Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 138-1996
December 18, 1996
INQUIRY RE: A request for review of a decision by the Ministry of Attorney
General to refuse a former employee of its Corrections Branch access to records
pertaining to an investigation of workplace harassment
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner (the Office) on August 28,
1996 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of the applicant's two
requests for review of decisions by the Ministry of Attorney General (the
public body) to withhold a variety of records produced during an investigation
of the applicant's alleged misconduct.
2. Documentation of the review and inquiry process
On October 10, 1995 the Ministry received the applicant's request for copies
of minutes, notes, telephone and computer records, tape recordings,
correspondence, memoranda, and facsimile records created or acquired by the
Ministry during its investigation of his alleged misconduct while employed as a
correctional officer.
On March 21, 1996 the Ministry issued its first response by providing the
applicant with access to a number of letters, internal memoranda, a transcript
of the applicant's audio taped interview with the investigators, and other
items. Some information in these records was severed under section 22 of the
Act. In the same response, the Ministry denied access under sections 19 and 22
of the Act to several other records in their entirety, principally the
transcripts of audio taped interviews with the applicant's former fellow
employees and notes made by some of them of their dealings with him. He
requested a review of this decision in late March 1996.
On May 3, 1996 the Ministry provided its second response by denying access
under sections 17(1)(e) and 22 to several more records, including a number of
internal memoranda on the investigation. In mid-May 1996, the applicant
requested a review of this decision as well. During a separate arbitration
process involving the Public Service Employee Relations Commission (PSERC),
which took place during the summer of 1996, the applicant received a copy of an
internal memorandum to a Deputy Minister on the investigation and copies of
transcripts of interviews with some of his former colleagues. As a result, the
applicant agreed to withdraw these records from the scope of the review.
The applicant has also raised the issue of an e-mail message that he believes
was circulated to his colleagues instructing them not to speak to him. He also
said he believed that management had later sent out a second e-mail message
retracting the instructions in the first message. The Ministry could not
locate any such e-mail messages and so informed the applicant.
On August 2, 1996 the Office of the Information and Privacy Commissioner
issued a Notice of Inquiry to the applicant, the Ministry, and the Public
Service Employee Relations Commission as an interested party.
In mid-August 1996 the Ministry approved the release, in full or in part, of a
number of additional records, including a number of internal memoranda on the
investigation. It also provided partial access to some records which it had
not previously located. These consisted of the audio tape of the employee's
own interview with the investigators and portions of an investigator's
handwritten notes of interviews with the applicant and with other employees.
However, the Ministry refused access under sections 19 and 22 of the Act
to the audio tapes of interviews with the applicant's former colleagues and to
the majority of the investigator's notes of those interviews.
In the same response, the Ministry withdrew its application of section 17 to
the records, as well as its application of section 22 to one employee's
interview transcript. The Ministry continued to deny access to all other
records under sections 19 and 22 of the Act.
3. Issues under review at the inquiry and the burden of proof
There are two issues under review in this inquiry. First, has the Ministry
fulfilled its duty under section 6(1) of the Act in its search for the e-mail
messages that the applicant believes existed? Section 6(1) reads:
Duty to assist applicants
6(1) The head of a public body must make every reasonable effort to assist
applicants and to respond without delay to each applicant openly, accurately
and completely.
The Act is silent on the burden of proof in this case, but since the Ministry
is in a better position to address the issue of an adequate search for the
e-mail messages requested by the applicant, I have determined that the burden
in this case rests with it.
The second issue is whether sections 19(1) and 22(1) apply to the remaining
records withheld by the Ministry. These sections read as follows:
Disclosure harmful to individual or public safety
19(1) The head of a public body may refuse to disclose to an applicant
information, including personal information about the applicant, if the
disclosure could reasonably be expected to
(b) interfere with public safety.
Disclosure harmful to personal privacy
22(1) The head of a public body must refuse to disclose personal information
to an applicant if the disclosure would be an unreasonable invasion of a third
party's personal privacy.
....
