ORDER P-881
Appeal P‑9400257
Ontario Human Rights Commission
NATURE OF THE APPEAL:
This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act). The appellant has requested copies of all records relating to himself, including files and correspondence, from the Ontario Human Rights Commission (the OHRC). The appellant had previously filed several complaints with the OHRC.
The OHRC identified two investigation files relating to the appellant and denied access to the information in them based on the following exemptions:
law enforcement - sections 14(1)(a) and (b), and 14(2)(a)
invasion of privacy - section 21(1)
advice or recommendations - section 13(1).
In appealing the OHRC's decision, the appellant indicated that the OHRC had only identified two investigations, whereas he had made four complaints. He, therefore, raised the adequacy of the search conducted by the OHRC for records responsive to his request.
The issues in this appeal are whether the exemptions which have been claimed apply to the records at issue, and whether the OHRC conducted a reasonable search for records.
A Notice of Inquiry was provided to the appellant and the OHRC. Because the records appeared to contain the appellant's own personal information, and some records also appeared to contain the personal information of other individuals, the Notice of Inquiry raised the possible application of sections 49(a) and (b) of the Act.
Representations were received from both parties. The OHRC's representations include the sworn affidavits of the Acting Freedom of Information and Privacy Co-ordinator (the Co‑ordinator) and the Human Rights Officer (the Officer) involved in the investigation of the appellant's complaints. Following the receipt of representations, the OHRC agreed to disclose a number of records to the appellant. Those records are, therefore, not at issue in this appeal. Further, the OHRC did not provide representations regarding the discretionary exemption in section 14(2)(a), and I will not consider this section further in this order.
The remaining records consist of letters, memoranda and notes, administrative forms and investigation notes. The records remaining at issue and the exemption(s) claimed for each are more particularly described in Appendix "A" to this order. For ease of reference, Appendix "A" assigns consecutive numbers to the records at issue. The second column of Appendix "A" provides a cross-reference to the page numbers assigned by the OHRC.
DISCUSSION:
PERSONAL INFORMATION
Under section 2(1) of the Act, "personal information" is defined, in part, to mean recorded information about an identifiable individual, including any identifying number assigned to the individual and the individual's name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual.
I have reviewed the records at issue. I find that each of them contains the appellant's personal information, which is linked to the appellant by direct identification, or because the information is directly connected to his complaints. Some of the records also contain the personal information of individuals other than the appellant.
Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 49 provides a number of exceptions to this general right of access.
DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION
Under section 49(a) of the Act, the OHRC has the discretion to deny access to records which contain an individual's own personal information in instances where certain exemptions would otherwise apply to that information. The exemptions listed in section 49(a) include both of the exemptions claimed with respect to the records at issue, namely law enforcement (section 14) and advice or recommendations (section 13). In the discussion which follows, I will consider whether the records qualify for exemption under these sections as a preliminary step in determining whether the exemption in section 49(a) applies.
LAW ENFORCEMENT
Sections 14(1)(a) and (b)
The OHRC has claimed these exemptions for all the records at issue.
In order for a record to qualify for exemption under either of these sections, the matter to which the record relates must first satisfy the definition of the term "law enforcement" found in section 2(1) of the Act (Order P-324). It has been previously established that OHRC investigations meet this definition (in Order 89 and many subsequent orders) and I adopt this finding for the purposes of this order.
The purpose of sections 14(1)(a) and (b) is to provide the institution with the discretion to preclude access to records in circumstances where disclosure would interfere with an ongoing law enforcement matter or investigation (Order P-403).
Previous orders have found that in order to qualify for exemption under these sections, the OHRC must establish "a clear and direct linkage" between the disclosure of the specific information at issue and the harm mentioned in the exemption (Order M-202).
I have carefully reviewed the records at issue and have considered the representations of both parties. In its representations, the OHRC indicates that both files are in active case processing at the reconsideration stage. I am satisfied that the following records qualify for exemption under sections 14(1)(a) and (b): 1, 3, 6-13, 16, 18, 20, 22, 24-30, 34, 39, 43-47, 51, 55-58, 60, 62, 64-66 and 68. Accordingly, these records are all exempt from disclosure under section 49(a).
With respect to the remaining records, however, I am of the view that the OHRC has failed to meet the standard established in Order M-202. For this reason, none of the remaining records qualifies for exemption under these sections.
