type of information would be excluded under section 65(8.1)(a).

[3] The appellant appealed the university’s decision to the Information and Privacy Commissioner of Ontario (the IPC).

[4] During mediation, the university provided the appellant with some clarification regarding the information withheld from Record D001, an Excel spreadsheet with research funding details. The appellant confirmed he pursues access to the information withheld from Record D001 and all non-published records responsive to his request.

[5] The university stated it did not conduct a search for additional records relating to the two research projects identified in the appellant’s because the records would be excluded from the scope of the Act and would have resulted in high search fees. The university states it only searched for the funding report because portions of that record would be disclosable pursuant to the exception to the exclusion at section 65(9).

[6] The appellant confirmed his interest in all the records he requested except for any published material in their entirety.

[7] Mediation did not resolve the appeal and it was transferred to the adjudication stage of the appeal process, where an adjudicator may conduct an inquiry to resolve the issues under appeal. I am the adjudicator and sought and received representations from both the university and the appellant.

[8] In his representations, the appellant raised the possible application of the public interest override in section 23  of the Act . The public interest override cannot be applied to a record that is excluded from the scope of the Act . If a record is found to be excluded from the Act , the IPC has no authority to order the disclosure of the record, regardless of whether there is a public interest in that record.

[9] In addition, the appellant makes several allegations regarding the quality of the research and the conclusions the faculty member reached. I cannot comment on these issues in this order. The only issue before me is whether records responsive to the appellant’s request are excluded from the scope of the Act  under section 65(8.1).

[10] Finally, I note the appellant raises the possible application of section 11(1) [1] of the Act , which requires the head of an institution to disclose a record where there are reasonable and probable grounds to believe it is in the public interest to do so and the record reveals a “grave environmental, health, or safety hazard to the public.” I cannot order disclosure of the information at issue if it is excluded from the scope of the Act  under section 65(8.1). Given my finding below, it is not necessary for me to address or consider the appellant’s representations regarding the application of section 11(1) in this order.[2]

[11] In the discussion that follows, I uphold the university’s decision to exclude the records from the scope of the Act  under section 65(8.1)(a). I also uphold the university’s decision to disclose portions of one record due to the application of the exception to that exclusion at section 65(9). I dismiss the appeal.

RECORDS:

[12] The university claims all records responsive to the appellant’s request that are not published are excluded under section 65(8.1)(a). The university disclosed portions of Record D001, a funding spreadsheet, on the basis that those portions are subject to the exception to the exclusion at section 65(9).

DISCUSSION:

[13] The sole issue to be determined in this is appeal is whether the section 65(8.1)(a) exclusion for records respecting or associated with research or teaching applies to the records.

[14] Section 65(8.1)  of the Act  excludes certain records relating to research and teaching from the Act . As a result, the Act ’s access scheme does not apply to them. The purpose of this provision is to protect academic freedom and competitiveness.[3] Section 65(8.1) states,

(8.1) This Act  does not apply,

(a) to a record respecting or associated with research conducted or proposed by an employee of an educational institution or by a person associated with an education institution.

[15] Sections 65(9) and (10) create exceptions to the exclusion found at section 65(8.1). These sections state:

(9) Despite subsection (8.1), the head of the educational institution or hospital shall disclose the subject-matter and amount of funding being received with respect to the research referred to in that subsection.

(10) Despite subsection (8.1), this Act  does apply to evaluative or opinion material compiled in respect of teaching materials or research only to the extent that it is necessary for the purpose of subclause 49(c.1)(i).

[16] The term research means “a systematic investigation designed to develop or establish principles, facts or generalizable knowledge, or any combination of them, and includes the development, testing and evaluation of research.” The research at issue must be able to be linked to a specific faculty member, employee or associate of an educational institution.[4]

[17] The research exclusion is to be narrowly construed, and legislative intent must be kept in mind when interpreting the meaning of the word “research” in section 65(8.1)(a). Universities were made subject to the Act  in 2005 to make them more transparent and accountable to the people of Ontario, but section 65(8.1)(a) protects academic freedom because of the importance of research and innovative study programs in universities.[5]

[18] This section applies where there is “some connection” between the record and the specific, identifiable “research conducted or proposed by an employee of an educational institution or by a person associated with an educational institution.”[6]

Parties’ Representations

The university’s representations

[19] The university claims the appellant see access to records “strongly connected” to research.