22(2) In determining under subsection (1) or (3) whether a disclosure of
personal information constitutes an unreasonable invasion of a third party's
personal privacy, the head of a public body must consider all the relevant
circumstances, including whether
(f) the personal information has been supplied in confidence,
...
(h) the disclosure may unfairly damage the reputation of any person referred to
in the record requested by the applicant.
(3) A disclosure of personal information is presumed to be an unreasonable
invasion of a third party's personal privacy if
(g.1) the disclosure could reasonably be expected to reveal that the third
party supplied, in confidence, a personal recommendation or evaluation,
character reference or personnel evaluation,
....
(4) A disclosure of personal information is not an unreasonable invasion of a
third party's personal privacy if
Section 57 of the Act establishes the burden of proof. Under section 57(1),
at an inquiry into a decision to refuse an applicant access to all or part of a
record, it is up to the public body to prove that the applicant has no right of
access to the record or part of the record. In this case, the Ministry has to
prove that, under section 19(1), the applicant has no right of access to the
records in dispute.
Under section 57(2) of the Act, if the records in dispute contain personal
information about a third party, it is up to the applicant to prove that
disclosure of the personal information would not be an unreasonable invasion of
the third party's personal privacy under section 22. In this case, therefore,
the applicant has to prove that disclosure of the information in dispute will
not unreasonably invade the personal privacy of third parties.
4. The records in dispute
The records in dispute consist of a variety of records generated during the
investigation of the applicant's alleged misconduct. They chiefly comprise
transcripts of interviews with approximately 15 former colleagues of the
applicant, audio tapes of interviews with 22 former colleagues, an
investigator's handwritten notes taken during the same interviews, and some
employees' handwritten notes of their dealings with the applicant while he was
employed by the Ministry. The revised Portfolio Officer's fact report, dated
August 16, 1996, item 14, lists the specific records in dispute.
5. The Ministry of Attorney General and PSERC's case (the public
bodies)
The public bodies state that the applicant was employed in a bargaining unit
position in the Ministry's Corrections Branch. A management investigation of
his conduct in the workplace "revealed that he had a pattern of seriously
inappropriate, harassing, and threatening conduct that had significant
detrimental impact on other Corrections Branch employees." He was then
terminated for cause. During subsequent arbitration, the union withdrew its
argument that the applicant "had not conducted himself in a seriously improper
way, and has indicated that it will instead put forward a defence based on
medical incapacity of the Applicant (who is currently under medical care, in
that regard)." (Initial Submission of the Public Bodies, paragraph 2)
The management investigation collected information from 22 fellow employees of
the applicant. On the basis of past behaviour, the public bodies argue that
the applicant "continues to pose a threat to the safety and/or mental or
physical health" of these individuals. Since the allegations against him were
serious, the public body states, there is a higher expectation that he will
harbour ill will against the individuals who complained. Thus the public
bodies argue that the records in dispute should be withheld under section 19 of
the Act in order to protect the safety and mental and/or physical health of
these persons. (Initial Submission of the Public Bodies, paragraphs 3-7)
The public bodies also made submissions on sections 6 and 22 of the Act, which
I will discuss separately below. With respect to the latter section, the
public bodies submit that disclosure of the requested information would be an
unreasonable invasion of the third parties' personal privacy. (Reply
Submission of the Public Bodies, paragraph 17.0)
6. The applicant's case
The applicant made an initial submission on section 22 of the Act. Based on
certain transcript information released to him during the arbitration process,
he argues that the personal information in dispute is in fact his information
since it is about him. The personal information of third parties would be
primarily their names and genders, which are already known to him. (Submission
of the Applicant, p. 4) In his view, the sensitive information already
released to him under the Act makes his current request "a reasonable one."
(Submission of the Applicant, p. 5)
I will discuss below the applicant's detailed submissions on aspects of
section 22. (Submission of the Applicant, pp. 7-13)
7. Discussion
Review of the records in dispute: a workplace harassment investigation
The context for this case only becomes clear upon review of the records in
dispute; this was essentially a workplace harassment investigation. I make
this point at the beginning of my analysis in order to allow readers to make
sense of what follows.