ADVICE OR RECOMMENDATIONS
Section 13(1) of the Act states that:
A head may refuse to disclose a record where the disclosure would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.
It has been established in a number of previous orders that advice and recommendations for the purpose of section 13(1) must contain more than mere information. To qualify as "advice" or "recommendations", the information contained in the records must relate to a suggested course of action, which will ultimately be accepted or rejected by its recipient during the deliberative process.
In Order 94, former Commissioner Sidney B. Linden commented on the scope of this exemption. He stated that it "... purports to protect the free flow of advice and recommendations within the deliberative process of government decision-making and policy-making."
The OHRC relies on this exemption with respect to Records 4, 5, 8, 10, 12, 13, 16, 20, 29-33, 35, 42, 46, 47, 53. I have already found that Records 8, 10, 12, 13, 16, 20, 29, 30, 46 and 47 are exempt under section 49(a), in the discussion of "Law Enforcement", above, and accordingly, I will not consider them in this discussion.
I find that Records 42 and 53 qualify for exemption under this section because they set out a suggested course of action with respect to the OHRC's decision-making mandate as established in the Ontario Human Rights Code.
In my view, Records 5, 31 and 35 contain only statistical information, and Records 4, 32 and 33 do not contain advice or recommendations. Accordingly, I find that these records do not qualify for exemption under section 13(1). As no other exemptions apply to these records, they should be disclosed to the appellant.
To summarize, I have found that Records 42 and 53 qualify for exemption under section 13(1), and are therefore exempt under section 49(a) of the Act.
INVASION OF PRIVACY
The OHRC has claimed that the exemption provided by section 21(1) applies to Records 1, 7-10, 12, 18-20, 23, 24, 34, 38, 39 and 66. I have found that all of these records are exempt under section 49(a), with the exception of Records 19, 23 and 38. Accordingly, I will limit my discussion in this part to these three records.
Record 19 is a facsimile cover sheet from the Respondent's counsel and Records 23 and 38 are postal receipts indicating that correspondence was mailed to various individuals, including the Respondent's counsel. In my view, the information in these records relates to the identified individuals in their employment capacity. Previous orders have held that information about an employee does not constitute that individual's personal information where the information relates to the individual's employment responsibilities or position. I find this to be the case in this appeal. As these records do not contain personal information of individuals other than the appellant, sections 21 and 49(b) cannot apply to them. As I have found that no other exemptions apply to these records, they should be disclosed to the appellant.
REASONABLENESS OF SEARCH
As I indicated above, the appellant states that although he brought four different complaints before the OHRC, the records refer to only two complaint files. He indicates that when he made the additional complaints, the Officer made notes. He believes, therefore, that additional files should exist which contain documentation on the investigation of the additional complaints.
The Act does not require the OHRC to prove with absolute certainty that the requested records do not exist. However, in my view, in order to properly discharge its obligations under the Act the OHRC must provide me with sufficient evidence which shows that it has made a reasonable effort to identify and locate records responsive to the request.
The OHRC's representations indicate that information relating to the two additional complaints made by the appellant does exist and has been incorporated into the other two complaint files that had already been opened. In his affidavit, the Officer acknowledges that the additional two complaints were initiated by the appellant. He confirms that the OHRC had opened only two complaint files and that the additional complaints were incorporated into these two files.
The OHRC's representations state further that similar complaints had been received from other individuals at the same time as the appellant's complaint. In his affidavit, the Co-ordinator states that he reviewed the documentation in these other complaint files and confirms that they contain the same type of information that had been placed in the appellant's files.
Finally, the OHRC indicates that a computer search using the appellant's name was conducted. This search produced only the two files which are at issue in this appeal.
I have carefully reviewed the representations of the parties and the affidavits submitted by the OHRC. I am satisfied that although separate complaint files were not opened in response to the appellant's additional complaints, the information pertaining to them exists and is located in the records which the OHRC has already identified as responsive in this appeal. Accordingly, I am satisfied that the OHRC's search for records was reasonable in the circumstances of this appeal.
ORDER:
I order the OHRC to disclose the following records to the appellant within fifteen (15) days after the date of this order: Records 2, 4, 5, 14, 15, 17, 19, 21, 23, 31-33, 35-38, 40, 41, 48-50, 52, 54, 59, 61, 63, 67 and 69-71.
In all other respects, I uphold the OHRC's decision.
In order the verify compliance with Provision 1 of this order, I reserve the right to require the OHRC to provide me with a copy of the records which are disclosed to the appellant pursuant to Provision 1.
