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SUMMARY
OF ORDERS/PRIVACY REPORTS |
s.15 |
General
- Given that this is a discretionary exemption, the head has the
discretion to decide to disclose a record even where it has been
published, or where it will be made available to the public, or to
claim the exemption. (Orders #P-42,
P-204)
- This provision does not apply to exempt records which may
be made available at some future date through an alternate access
mechanism; in this case, through discovery procedures in a lawsuit.
(Order #M-467)
ss.(a)
- Section 22(a) [FIPPA] \ section 15(a) [MFIPPA] is unique among
the exemptions contained in this part of the Act. The other exemptions
permit an institution to deny access to the requested records because
of content or potential harm that might reasonably be expected to
result from the disclosure. No harm is listed in this exemption. As a
result, the Commission ruled that the purposes of the Act are key to
the interpretation of this exemption. The Commission stated that this
section should not be applied to indirectly prevent or limit the
public's access to information. The Commission held that the
government cannot enter into a business arrangement with a private
company to provide access where to do so would have the very real
potential of inhibiting the public's right of access. Basing an
individual's right to access on his or her ability to meet conditions
for access determined by a private sector vendor may result in
inequitable access to information held by government. According to
this decision, where an institution has provided its information to a
private sector vendor, the exemption will not apply if the vendor does
not provide a "regularized system of access available to members
of the public generally." In a postscript, the Commission noted
that the search for sources of non-tax revenue must be balanced by the
rights of the public to access information for which it has already
paid. This balancing will determine whether universal access to
government information will be the norm or whether an information
elite will be created and only those who can afford to pay will have
access to government-held information. The Commission stated that this
latter situation would be "unacceptable in an open and democratic
society." (Order #P-496)
- A willingness to provide records to the appellant is not the
equivalent of making the records available to the public under this
section. In order for this exemption to apply, the records must be
published or available to members of the public generally through a
regularized system of access, for example, a public library or a
government publications centre. This exemption was intended to provide
government organizations with the option of referring a requester to a
publicly available source of information where the balance of
convenience favours this method of alternative access. It is not
intended to be used in order to avoid an institution's obligations
under the Act. (Orders #P-327,
P-496, M-315,
M-369, M-383)
- In this case, the Commission found that the balance of
convenience favoured the use of the exemption where an individual
wished access to publicly available transcripts of court proceedings.
(Order #M-383)
- The term "published" means to make known to the people
in general. A purposive approach to this provision requires that the
word "public" be given an expansive definition. In this
case, the advertising brochures from private sector companies were
available to the sector of the public engaged in the entertainment
business and not to the general public. The record must be available
to more than just one sector of the public to satisfy this exemption.
These companies were not public bodies that had a mandate to provide
their advertising copy to the public, nor was it something that they
were in the business of selling to the public. The brochures at issue
in this appeal contained advertising for scoreboard equipment, which
would only be of interest to a very small percentage of the public who
would be in a position to purchase such equipment. (Order #P-204)
- Where the head exercises his or her discretion to not disclose
documents that are otherwise available to the public, the head must
consider the convenience of the requester compared to the institution.
Here, the head improperly exercised his or her discretion when the
head failed to consider this "balance of convenience" test.
The request concerned small parts of larger publicly available
documents. To ask the requester to go a find the part of Hansard or of
a tribunal decision would require the requester to go on a fishing
expedition to find the material the institution thought was relevant
to the request. In this case, the Commission ruled that the balance of
convenience favoured the requester and disallowed the application of
this exemption. (Orders #P-170,
P-729)
- When a head relies on this exemption, he or she has a duty to
provide the requester with a description of the records or information
in question and their specific location (Orders P-204,
P-123, P-124,
P-191, P-204,
P-327, P-454,
P-463, M-314,
M-315, M-383,
P-775, M-729)
- Where the head relies on this provision but fails to inform the
requester of sufficient information, which would enable him or her to
identify the records in question, the exemption does not apply. (Order
#P-463)
- Unreported Divisional Court decisions are available to the public
even though a member of the public would have to search through the
index of proceedings to locate the desired file. (Orders #P-159,
P-191)
- The Courts of Justice Act states that anyone is
entitled, on payment of a fee, to have access to any document filed in
a civil proceeding unless an Act or a court provides otherwise.
