ORDER M-461
Appeal M‑9400267
Municipality of Metropolitan Toronto
NATURE OF THE APPEAL:
This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act). The Municipality of Metropolitan Toronto (the Municipality) received a request for access to a variety of documents relating to the requester which had been prepared between January 16, 1992 and October 7, 1993. During the mediation stage of the appeal, the request was clarified by the requester as relating to a specific incident and all subsequent related events.
The Municipality identified 346 pages of records and granted the requester partial access, indicating that certain information contained in some records was not responsive to the request. The Municipality relies on the following exemptions to withhold information it views as responsive, to which access has been denied:
advice or recommendations - sections 7(1) and 38(a)
invasion of privacy - sections 14 and 38(b)
The Municipality further indicated that one record, a tape dated April 24, 1992, had been destroyed pursuant to its record retention schedule.
The requester appealed the decision of the Municipality, requesting a review with respect to all records which he was denied access in whole or in part, which includes a review of the Municipality's claim that parts of the records are not responsive to the request. The requester did not appeal the Municipality's decision regarding the non-existence of the April 24, 1992 tape.
Subsequent to its original decision, the Municipality released some portions of the records which it had previously withheld. The records remaining at issue in this appeal may generally be described as worker's compensation documents, labour relations files, various supervisors' notes and an internal review tape transcript. The records at issue are described in greater detail in Appendix "A" to this order. For ease of reference, I have numbered the records sequentially.
In reviewing the records, I note that there is some duplication. Where this occurs, it has been noted on the attached Appendix.
A Notice of Inquiry was provided to the appellant and the Municipality. Representations were received from both parties.
PRELIMINARY MATTER:
RESPONSIVENESS OF RECORDS
The decision of the Municipality indicates that all of Records 9 and 12-43, as well as portions of Records 5, 7, 11 and 47-59, are not responsive to the request.
In the Notice of Inquiry, the Municipality was asked to indicate, for each portion of the record to which the appellant was denied access on the basis of non-responsiveness, why that portion of the record is not responsive to the request. The Municipality made no representations on this issue.
In his representations, the appellant argued that all records in the appeal are responsive to his request and should therefore be released in full.
I have carefully reviewed the records at issue in light of the appellant's request as clarified. I find that the following records or parts of records are not responsive to the request: Records 5, 7, 9, 12, 25-28 (and duplicate Records 29, 32 and 40-43) and 47-59. In addition, I agree with the Municipality's assessment that parts of Record 11 are not responsive to the request with the exception of one portion which I have highlighted in yellow on the copy of this record provided to the Municipality's Freedom of Information and Privacy Co-ordinator with a copy of this order. Those records and portions of records which are not responsive contain information relating to individuals other than the appellant and/or to incidents in which he was not involved. Others are blank forms without any information about the requester. The portions of the records which are not responsive to the request will not be considered in this order.
Records 13-24, 30, 31 and 33-35 (and duplicate Records 36-39), and the highlighted portion of Record 11, however, contain the appellant's personal information and are responsive to his request. Accordingly, I will order the Municipality to issue a decision with respect to those records pursuant to sections 19 and 21 of the Act.
DISCUSSION:
INVASION OF PRIVACY
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 portions of Records 2-8, 10, 11 and 44-59 which the Municipality has withheld from the appellant on the basis of invasion of privacy. In my view, these portions of the records all satisfy the definition of personal information and the personal information they contain is about the appellant and other individuals.
Section 36(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 38 provides a number of exceptions to this general right of access.
Under section 38(b) of the Act, where a record contains the personal information of both the appellant and other individuals and the Municipality determines that the disclosure of the information would constitute an unjustified invasion of another individual's personal privacy, the Municipality has the discretion to deny the requester access to that information.
In this situation, sections 14(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of personal information would constitute an unjustified invasion of personal privacy. Where one of the presumptions found in section 14(3) applies to the personal information in a record, the only way such a presumption against disclosure can be overcome is where the personal information falls under section 14(4) or where a finding is made that section 16 of the Act applies to the personal information.
If none of the presumptions contained in section 14(3) apply, the Municipality must consider the application of the factors listed in section 14(2) of the Act, as well as all other considerations which are relevant in the circumstances of the case.
In its representations, the Municipality indicates that none of the presumptions in section 14(3) apply to the personal information at issue. It submits that some of the information in the records that relates to individuals other than the appellant is unlikely to be accurate (section 14(2)(g)), and that this factor favours non-disclosure of the personal information in the records. In its decision letter, the Municipality claimed that the information was highly sensitive (section 14(2)(f)), which is a factor which favours non-disclosure, however, no representations were provided relating to this factor. The Municipality submits that none of the factors which weigh in favour of disclosure apply in the circumstances of this appeal.