Original signed by: February 28, 1995
Laurel Cropley
Inquiry Officer
APPENDIX "A"
INDEX OF RECORDS AT ISSUE
RECORD
NUMBER(S)
PAGE NUMBER(S)
DESCRIPTION OF RECORDS WITHHELD
IN WHOLE OR IN PART
EXEMPTIONS
OR OTHER SECTION(S) CLAIMED
DECISION ON RECORD
INVESTIGATION FILE 30-382Q
1
14-16
36
Officer's notes
14(1)(a)(b)
21(3)(b)
Do not disclose
2
17
Letter to the appellant from his employer - January 14/91
14(1)(a)(b)
Disclose
3
18
60-64
153-158
Officer's notes
14(1)(a)(b)
Do not disclose
4
21
Record of intake
14(1)(a)(b)
13(1)
Disclose
5
22
Case opening form
14(1)(a)(b)
13(1)
Disclose
6
25
OHRC Questionnaire Form (2 -questions). This is required to be filled out by the appellant when in receipt of a complaint
14(1)(a)(b)
Do not disclose
7
31-35
Five letters to or from Respondent's counsel - February/91
14(1)(a)(b)
21(3)
Do not disclose
8
37
Letter from Respondent's counsel - April 22/91
14(1)(a)(b)
13(1)
21(3)(b)
Do not disclose
9
38-40
42-43
Respondent's questionnaire -
April 25/91
14(1)(a)(b)
21(3)(b)
Do not disclose
10
44-45
Letter from Respondent's counsel - April 26/91
14(1)(a)(b)
13(1)
21(3)(b)
Do not disclose
11
47
Letter from OHRC to Respondent's counsel - May 1/91
14(1)(a)(b)
Do not disclose
12
48-55
68-76
118-119
(duplicates of 125-126)
136-138
Officer's notes
14(1)(a)(b)
13(1)
21(3)(b)
Do not disclose
13
57, 142
Officer's notes
14(1)(a)(b)
13(1)
Do not disclose
14
66-67
Letter from OHRC to appellant with attachment - January 7/92
14(1)(a)(b)
Disclose
15
89
Facsimile transmittal sheet
Dated January 9/92
14(1)(a)(b)
Disclose
16
116
Letter from OHRC to Respondent's counsel - February 21/92
14(1)(a)(b)
13(1)
Do not disclose
17
117
Facsimile transmittal sheet
Dated February 21/92
14(1)(a)(b)
Disclose
18
120-121
(duplicates of 127-128, 130-131 and 270-271)
Letter from Respondent
March 24/92
14(1)(a)(b)
21(3)(b)
Do not disclose
19
122 (duplicate of 129)
Facsimile cover sheet
Dated March 24/92
14(1)(a)(b)
21(3)(b)
Disclose
20
123-124
Record of investigation
14(1)(a)(b)
14(2)(a)
21(3)(b)
13(1)
Do not disclose
21
143-144
Memorandum from Officer to Northern Manager - June 5/92
14(1)(a)(b)
Disclose
22
163
Record of investigation
14(1)(a)(b)
14(2)(a)
Do not disclose
23
163a
Postal receipts dated July 22/93 and July 27/93
14(1)(a)(b)
21
Disclose
24
164
Letter from OHRC to Respondent's counsel - July 19/93
14(1)(a)(b)
21
Disclose
25
166
Officer's notes
14(1)(a)(b)
14(2)(a)
Do not disclose
26
167
Letter from Respondent's counsel - July 27/93
14(1)(a)(b)
14(2)(a)
Do not disclose
27
170
(duplicate of 250)
Draft decision (no date)
14(1)(a)(b)
14(2)(a)
Do not disclose
28
171-172
(duplicate of 251-252)
Officer's/Supervisor's response to parties submissions (disclosure) (no date)
14(1)(a)(b)
14(2)(a)
Do not disclose
29
222
(duplicate of 288)
Case disposition sheet
14(1)(a)(b)
13(1)
Do not disclose
30
223-224
(duplicate of 248-249)
Case plan
14(1)(a)(b)
14(2)(a)
13(1)
Do not disclose
31
225-226
226 - Compliance Unit File Tracking Form. Info. regarding complainant
225 - Head Office Information Sheet outlining the names and addresses of complainants and respondents
14(1)(a)(b)
13(1)
Disclose
32
227
Case co-ordinator's memo - September 1/93
14(1)(a)(b)