In my view, the present inquiry can be settled as an extension of my previous
Order No. 70-1995, December 14, 1995, and Order No. 71-1995, December 15, 1995.
In both of these cases the media made access requests for various records
concerning harassment investigations. The present inquiry is different in the
sense that it is the subject of the investigation who is asking for the
records, but I conclude that the same principles and findings relied on in the
earlier Orders, or at least an extension of them, should prevail.
In Order No. 70-1995, pp. 7-9, I made the following general statements, which
I intend to follow in the present matter:
It seems to be that in cases of harassment the balancing of competing interests
between openness and accountability and the protection of personal privacy
should be struck on the privacy side of the equation ....
It seems to me that there are certain bright lines that can be drawn with
respect to the disclosure of sexual or personal harassment information to the
general public by public bodies covered by the Act. I think that the
fundamental concern is to protect the integrity of the process that a
complainant sets in motion. A complainant is entitled under section 22 of the
Act to confidentiality for both his or her name and the substance of the
complaint.
The substance of the subsequent investigative report should also be protected
from disclosure, as well as the substance of meetings held by those in
authority to make a decision on what to do about a complaint that is either
substantiated or unsubstantiated. Generally, sections 13, 14, and 22 are
relevant in this connection. I think that the written policies of any public
body should state that this kind of information is collected in confidence for
purposes of section 22(2)(f) and will not be disclosed to third parties in
particular.
With respect to the application of section 22(2)(h) of the Act, I am also of
the view that public bodies should not disclose personal information that may
unfairly damage the reputation of any person(s) referred to in the record
requested by an applicant. The goal of the investigative process is to secure
justice for the complainant, the alleged harasser, and those asked to provide
evidence, and then to facilitate the reintegration of the "offender" into the
work force as a productive member of society.
....
In Order No. 70-1995, p. 6, I refused to release a complaint and the
accompanying investigation report to the media.
Order No. 71-1995, in terms of the present inquiry, largely involved the
application of section 22. I have used segments of this Order below as I
deemed it appropriate to do so.
The meaning of "personal information"
The public bodies helpfully pointed out that the definition of personal
information in Schedule 1 of the Act covers "recorded information about an
identifiable individual, including ... (h) anyone else's opinions about the
individual, and (i) the individual's personal views or opinions, except if they
are about someone else." (Reply Submission of the Public Bodies, paragraph
2.0)
I need to address what these definitions mean in the context of the current
case. According to Schedule 1 of the Act, the applicant's personal information
includes anyone else's opinions about him, meaning in this case his co-workers.
The latter's personal information includes their personal views or opinions,
except to the extent to which they are about the applicant. Thus there is a
strong presumption under the Act, despite the burden of section 22 about
protecting the privacy rights of third parties, of disclosing to the applicant
his personal information as defined in the Schedule. But that is also
qualified by the section 19 exception for disclosures that may be harmful to
individual or public safety.
Section 19(1): The head of a public body may refuse to disclose to an
applicant information, including personal information about the applicant, if
the disclosure could reasonably be expected to
(a) threaten anyone else's safety or mental or physical health, or
....
The public bodies have reviewed my various Orders involving the application
of this section and concluded "that not only would the application of
section 19 in this case be supported on any one of the above lines of reasoning alone,
but that all of them are present in this case, making the application of
section 19 very clear." (Initial Submission of the Public Bodies, paragraph
10) (See Orders No. 28-1994, November 8, 1994 (evidence of potential as
opposed to actual violence); Order No. 28-1994 (medical condition only with no
history of violent behaviour); Order No. 7-1994, April 11, 1994, and Order No.
80-1996, January 23, 1996 (history of threatening behaviour); and
Order No. 39-1995, April 24, 1995 (detailed and convincing affidavit evidence of past
experiences))
In terms of the affidavit evidence presented by the public bodies, I emphasize
the refusal of most of the applicant's fellow employees to allow the release of
their evidence for the management investigation, and the belief of a Labour
Relations Officer involved in the arbitration itself that this request for
access is "forcing the correctional officers to relive their fears and concerns
for their personal safety, and I believe that this fact alone is
re-victimizing." (Affidavit of Lori Bird; Affidavit of Tony Raymond) I regard
this concern of preventing any re-victimization of the applicant's former
colleagues as a critical consideration in this present inquiry. (See Order No.