The appellant indicates that he knows the contents of the records at issue. He argues further that the information in the records is unlikely to be accurate (section 14(2)(g)), and that he requires access to records relating to himself in order to ensure their accuracy. As I indicated above, section 14(2)(g) is a factor which favours non-disclosure.
I have reviewed the records at issue and I make the following findings:
None of the presumptions in section 14(3) apply to the information contained in the records.
The Municipality has failed to establish that the information contained in the records is unlikely to be accurate or reliable. Accordingly, I find that section 14(2)(g) has no application.
Portions of the records contain information which may be characterized as highly sensitive within the meaning of the Act, and, therefore, section 14(2)(f) is a relevant factor with respect to this information. I have highlighted these portions in pink on the copy of these records which I have provided to the Municipality's Freedom of Information and Privacy Co-ordinator with a copy of this order.
The remaining records contain information which relates to the identification of individuals the appellant worked with and the incident which he was involved in, and which is the subject of this appeal. These records do not contain information which may be characterized as highly sensitive. Accordingly, section 14(2)(f) has no application.
I have found that none of the presumptions provided by section 14(3) or considerations which favour non-disclosure listed in section 14(2) are applicable to the non-highlighted portions of the records. Accordingly, section 38(b) does not apply to exempt these records from disclosure.
As I have decided that one factor (section 14(2)(f)), which favours non-disclosure, is applicable to the highlighted portions of the records, I find that section 38(b) applies to exempt this information from disclosure.
ADVICE OR RECOMMENDATIONS
The Municipality claims that part of Record 1 is exempt from disclosure pursuant to section 7(1) of the Act. I have reviewed Record 1 and in my view, it contains the personal information of the appellant.
Section 38(a) of the Act gives the Municipality the discretion to deny access to an individual's own personal information in circumstances where any of the exemptions listed in that section would otherwise apply to the information. The exemption mentioned in section 38(a) which is at issue in this appeal is the "advice or recommendations" exemption provided by section 7(1) of the Act. Accordingly, I will now turn to the issue of whether the part of Record 1 at issue qualifies for exemption under that section.
Section 7(1) states that:
A head may refuse to disclose a record if the disclosure would reveal advice or recommendations of an officer or employee 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 7(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.
The part of Record 1 to which the Municipality seeks to apply section 7 consists of factual observations and instructions. It does not contain "advice" or "recommendations" as contemplated in the Act.
Accordingly, I find that the severed portion of Record 1 does not qualify for exemption under section 7(1).
Because the severed portion of Record 1 does not qualify for exemption under section 7(1) of the Act, it is not exempt under section 38(a). Since no other exemption has been claimed for the undisclosed portion of Record 1, and no mandatory exemption applies, it should be disclosed to the appellant.
ORDER:
I uphold the decision of the Municipality to deny access to Records 12, 25-29, 32 and 40‑43, as well as to the portions of Records 5, 7, 11 and 47-59 which are not responsive to the request, with the exception of that portion of Record 11 which is highlighted in yellow on the copy of this record which is being sent to the Municipality's Freedom of Information and Privacy Co-ordinator with a copy of this order.
I order the Municipality to issue a decision pursuant to sections 19 and 21 of the Act within thirty (30) days of the date of this order with respect to Records 13-24, 30, 31, 33-35 and with respect to the portion of Record 11 which is highlighted in yellow on the copy of this record which is being sent to the Municipality's Freedom of Information and Privacy Co-ordinator with a copy of this order.
I uphold the decision of the Municipality not to disclose the personal information which has been highlighted in pink on the copy of the records which are being sent to the Municipality's Freedom of Information and Privacy Co-ordinator with a copy of this order.
I order the Municipality to disclose to the appellant the remaining information within thirty-five (35) days after the date of this order and not earlier than the thirtieth (30th) day after the date of this order.
In order to verify compliance with this order, I reserve the right to require the Municipality to provide me with a copy of the decision which is issued pursuant to Provision 2 and/or a copy of the records which are disclosed to the appellant pursuant to Provision 4.
Original signed by: February 9, 1995
Laurel Cropley
Inquiry Officer
APPENDIX "A"
INDEX OF RECORDS AT ISSUE
RECORD
NUMBER
NUMBER OF PAGES
DESCRIPTION OF DOCUMENT
MUNICIPALITY'S DECISION
EXEMPTIONS CLAIMED
DECISION
WORKERS COMPENSATION BOARD FILE
1
1 page
Memo dated October 5, 1993 re appellant
Partial release
7(1)
Disclose
2
8 pages
Letter dated June 29/93 from East Area Manager, Dept. of Ambulance Services to WCB
Partial release
14(1), 38(b)
Decision upheld
3
3 pages
Internal memo dated May 15/92 from District Supervisor, Dept. of Ambulance Services to file
Partial release
14(3)(d), 14(1)
Decision upheld
4
1 page
WCB Report dated May 15/92 from Metro Toronto Ambulance Dept.