13(1)
Disclose
33
229
Facsimile transmittal sheet - October 19/93
14(1)(a)(b)
13(1)
Disclose
34
265-276
Six letters from Respondent's counsel to OHRC
265 - January 4/93
266 - December 18/92
268 - October 19/92
269 - July 3/92
271 - March 24/92
276 - August 24/93
14(1)(a)(b)
21(3)(b)
Do not disclose
35
294-295
294 - OHRC Case Closing Statistical Data Form
295 - OHRC Systems A.D.P./Masterfile Form
14(1)(a)(b)
13(1)
Disclose
36
304
Facsimile transmittal sheet - February 10/94
14(1)(a)(b)
Disclose
37
306
Facsimile transmittal sheet - February 10/94
14(1)(a)(b)
Disclose
38
309a
Postal receipt - March 22/94
14(1)(a)(b)
21
Disclose
39
310-311
(duplicate of 312-313)
Letter from Respondent's counsel - March 18/94
14(1)(a)(b)
21
Do not disclose
INVESTIGATION FILE 30-394Q
40
6-7
Caseload database
14(1)(a)(b)
Disclose
41
8-9
Case Closing Statistical Data
administrative forms
14(1)(a)(b)
Disclose
42
10
Case disposition sheet
14(1)(a)(b)
13(1)
Do not disclose
43
22-26
Letter from Respondent's counsel - August 24/93
14(1)(a)(b)
Do not disclose
44
27-33
Five Letters to or from Respondent's counsel
27 - March 24/92
29 - July 3/93
30 - October 19/92
32 - December 18/92
33 - January 4/93
14(1)(a)(b)
Do not disclose
45
45
Officer's/Supervisor's Response to Parties' Submissions (Disclosure) Form
Officers notes
14(1)(a)(b)
Do not disclose
46
46
Draft decision (no date)
14(1)(a)(b)
13(1)
Do not disclose
47
49-50
Case plan
14(1)(a)(b)
13(1)
Do not disclose
48
51
Postal receipt - July 22/93
14(1)(a)(b)
Disclose
49
52
Memorandum
14(1)(a)(b)
Disclose
50
53
Postal receipt - July 22/93
14(1)(a)(b)
Disclose
51
54-56
127
129-130
137-138
149-151
155-156
158
Officer's notes
14(1)(a)(b)
Do not disclose
52
57
Information sheet
14(1)(a)(b)
Disclose
53
58
Case disposition sheet
14(1)(a)(b)
13(1)
Do not disclose
54
68
File tracking sheet
14(1)(a)(b)
Disclose
55
69-80
Five letters to or from Respondent's counsel
14(1)(a)(b)
Do not disclose
56
123
Letter from Respondent's counsel - July 27/93
14(1)(a)(b)
Do not disclose
57
124-126
Record of investigation
14(1)(a)(b)
14(2)(a)
Do not disclose
58
128
Letter to OHRC from appellant's employer - March 22/93
14(1)(a)(b)
Do not disclose
59
139
Facsimile transmission coverpage
February 9/93
14(1)(a)(b)
Disclose
60
144
Letter from Respondent's counsel - January 4/93
14(1)(a)(b)
Do not disclose
61
145
Facsimile transmission sheets
04/01/93 - April 1/93
14(1)(a)(b)
Disclose
62
146
148
Letters between OHRC and Respondent's counsel -
January 4/93 and December 18/92
14(1)(a)(b)
Do not disclose
63
147
Letter from OHRC to appellant - December 18/92
14(1)(a)(b)
Disclose
64
153-154
157
Officer's notes
14(1)(a)(b)
Do not disclose
65
159-160
Letter from Respondent's counsel - July 3/92
14(1)(a)(b)
Do not disclose
66
161-162
164-165
Officer's notes
14(1)(a)(b)
21(3)(b)
Do not disclose
67
163
Newspaper clipping
14(1)(a)(b)
Disclose
68
171
Questions to respondents
14(1)(a)(b)
Do not disclose
69
172-174
172 - Case Opening Statistical Data Form
173 - Systems & A.D.P. Masterfile Form
174 - Systems & A.D.P. Cross Reference Form
14(1)(a)(b)
Disclose
70
175
Record of intake
14(1)(a)(b)
14(2)(a)
Disclose
71
178-188
Research paper
14(1)(a)(b)
Disclose