25-1996, September 17, 1996, p. 4)
Although the applicant replied to the public bodies' submission on section 19,
a number of his points are not relevant to his request for access under the
Act, since they primarily deal with alleged management and arbitration faults.
(Reply Submission of the Applicant, paragraphs A, 1-4) However, the relevant
point is made that the applicant suffered from an illness that has now been
diagnosed and treated, leading to a "dramatic change in the applicant's
disposition today ...."
The applicant harbours no ill will towards these individuals who complained
which led to his dismissal .... It has been a whole year now since the
applicant was dismissed and nothing has happened to these
people, their fears are unjustified. (Reply Submission of the Applicant,
p. 4)
The applicant has also received a number of interview transcripts, and nothing
has happened to these persons. (Reply Submission of the Applicant, p. 5)
The applicant concludes that the public bodies have not proven that a
reasonable expectation of harm exists for the persons interviewed in his
management investigation, whose records have not been released to him. (Reply
Submission of the Applicant,
p. 9)
I have reviewed in camera medical evidence to the effect that the
applicant has been undergoing treatment. I also am aware that he states that
he is not currently a threat to his former fellow employees and that no harm
has come to the five persons whose records were disclosed to him during the
arbitration process.
Because of the sensitive nature of the records in dispute, especially the fact
that they are the records of a workplace harassment investigation, I find that
they should be withheld under section 19(1). I am not at liberty to disclose
the details of past incidents involving the applicant. I wish to be guided by
the record of past performance in acting prudently in a sensitive matter, such
as the present inquiry, rather than relying on promises of reformation that may
not withstand the test of time. My primary concern is for the mental health
and safety of the third parties whose records have not been released to date.
Section 22: Disclosure harmful to personal privacy of third
parties
In light of some general arguments advanced by the applicant, I emphasize that
the fact that an applicant has already obtained certain information and
records, that are also contained in the records in dispute, does not create an
obligation on a public body to disclose the same material to him under the Act.
Thus disclosures under an arbitration process, such as in the present inquiry,
are separate and discrete and not a precedent for similar treatment under the
Act. (See Reply Submission of the Public Bodies, paragraphs 4.1-4.5,
12.0(b), and Order No. 83-1996, February 16, 1996, p. 4) I agree with the
public bodies that in "this case, while most of the interviewees may have
consented or acquiesced to their privacy being invaded for the purpose of
attempting to ensure that the Applicant's dismissal from employment was upheld
at arbitration, they [with one exception] have not consented to disclosure of
their statements under the Act." (Reply Submission of the Public Bodies,
paragraph 4.4) However, it must also be made clear that five interview
transcripts of the public body were released to the applicant during the
arbitration process and thus are not at issue in this inquiry.
Section 22(2): In determining under subsection (1) or (3) whether a
disclosure of personal information constitutes an unreasonable invasion of a
third party's personal privacy, the head of a public body must consider all the
relevant circumstances, including whether
...
(c) the personal information is relevant to a fair determination of the
applicant's rights,
The applicant argues that he has a right to the records in dispute because the
information is about him and thus relevant to a defense of his rights:
It is only fair to the applicant to have the records that have caused
detrimental effects to his life. The employer must be accountable for the
actions they took against the applicant which has ruined his career, damaged
his reputation, affected his livelihood, and has aggravated his mental state.