[20] The university submits that, as part of his initial request, the appellant advanced an argument that although the records requested were respecting or associated with research, the university should nonetheless release the requested records under the Act  because the research project identified in the request had concluded. The university submits there are two separate research projects referred to in the appellant’s request, the first, which concluded in 2016, and the second, which was funded by the 2018 grant[7], which has not concluded. The university submits there is no limit in the Act  on the exclusion of records respecting or associated with research, including time limits or limits on whether the research project has been finalized or whether a study has been published. The university submits the Act  excludes records associated with research, whether the research is at its conception, in the middle of a project, or completed. The university submits that, had the legislature intended for there to be a timeline associated with the exclusion, a timeline would have been included.

[21] The university submits the appellant’s request is for records with a substantial connection to one of two specific, identifiable research projects conducted by an identifiable faculty member and registered in the university’s Office of Research Services’ system. The university states both research projects were funded (in whole or in part) by research grants offered by Public Safety Canada. Given these circumstances, the university submits that any records connected to the research grants identified in the appellant’s request are substantially connected to the two specific, identifiable research projects funded by the research grants.

[22] The university submits the acceptance of each of these proposals for research grant funding by Public Safety Canada is significant support for the view that Public Safety Canada was satisfied each of the research projects proposed by the faculty member were, in fact, research projects that would further the mandate of its research funding programs.

[23] Referring to the appellant’s request, the university submits the appellant seeks access to “any explanatory notes regarding the methodology of the centres’ ‘environmental scan’ and for selecting groups and individuals for the scan’s database, and any lists of names contained within said database.” The university takes the position that research methodology and data collected or generated by research are unique and valuable contributions. Further, the university submits this information represents the design of research projects and the product of those projects and are the intellectual property of the individual(s) who conceived the research project.

[24] The university submits the disclosure of this type of information may have deleterious effects on academic freedom. Specifically, the university submits the dissemination of the information requested through the freedom of information process rather than the traditional process of publishing academic papers or books would affect the faculty member’s academic freedom, competitiveness, intellectual property rights, and livelihood. The university submits the disclosure would affect the faculty member’s ability to publish and disseminate findings in accordance with the norms of her discipline, the terms of her employment with the university and the long-standing traditions of academia. The university refers to section 14.02 of its collective agreement with faculty members, which provides faculty members with “the freedom to: teach and discuss, engage in research and define research questions; pursue answers with rigor; disseminate knowledge.”[8] The university submits academic freedom includes the freedom to choose when and how to disseminate knowledge and information.

[25] The university submits that, if the appellant is interested in the methodology or findings of the research at issue, he could make a request outside of the Act . As examples, the university refers the appellant to its media request process and included a link to the research paper that covers the research project related to part 2 of the appellant’s request.

[26] Finally, the university submits all responsive records would be, on their face, substantially connected to one of two specific, identifiable research projects conducted by a faculty member of the university. As such, the university did not conduct a further search for records, claiming no benefit would be served by conducting a search only to subsequently deny access under section 65(8.1)  of the Act .

[27] The university submits it considered whether the exceptions to the exclusion might apply to records that may be responsive to the appellant’s request. Accordingly, the university submits it conducted a search for any records that would “disclose the subject matter and amount of funding being received with respect to the research referred to in that subsection”, as per the exception to the exclusion at section 65(9). The university submits it located one responsive record, the Excel spreadsheet, but redacted any information that would not fit within section 65(9). The university also considered the application of section 65(10) but found it did not apply.

The appellant’s representations

[28] The appellant submits that, over the past five years, the faculty member has routinely published her “finalized conclusion that 300 ‘hate groups’ are currently operating” in Canada. The appellant notes the faculty member described her findings as a “national crisis” in the media but offered no clarification to the public regarding the names of these alleged hate groups. The appellant submits he and other journalists have been “continuously blocked from ascertaining such crucial information and, most importantly, the public is being kept in the dark about an issue [with] serious safety implications.” The appellant submits the public is entitled to the “undistorted names/number-scan” information regarding the faculty member’s conclusion.