Partial release
14(1)
Decision upheld in part
LABOUR RELATIONS FILE #1
5
5 pages
Incident report of the Dept. of Ambulance Services dated from May 13/94 - May 14/94
Partial release
14(1), 2(f), 3(a),
Non-responsive
Decision upheld in part
6
3 pages
Duplicate of Record 3
Partial release
14(1), 14(3)(d)
Decision upheld
7
4 pages
Supervisor's Log, Operational Support Division dated May 14/92 - May 15/92
Partial release
14(1), 14(3)(a),
Non-responsive
Decision upheld in part
LABOUR RELATIONS FILE #3
8
2 pages
District Supervisor's response to Grievance dated August 2/92
Partial release
14(1)
Decision not upheld
LABOUR RELATIONS FILE #6
9
1 page &
a copy
Internal Memorandum from District Supervisor to East Operations Manager of Dept. of Ambulance Services dated Nov. 3/91
Fully exempted
Non-responsive
Decision upheld
EAST AREA OFFICE FILE
10
1 page
WCB - Employer's Accident Report dated Jan. 4/93 from Dept. of Metro Ambulance Services
Partial release
14(1)
Decision upheld
SUPERVISOR'S NOTES
11
4 pages
Dept. of Ambulance Services, Supervisor's log dated May 15/92
Partial release
Non-responsive,
14(1), 14(3)(a)
Partly Responsive;
Decision upheld in part
12
4 pages
Dept. of Ambulance Services, Supervisor's log dated May 14/92 and May 15/92.
Fully exempted
Non-responsive
Decision upheld
NOTES MADE BY CO-ORDINATOR, HUMAN RESOURCES SERVICES
13
1 page
Internal memo from F.O.I. Co-ordinator to Human Resources Co-ordinator, of Dept. of Ambulance Services dated Oct. 19/93, re: F.O.I. request of appellant
Fully exempted
Non-responsive
Responsive
14
1 page
Internal memo from Commissioner, Dept. of Ambulance Services, re: Privacy Investigations of WCB Claims dated Oct. 20/93
Fully exempted
Non-responsive
Responsive
15
2 pages
Memo from Manager, Corporate Access and Privacy to Commissioner of Ambulance Services re: Privacy Investigations - WCB, dated
Oct. 7/93
Fully exempted
Non-responsive
Responsive
16
8 pages
Investigation report from Information and Privacy Commissioner/Ontario dated Sept. 30/93
Fully exempted
Non-responsive
Responsive
17
14 pages
Investigation report from Information and Privacy Commissioner/Ontario dated Sept. 30/93
Fully exempted
Non-responsive
Responsive
18
6 pages
Letter from Metropolitan Clerk's Dept. to Compliance Investigator, IPC, re: Investigation report, dated Sept. 7/93
Fully exempted
Non-responsive
Responsive
19
2 pages
Metro Toronto Dept. of Ambulance Services Newsletter dated June 30/93
Fully exempted
Non-responsive
Responsive
20
1 page
Notice re: Confidentiality
Fully exempted
Non-responsive
Responsive
21
2 pages
Letter from Commissioner, Dept. Ambulance Services to Deputy Chief Admin. Officer dated Oct. 18/93, re: Draft response to correspondence
Fully exempted
Non-responsive
Responsive
22
1 page
Letter from Human Resources Co‑ordinator, Dept. of Ambulance Services to Manager, Human Rights and Employment Equity Programs dated Oct. 19/93
Fully exempted
Non-responsive
Responsive
23
2 pages
Letter from physician to Deputy Chief Admin. Officer, Dept. of Ambulance Services, dated Sept. 17/93 with notations
Fully exempted
Non-responsive
Responsive
24
4 pages
Draft letter from Deputy Chief Admin. Chief to physician dated Oct. 5/93
Fully exempted
Non-responsive
Responsive
25
1 page
Dept. of Ambulance Services Physician's Report (blank)
Fully exempted
Non-responsive
Decision upheld
26
2 pages
Dept. of Ambulance Services, Modified Work Program
Fully exempted
Non-responsive
Decision upheld
27
1 page
Modified Duty Program, Introduction from Dept. of Ambulance Services
Fully exempted
Non-responsive
Decision upheld
28
1 page
Example letter from District Supervisor, Dept. of Ambulance Services to an employee re: Temp. Modified Duties dated Sept. 30/93
Fully exempted
Non-responsive
Decision upheld
29
3 pages
Duplicates of records 26-28