(Submission of the Applicant, p. 10)
The public bodies reject this contention. In their view, the applicant's
rights have already been considered in the arbitration process, where he was
provided with relevant records at the direction of the arbitrator, and where
there is no longer a case being argued on the merits of his dismissal from
employment. (Reply Submission of the Public Bodies paragraphs 11.0-11.4)
On the basis of Order No. 52-1995, September 15, 1995, the public bodies
further argue that section 22(2)(c) does not support disclosure to the
applicant for the purpose of assessing the fairness of a past determination of
a right: they argue that "once it has been determined that the information
requested is not relevant to a fair determination of an applicant's rights,
other factors tip the balance of the protection of third party personal
privacy." (Reply Submission of the Public Bodies, paragraphs 11.6, 11.7) I
agree with the public bodies in this regard. (See also Alberta Information and
Privacy Commissioner (Robert C. Clark), Order 96-008, July 31, 1996, pp. 6,
7)
Section 22(2)(e): the third party will be exposed unfairly to financial
or other harm,
The applicant denies that this section has any relevance for third parties:
"The applicant is no longer an employee at this workplace and he will not be
returning to it. He is not in a position to unfairly harm any third party in
the records, financially or otherwise." (Submission of the Applicant, p. 11)
The public bodies "strongly" refute the applicant's submission in this
regard:
The fact that the Applicant will not be returning to the workplace does not
mean that he is not in a position to harm the third parties. On the contrary,
there is every reason to believe that the disclosure of the requested
information would unreasonably invade the personal privacy of the employees who
were interviewed by management, by exposing them to harassment or other harm.
(Reply Submission of the Public Bodies, paragraph 9.0)
I agree with the public bodies that the risk of unfair exposure to physical or
mental harm is a relevant circumstance militating against disclosure in this
case. (See Order No. 71-1995, p. 8)
Section 22(2)(f): the personal information has been supplied in
confidence,
The applicant questions whether the records in dispute were actually supplied
in confidence and notes my expectation of as much explicitness as possible with
respect to claims of confidentiality. (See Order No. 28-1994, November 8,
1994, p. 9)
In this case there is no explicit evidence that the witness/interview
statements were provided and received in confidence. The individuals
interviewed should have been told from the outset about confidentiality
guarantees with respect to the collection of any personal information during
the investigation. A matter of this importance should not be presumed.
(Submission of the Applicant, pp. 7, 8)
Since the applicant has received some of the transcripts, he is able to point
out that a number of them contain no recorded promises of confidentiality to
the respondents: "The employees knew the investigation was about the applicant
and that no disciplinary action would be taken against them and they willingly
disclosed information without confidentiality being explicitly stated as a
condition, nor promised by the employer." (Submission of the Applicant, pp. 8,
9)
The public bodies advanced evidence to the effect that "employees who were
interviewed by management supplied their comments to management in confidence."
The two management interviewers informed most of the interviewees, at least at
some point in the interview, that their comments were being received in
confidence. Sometimes this did not occur at the beginning of the interview,
but most individuals were apparently given a promise of confidentiality "before
the audio tape recorder was activated to record the interview." (Affidavit of
Mardy Makowsky, paragraph 3; and Reply Submission of the Public Bodies,
paragraphs 8.0, 8.1)
I regard this as an unsatisfactory state of affairs. If an interview is being
audio taped on the basis of a promise of confidentiality, the latter should be
tape recorded as well, so that the interviewee can be shown to have been given
appropriate notice. I am similarly concerned about the fact that the
Corrections Branch of the Ministry does not have a written policy on
confidentiality for such investigations, since I have given plenty of notice to
public bodies in this regard.
In the end, I do accept, on balance, the argument of the public bodies "that the evidence shows that information provided by the interviewees was in fact supplied in confidence." (Reply Submission of the Public Bodies, paragraph 8.6) I especially recognize that a management investigation of the workplace behaviour of an employee was occurring in the context of the work of a correctional institution, which is part of the law enforcement apparatus of the province, meaning that staff are especially sensitized to issues of confidentiality. The interviews also took place at a site away from the institution itself. Such an expectation of confidentiality is thus a relevant circumstance militating against disclosure. (See Order No. 70-1995, pp. 6, 7)
Section 22(2)(h): the disclosure may unfairly damage the reputation of
any person referred to in the record requested by the applicant
The applicant denies that this section has any relevance, not least because it
is his own reputation that has been damaged: "Any third party referred to in
these records is already known to the applicant and a great deal of sensitive
information has been released to him through his own transcript and the five
other full transcripts received." (Submission of the Applicant, p. 12)
The public bodies seek to argue that such disclosure of some opinions given by
some employees about other employees (not the applicant) could unfairly damage
the reputations of the employees about whom other employees spoke. (Reply
Submission of the Public Bodies, paragraph 10.1) My simple view in this regard
is that the applicant should not be receiving any of the opinions of third
parties about employees other than the applicant.