[29] Referring to the university’s claim that the research is still underway, the appellant submits that, given the national security implications, the university cannot make this claim if the faculty member has reported and publicized her findings. The appellant submits the university “cannot enjoy widespread media attention, affect the formation of public policy and instill fear among the public while violating the [Act ’s] principles of transparency, accountability, and public health and safety.” The appellant submits the university, by failing to provide any of the names of the alleged hate groups, has “selectively and distortedly published a fearmongering claim for self-interested reasons.” The appellant submits the names of the groups that make up the published number are inseparable and form a complete picture. As such, the appellant submits the university cannot exclude the names of the groups from the number of the groups and “still provide anything but potentially dangerous disinformation to the public.”

[30] The appellant submits the research exclusion[9] should not be used by taxpayer- funded entities to hide information from public scrutiny. The appellant submits the “undistorted findings” of the faculty member should be published when her conclusion has been widely published already.

[31] With regard to section 65(8.1) in particular, the appellant submits the university’s undistorted names/number-scan information does not constitute research within the meaning of the exclusion. The appellant submits the faculty member has stated her 300- figure as “hard fact” therefore suggesting that her investigation concluded and all “development, testing and evaluation” is done. As such, the appellant submits the information request does not constitute research within the meaning of section 65(8.1)  of the Act .

[32] In addition, the appellant submits the university’s concerns regarding the disclosure of the records are not specific, conclusory, and fail to clarify precisely how the disclosure of the undistorted names/number-scan requested could affect academic freedom or the university’s competitiveness.

[33] The appellant submits the records requested are distinguishable from those the IPC has found to be subject to the exclusion. The appellant refers to Order PO-3576 in which the adjudicator found a survey conducted by Carleton University relating to specific groups of students and faculty did not constitute research because the survey “could not be said to be referrable to the establishment of generalized knowledge or principles.”[10] Rather, the adjudicator found the survey records to be akin to market research, which is not specific to universities. The appellant submits that “similarly, legislators surely intended that heavily slanted ideological pronouncements not be subjected to the specific concerns of academic freedom nor considered generalizable knowledge.”

The university’s reply submissions

[34] In response to the appellant’s claims, the university clarifies the research project that is the subject of part 2 of the appellant’s request has completed. The university states the book entitled Right-Wing Extremism in Canada[11] is readily accessible to members of the public and states it is willing to facilitate the appellant’s access to it.

[35] The university submits the appellant’s request was broader than the “list of names” as indicated in his representations. The university submits the appellant’s request includes a list of the types of records that are clearly research records.

[36] Referring to Order PO-3576, referenced by the appellant, the university notes the IPC adopted the following definition of research from Order PO-2693:

… the meaning of “research” in the context of section 65(8.1)(a) is informed by the remaining words of the section. In particular, the section requires that the research be “conducted or proposed by an employee of an educational institution or a person associated with an educational institution.’ Seen in the context of the purpose of the provision, that is, to protect academic freedom and competitiveness, the use of the word, “conducted or proposed”, and the inclusion of specific references to employees or persons associated with the University, leads me to conclude that “research” must be referable to specific, identifiable research projects that have been conceived by a specific faculty member, employee or associate of the University.

[37] Applying this definition, the university submits the survey information collected internally by the university in Order PO-3576 and used to identify areas of improvement at that university is not analogous to the records requested by the appellant. The university submits the appellant requests information relating to specific research projects generated for “pure academic purposes” including conducting scholarly work, investigations and analysis, writing, editing and/or publishing peer reviewed or non-peer reviewed books, chapters in books, papers in journals and/or papers in conferences. As such, the university submits the records responsive to the appellant’s request would fall squarely within the definition of research in Order PO-2693.

[38] The university submits the appellant’s submissions are essentially disagreement with the findings and/or methodology of the research as a basis to argue the records are not research within the meaning of the exclusion. However, the university submits the appellant selectively identified comments to the media, with context removed, to reflect his claim of “distortions” in the research. The university submits the alleged “distortions” and “misinformation” are addressed in publicly available information.[12] In any case, the university submits it is not supportable to contend that legitimate, published, grant- funded research does not constitute “research” within the meaning of section 65(8.1)  of the Act  if one party disagrees with the findings and/or methodology. The university submits this would be inconsistent with the principles of academic freedom which underscore the exclusion and the forums that exist for the issues the appellant raised.

