Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 112A-1996
August 9, 1996

INQUIRY RE: Reconsideration of a Decision by the Information and Privacy Commissioner with respect to a decision of the Ministry of Finance and Corporate Relations to refuse an applicant access to the records of an audit of the Public Affairs Branch of the Ministry of Municipal Affairs

Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi

1. Factual Background

Order No. 112-1996 was released on July 2, 1996. In it, I made the following statements or assumptions:

With one notable exception, I found the severed records in this case adequately marked to show what records the applicant had received, what records and information he had not received, and what section of the Act the public body had applied to the withheld information. Regrettably, there was a sizeable package of records, Volume 4, which was confusingly marked and for which it was impossible to tell, with any confidence, how the public body had treated the records.

I should also note that the packages of unsevered records provided to me (i.e., the pages highlighted to show the withheld information) appeared to be the Ministry's own internal freedom of information working file. They contained numerous notes from Ministry officials on the merits of various exceptions and showed what appeared to be initial and final attempts at severing the records, including a reminder not to leave notes and unanswered questions on the working file. Public bodies should take care to present a final, properly-marked, and unambiguous version of the severed records to my Office in future. In this case, due to the confusing highlighting and annotations, I have made assumptions on the information severed from the records in Volume 4. I have assumed that information circled or stroked out in pink highlighter was withheld and that all other information in this volume was made available to the applicant, either by viewing the records in person or by receiving copies.
....
Finally, I consider that there are several pages of interview notes in Volume 4 which should be released, in whole or in part. I note that the pink highlighting in the records in Volume 4 was not applied to most interviewees' names, indicating that they were released to the applicant. I therefore find that a second release of this information would not be an unreasonable invasion of the third parties' privacy.

I had sought clarification of the above matters, after the parties had filed their written submissions in the inquiry, by appropriate notice to the parties. Unfortunately, the Ministry was not able to clarify the issues specific to the markings on the record, and I released Order No. 112-1996, July 2, 1996 with this relatively unsatisfactory situation unresolved. After the Ministry received the newly-severed records for release to the applicant, it realized that a covering annotation on how the Ministry had treated volume 4 in particular had not been made by it, while other markings reflected its efforts at a trial severing of the records. In particular, the pink highlighting was its own trial severing but, in fact, none of this information had been released to the applicant, except for his ownpersonal information (released on the basis of a separate request). This was contrary to the assumptions I made and relied on in Order No. 112-1996.

The Ministry asked me to reconsider Order No. 112-1996 on the basis of "a fundamental defect in the adjudication process." Our own inquiry led to the finding that members of my own staff had mislabeled some of the records during the preparation of the materials for review by me. I accept responsibility for this state of affairs and apologize to the Ministry for any undue criticism of its preparation of the severed records for my review.

2. Discussion

The applicant made a submission to me on the issue of reconsideration. He argued that the alleged errors, including the "ambiguous highlighting," were in fact the fault of the Ministry and that I should not reconsider my findings. I respectfully disagree with the applicant's position on this point. In my view, the interests of justice and fairness in relation to this inquiry require a reconsideration of the Order. I made several assumptions about what information had already been disclosed to the applicant, and those assumptions were incorrect.

The reality with respect to volume 4 of the records in dispute is that the Ministry has disclosed nothing to the applicant. I have now re-severed volume 4 on the basis of the same severing principles set out in the body of Order No. 112-1996. I have also reviewed the severing of the first three volumes to ensure that these principles have been applied consistently. One difference from the original Order is that the names and other identifiers of the internal audit interviewees have been severed, except where the individual(s) clearly consented to disclosure of this information. Otherwise, the substance of the Order remains the same as in Order No. 112-1996.

3. Order

I find that the Ministry of Finance and Corporate Relations is required to refuse access to part of the records in dispute under section 22 of the Freedom of Information and Protection of Privacy Act. Under section 58(2)(c), I require the head of the Ministry to refuse access to part of the records in dispute.

I find that the Ministry is not authorized or required to refuse access to part of the records in dispute under sections 15, 21, or 22 of the Act. Under section 58(2)(a), I require the Ministry to give the applicant access to those parts of the records that I have marked for the Ministry to release.

August 9, 1996

David H. Flaherty Commissioner