In Order No. 71-1995, p. 10, I found with respect to the application of this
section that:
The records in dispute contain unsubstantiated allegations against the former
Cabinet Minister, descriptions of events, and names of other persons. Although
the name of the former Cabinet Minister is generally known, and even the names
of some of those who have brought complaints of sexual harassment against him
(on the basis of media reporting to date), disclosure of the records in dispute
in this case and in this forum (under the scope of the Act) would, in my
judgment, unfairly damage the reputation of any person referred to in the
record.
... the contents of the records are of a very sensitive nature and character
for all of those involved. While comparable information may have to be
provided in a court room or during a human rights hearing, I do not think it
would serve the public interest, however defined, by my ordering disclosure
under the Act.
I have already cited above, at the beginning of this analysis, my finding from
Order No. 70-1995 with respect to the application of section 22(2)(h). I am
following this precedent in the present inquiry. (See also Order No. 70-1995,
pp. 6, 7)
Section 22(3): A disclosure of personal information is presumed to be an
unreasonable invasion of a third party's personal privacy if
...
(d) the personal information relates to employment, occupational or
educational history,
The applicant argues that this section is not relevant since the employment
history is his and not the third parties. (Submission of the Applicant, p. 10)
The public bodies implicitly agree with this point, except to the extent that
the information relates to the employment history of any other employee.
(Reply Submission of the Public Bodies, paragraph 14.0) I agree with this
analysis. (See Order No. 70-1995, pp. 6-7; Order No. 71-1995, p. 11) Each
transcript of interviews conducted during the management investigation in fact
contains personal information directly related to the employment history of a
third party.
Section 22(3)(g): the personal information consists of personal
recommendations or evaluations, character references or personnel evaluations
about the third party,
The applicant again argues that this section is not relevant, since the
personal and personnel evaluations, recommendations, and character references
are about him and not a third party: "This is the applicant's own personal
information and employment history." (Submission of the Applicant, p. 11) The
public bodies implicitly agree with this point, except to the extent that the
information relates to the employment history of any other employee. (Reply
Submission of the Public Bodies, paragraph 15.0) I agree with this analysis.
I have previously found that this section does not customarily apply to the
contents of sexual harassment complaints. See Order No. 71-1995, p. 11: "The
contents of the complaints are not what are customarily recognized as personal
recommendations or evaluations, character references, or personnel
evaluations." However, I did accept the application of this section to certain
of the records in Order No. 70-1995, p. 7.
Section 22(3)(g.1): the disclosure could reasonably be expected to
reveal that the third party supplied, in confidence, a personal recommendation
or evaluation, character reference or personnel evaluation,
The applicant again argues that this category largely covers his own personal
information. (Submission of the Applicant, p. 11) The public bodies correctly
submit that the disclosure of information that would reveal the identity of the
person who supplied the personal or personnel evaluations or character
references is a presumed unreasonable invasion of the personal privacy of that
person. (Reply Submission of the Public Bodies, paragraph 16.0) (See
Order No. 131-1996, November 19, 1996, p.7)
The provision of a summary under section 22(5)
Section 22(5) reads as follows:
On refusing, under this section, to disclose personal information supplied in
confidence about an applicant, the head of the public body must give the
applicant a summary of the information unless the summary cannot be prepared
without disclosing the identity of a third party who supplied the personal
information.
The public bodies have advanced a rather ingenious argument on the basis of section 22(5) of the Act. Its basic position with respect to section 22 generally is that any personal information, whether of the applicant or the third parties, must be withheld "if disclosing it would unreasonably invade someone else's personal privacy." In its view, a prima facie limit to disclosure under this section is "where a disclosure of an applicant's own personal information would unreasonably invade the privacy of a third party."