The appellant’s sur-reply representations

[39] The appellant submits the circumstances in this appeal are novel and unlike other circumstances in which the exclusion in section 65(8.1) was considered. The appellant submits the faculty member’s work is a “political project that is spreading alarmist disinformation within communities across the country.” The appellant notes the fact that the faculty member’s findings have been highly publicized and has “instill[ed] fear in the public about a supposed ‘hate-group’ ‘national crisis’… surely push[es] the names/number scan well outside what lawmakers and this panel intended when it comes to section 65(8.1)’s purpose.”

[40] The appellant notes a core part of the faculty member’s grant mandate was to “ascertain the number of hate groups in Canada.” The appellant submits the faculty member has done so and relayed this information to the media. The appellant submits the faculty member’s reporting distorted the public dialogue and amounts to “dangerous misinformation.” The appellant submits the public cannot decide for itself whether the reporting is accurate without full disclosure of the names and numbers of the alleged hate groups that formed the basis of the faculty member’s findings. The appellant notes the alleged hate groups have not been named and none of the publicly available information provides the information he pursues.

Analysis and Findings

[41] First, I wish to confirm the scope of this inquiry and this order. The only issue before me is whether records responsive to the appellant’s request are excluded from the scope of the Act  under the research exclusion in section 65(8.1) (a) of the Act . Throughout his representations, the appellant alleges academic misconduct on the part of the faculty member. The appellant also claims the faculty member violated the university’s Code of Ethics by releasing her findings publicly without sufficient support. The appellant further alleges the faculty member’s research is political advocacy or racial propaganda. Finally, the appellant raises questions such as when the research will be publicized or whether the faculty member’s comments to the media accord with academic standards and ethics. I confirm I cannot make any determination regarding the faculty member’s conduct, her research or the methodology in which she gathered it.

[42] I reviewed the parties’ representations and arguments regarding the exclusion in section 65(8.1) (a) of the Act . Based on that review and a consideration of the meaning of the term research as it has been adopted by the IPC, I find any records responsive to the appellant’s request amounts to research or has at least some connection to research as that term has been considered in the context of the exclusion and are therefore outside the scope of the Act .

[43] As stated above, the purpose of section 65(8.1) is to protect academic freedom and competitiveness.[13] In this case, I agree with the university that the disclosure of the records responsive to the appellant’s request could have deleterious effects on the faculty member’s academic freedom and competitiveness. I also agree disclosure could reasonably be expected to affect her ability to publish and disseminate findings in accordance with the norms of her discipline, the terms of her employment with the university and the long-standing traditions of academia.

[44] In Order PO-2693, the IPC defined research as “a systemic investigation designed to develop or establish principles, facts or generalizable knowledge, or any combination of them, and includes the development, testing and evaluation of research.” Further, the IPC has found the research must be referable to specific, identifiable research projects conducted or proposed by a specific faculty member, employee or associate of an educational institution.[14]

[45] I reviewed Record D001, which is a funding spreadsheet. Based on my review, I find the portions remaining at issue are excluded from the scope of the Act  under section 65(8.1)(a) because they contain information that has some connection to the research conducted by the faculty member. I find support for this finding in Order PO-3161 in which the adjudicator considered the application of the exclusion to funding information relating to a specific research grant awarded to an identified professor at the University of Western Ontario. Reviewing the funding information before her, the adjudicator found the record “documents the ‘expenditure of research funds and grants in furtherance of research activities,’[15] and accordingly, has some connection to research.” I agree with and adopt this principle for the purposes of the funding spreadsheet before me.

[46] I also agree with the university’s decision not to conduct a further search for responsive records because I accept its position/argument that all records responsive to the appellant’s request would be excluded from the scope of the Act  pursuant to section 65(8.1)(a). It is clear from a plain reading of the appellant’s request and supported by his representations that he seeks access to the research produced pursuant to two specific grants awarded for specific research projects relating to right-wing extremism in Canada.