Fully exempted
Non-responsive
Decision upheld
30
2 pages
Letter from physician to Deputy Chief Admin. Officer, Dept. of Ambulance Services, dated Sept. 17/93
Fully exempted
Non-responsive
Responsive
31
2 pages
Internal memo from Human Resources
Co-ordinator to WCB & Rehabilitation Unit dated Sept. 21/93
Fully exempted
Non-responsive
Responsive
32
1 page
Duplicate of Record 25
Fully exempted
Non-responsive
Decision upheld
33
1 page
Internal memo from Admin. Assistant, East Operations re: physician dated Sept. 20/93
Fully exempted
Non-responsive
Responsive
SUPERVISOR'S NOTES
34
1 page
Internal memo from Supervisor to Admin. Supervisor re: FOI Request dated Nov. 10/93
Fully exempted
Non-responsive
Responsive
35
1 page
Letter to physician from Deputy Chief Admin. Officer dated Oct. 26/93
Fully exempted
Non-responsive
Responsive
36
2 pages
Duplicate of Record 21
Fully exempted
Non-responsive
Responsive
37
1 page
Duplicate of Record 22
Fully exempted
Non-responsive
Responsive
38
2 pages
Duplicate of Record 23
Fully exempted
Non-responsive
Responsive
39
4 pages
Duplicate of Record 24
Fully exempted
Non-responsive
Responsive
40
1 page
Duplicate of Record 25
Fully exempted
Non-responsive
Decision upheld
41
2 pages
Duplicate of Record 26
Fully exempted
Non-responsive
Decision upheld
42
2 pages
Duplicate of Record 27
Fully exempted
Non-responsive
Decision upheld
43
1 page
Duplicate of Record 28
Fully exempted
Non-responsive
Decision upheld
LABOUR RELATIONS SUPERVISOR'S NOTES
44
1 page
Internal Memo from Labour Relations Supervisor re: grievance hearing dated Oct. 7/92
Partial release
14(1), 14(3)(d)
Decision upheld in part
45
1 page
Internal Memo from District Supervisor to Health & Safety Supervisor re: WCB Claim dated May 21/92
Partial release
14(1)
Decision not upheld
46
1 page
Duplicate of Record 44
Partial release
14(1), 14(3)(d)
Decision upheld in part
INTERNAL REVIEW TAPE TRANSCRIPT
47
19 pages
Tape transcript dated Sept. 10 from Dept. of Ambulance Services
Partial release
14(2)(g),
Non-responsive
Decision upheld
SUPERVISOR'S NOTES - JANUARY 16/92 - FEBRUARY 11/92
48
7 pages
Supervisor's notes from Jan. 16/92 - Feb. 11/92
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - AUGUST 6/92 - FEBRUARY 24/93
49
16 pages
Supervisor's notes from Aug. 6/92 - Feb. 24/93
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - FEBRUARY 28/93 - APRIL 6/93
50
15 pages
Supervisor's notes from Feb. 28/93 - April 6/93
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - APRIL 6/93 - MAY 18/93
51
14 pages
Supervisor's notes from April 6/93 - May 18/93
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - MAY 21/93 - JUNE 29/93
52
14 pages
Supervisor's notes from May 21/93 - June 29/93
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - JULY 2/93 - AUGUST 10/93
53
18 pages
Supervisor's notes from July 2/93 - Aug. 10/93
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - AUGUST 13/93 - SEPTEMBER 21/93
54
7 pages
Supervisor's notes from Aug. 13/93 -
Sept. 21/93
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - SEPTEMBER 24/93 - NOVEMBER 1/93
55
14 pages
Supervisor's notes from Sept. 24/93 - Nov. 1/93
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - NOVEMBER 3/93 - DECEMBER 14/93
56
12 pages
Supervisor's notes from Nov. 3/93 - Dec. 14/93
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - DECEMBER 15/93 - JANUARY 25/93
57
21 pages
Supervisor's notes from Dec. 15/93 - Jan. 25/94
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - JANUARY 25/94 - MARCH 13/94
58
14 pages
Supervisor's notes from Jan. 25/94 - March 13/94
Partial release
14(1),
Non-responsive
Decision upheld in part
SUPERVISOR'S NOTES - MARCH 9/94 - APRIL 19/94
59
20 pages
Supervisor's notes from March 9/94 - April 19/94
Partial release
14(1),
Non-responsive
Decision upheld in part