When an applicant's and a third party's personal information are intertwined,
and the third party has supplied the applicant's personal information in
confidence, the Act strikes the balance in competing individual privacy rights
by requiring that public bodies go an extra step, and prepare summaries of the
applicant's personal information, rather than simply refuse access. But the
Act draws the line on the side of protecting the privacy of the third party; if
even a summary would reveal the identity of the third party who supplied the
applicant's personal information in confidence, the applicant does not have a
right to his or her own personal information. (Reply Submission of the Public
Bodies, paragraphs 6.0, 6.1)
In this particular inquiry, the public bodies did not prepare summaries of the
withheld information, because it was also applying section 19 to the records in
dispute. I agree, at least in principle, with the public bodies that they
are not required to provide summaries under this section where another
exception applies to the information that would otherwise go into the
summaries. (Reply Submission of the Public Bodies, paragraph 6.2) In
addition, the applicant has already received summaries as part of the
arbitration process, which "were written with a view to protecting the personal
privacy and safety of the interviewees ...." (Reply Submission of the Public
Bodies, paragraph 6.3) He has also received copies of notes that a union
representative made while reviewing some of the interviews. (Reply Submission
of the Applicant, p. 7)
The audio tapes
The public bodies state that although the applicant received five of the
transcripts of investigative interviews during the arbitration process,
section 19 of the Act "may still be applied to the audio tapes from which those
transcripts were produced, in their entirety." (Initial Submission of the
Public Bodies, paragraph 8)
The public bodies also wish to protect from disclosure an audio tape for one
individual who has actually consented to its disclosure, because there is a
risk of future mental and/or physical harm. (Initial Submission of the Public
Bodies, paragraph 9) I am of the view that the public bodies cannot
override an individual's informed consent to such a disclosure, whatever the
merits of its position, especially when an adult professional has freely made
the decision. Thus I recommend that the Ministry release this audio tape to
the applicant.
The applicant is suspicious that the unreleased audio tapes contain
information not included in the transcripts that he has received. Moreover,
the applicant has placed his representative (his wife) in charge of handling
his personal affairs, so she will be the one hearing the audio tapes. (Reply
Submission of the Public Bodies, p. 6) I am not persuaded of the merits of
this point.
Based on my review of the audio tapes, I am of the view that the transcripts
of the audio tapes are essentially accurate. Moreover, I intend to treat them
in this inquiry like any of other records in dispute and withhold them from
disclosure under sections 19 and 22 of the Act.
Generally, I find that the applicant has not met his burden of
proof under section 22 of the Act.
Section 6(1): The head of a public body must make every reasonable
effort to assist applicants and to respond without delay to each applicant
openly, accurately and completely.
The public bodies state that the only issue under this section is whether its
effort to locate a requested e-mail memorandum was adequate to satisfy the
search aspect of its duty under this section. On the basis of Order No.
30-1995, it argues that the question becomes: "Did the Public Body make every
reasonable effort in its search for the e-mail memorandum that would be
responsive to the Applicant's request?"
On the basis of the description of its search efforts submitted to me and an
accompanying affidavit, I find that the public bodies have adequately searched
for the record sought by the applicant and has therefore met that aspect of its
duty under section 6(1). I further agree with the public bodies that:
the Public Body met its search duty even though it did not believe that the
requested record existed. The management of the [correctional centre] state
that there is only one person who would have sent such a message, and that
person confirms that he did not ever send such a message to staff. (Initial
Submission on Section 6(1); and Affidavit of Lori Bird)
8.
Order
I find that the Ministry of Attorney General has adequately searched for an
e-mail record sought by the applicant and has therefore met that aspect of its
duty under
section 6(1).
I find that the Ministry of Attorney General is authorized to refuse access to
the records in dispute under section 19(1)(a) of the Act. Under
section 58(2)(b), I confirm the decision of the Ministry of Attorney General to refuse
access to the records in dispute to the applicant.
I find that the Ministry of Attorney General is required to refuse access to
all of records in dispute under section 22 of the Act. Under section 58(2)(c),
I require the head of the Ministry of Attorney General to refuse access to the
records requested by the applicant.
December 18, 1996
David H. Flaherty
Commissioner