[47] All that is required for the application of section 65(8.1)(a) is that it is reasonable to conclude there is “some connection” between the record and the specific, identifiable “research conducted or proposed by an employee of an educational institution or by a person associated with an educational institution.”[16]

[48] While the appellant disagrees the exclusion applies, this does not mean he challenges the fact the records responsive to his request respect or are associated with research. In fact, the appellant clearly seeks access to the “undistorted names/number scan”, or the data or research underlying the faculty member’s conclusions. Accordingly, the appellant’s representations clearly acknowledge the records he seeks have some connection to research. Therefore, in light of the wording of the request and the parties’ representations, I find there is “some connection” between a specific field of research and records responsive to the appellant’s request. Accordingly, the responsive records qualify as being “respecting or associated with research” under section 65(8.1)(a).

[49] In addition, I find any responsive records would refer to a specific research project being conducted by a specific faculty member employed by the university. The appellant’s request refers to two specific grants awarded by Public Safety Canada to fund two specific research projects conducted by the faculty member. Therefore, I find records responsive to the appellant’s request would relate to specific, identifiable research conducted or proposed by an employee of an education institution.

[50] Further, I agree with the university that there is no limit in the Act  on the exclusion of records respecting or associated with research, including time limits or limits on whether the research project has been finalized or whether a study has been published. The application of the exclusion requires the information be research only, not that it be ongoing or in process.

[51] Finally, I do not agree with the appellant that the facts in Order PO-3576 are analogous to those before me here. The information responsive to the appellant’s request is the work product and research conducted by a specific faculty member employed by the university in relation to a specific field of research. In my view, this information is not akin to market research in the form of survey information collected internally by the university.

[52] I acknowledge the appellant’s strong disagreement with the faculty member’s findings and disputes the validity of her research. However, the appellant’s disagreement with the faculty member’s findings and methodology are not relevant to my analysis and finding that the records responsive to his request have some connection to the research conducted or proposed by the faculty member. I cannot review the quality or veracity of the faculty member’s findings, research or methodology. The only issue before me is whether the records requested have some connection to a specific field of research being conducted by a specific faculty member employed by the university. I find it does. Accordingly, I find the records responsive to the appellant’s request are subject to section 65(8.1) (a) of the Act .

Exceptions to the Exclusion

[53] Sections 65(9) and (10) create exceptions to the section 65(8.1)(a) exclusion. These sections say:

(9) Despite subsection (8.1), the head of the educational institution or hospital shall disclose the subject-matter and amount of funding being received with respect to the research referred to in that subsection.

(10) Despite subsection (8.1), this Act  does apply to evaluative or opinion material compiled in respect of teaching materials or research only to the extent that it is necessary for the purpose of subclause 49(c.1)(i).

[54] As mentioned above, the university disclosed, under the exception at section 65(9), a portion of Record D001 to the appellant, specifically the subject-matter and the amount of funding associated with the research grants awarded by Public Safety Canada. The appellant does not dispute this disclosure. I have reviewed the record and am satisfied the university met its obligation under section 65(9). Upon review of the parties’ representations and the appellant’s request, I accept the other records that would be responsive to the appellant’s request, such as the names and number-scan information the appellant refers to in his representations, would not contain information relating to funding of the faculty member’s research or any other information captured by section 65(9) beyond Record D001.

[55] Both the appellant and university take the position that the exception at section 65(10) does not apply. I agree this exception is not relevant to the records responsive to the appellant’s request, particularly the specific records the appellant address in his representations, namely, the names and number-scan information relating to the 300 hate groups identified by the faculty member in her research.

Conclusion

[56] I find the university has demonstrated the records responsive to the appellant’s request respect or are associated with research conducted by an employee of or person associated with an educational institution. Further, it appears the university searched and located records that would be disclosable pursuant to the exception in section 65(9)  of the Act . Given these circumstances, I find the records responsive to the appellant’s request, particularly those that form the basis of the faculty member’s findings, are excluded from the application of the Act under section 65(8.1)(a).

ORDER:

I uphold the university’s decision and dismiss the appeal.

Original Signed by:		September 26, 2024
Justine Wai
Adjudicator