Therefore, these documents are available to the public and subject to
this exemption. (Order #P-191)
- In this case, the request was for a list of names of deceased
persons whose estates were administered by the Public Trustee. The
list of names is something only the Public Trustee possessed and the
list itself was not something that was a matter of public record.
Although the information requested could be obtained by checking
documents available to the public in the Surrogate Court offices,
newspapers and elsewhere, only the Public Trustee had the particular
list of names requested. Therefore, this exemption did not apply.
(Order #P-71)
- This exemption applies where the record is a transcript of court
proceedings, which could be obtained by the public from the Provincial
Court Reporters' Office. (Order #P-123)
- The Metropolitan Licensing Commission makes available the
decisions of grievance hearing arbitrators for a fee from the Office
of Arbitration of the Ontario Ministry of Labour. When the institution
advised the requester of this, the exemption applied. (Order #M-295)
- Records consisting of transcripts of trial proceedings, factums,
appeal books, case books, court notices, court forms, an endorsement
and a judgment are available to the public and therefore the exemption
applies. (Order #P-368)
- The Solicitor General's speech given in the House of Commons is
published in Hansard, and as such may be exempt under this section at
the institution's discretion. (Order #P-124)
- Where the ministry makes policies and procedures regarding tax
assessments available through a public office, the ministry should
advise the requester of the specific materials which are so available
by referring the requester to the listing in the Directory of Records
of by providing the list as part of its decision. (Order #P-906)
- The purpose of this exemption is related to matters of
convenience. Where the record at issue is a copy of an entire
published document, the balance of convenience leans in favour of the
institution and the record may be properly withheld. Where the records
at issue constitute only a portion of a much larger document, the
balance of convenience does not favour the institution. In this case,
it would have been necessary for the appellant to search three or more
sources to locate and compile the information which was available from
the institution on one sheet of paper. As a result, the institution
could not rely on this exemption for information that was publicly
available from various sources. (Order #P-729)
- This exemption did not permit the Ministry of Consumer and
Commercial Relations to withhold a microfilm copy of all Business Name
registrations filed on a particular day. The ministry argued that the
exemption applied because each individual registration form was
publicly available for a fee. The Commissioner held that the microfilm
record was a "compendium of registrations filed on any particular
day", and was a different record than the individual registration
forms which were publicly available. (Orders #P-1114,
P-1281, P-1316)
- Where a request was made for a variety of different by-law
charges which were heard by various courts, the balance of convenience
did not favour alternate access through the court system and therefore
the exemption did not apply. (Order #M-773)
- The fact that records are only available to the public at a
specific location is not, in and of itself, an indicator that they are
not available to the public through a regularized system of
access.(Order #P-1183)
- An approach which attempts to recover the actual cost of
providing copies of requested records which are publicly available is
consistent with this section. However, to apply the fee provisions of
the Act, without the attendant obligations of the Act (e.g.,
independent review by the Commission) indirectly prevents the
requester from seeking a review of the fees charge.(Order #P-1183)
- When an institution relies on this section, it has an obligation
to ensure that the information is actually available from the
alternative source. In this case, the institution did not give the
requester any information to indicate that the requested tapes, which
had been aired on television several years ago, were in fact
accessible and/or still accessible from the respective broadcasters.
Hence, the Commission was not satisfied that the information may have
been said to be published. (Order #P-1207)
- In this case the provision was met through a regularized form of
access i.e. an electronic compilation of the assessment roll was
available for a fee. (Order #P-1316)
ss.(b)
- To rely on ss.(b), the institution should have custody or control
of a copy of the record, which it is prepared to publish within the
requisite time period. (Order #P-206)
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OCIPO 