• The Divisional Court ruled, in dismissing a judicial review application, that the Information and Privacy Commission had conducted a fair hearing. The Court noted, in an endorsement, that "[t]he fact that [the municipality] failed to do more than baldly state its position does not detract from the fairness of the Inquiry Officer's conduct of the hearing." (The Corporation of the Township of Maidstone v. Kathleen Starzacher and Information and Privacy Commissioner\Ontario, January 10, 1994, Ont. Div. Ct., Justices White, Dunnet and Jenkins)

• The Ontario Divisional Court ruled that institutions have a duty to provide sufficient submissions to the Commission during an inquiry. The Court stated that "Clearly, sufficient information and reasoning has to be provided to the Officer in order that he or she may make an informed assessment of the reasonableness of the expectations required by [the exemption, in this case]." Where brief submissions are made, the Commission is entitled to determine the matter based on that information. However, the Court also noted that "exemptions are to be approached in a sensitive manner, recognizing the difficulty of predicting future events..." (Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Ont. Div. Ct.))

• The Commission has the power to control the process by which the inquiry process is undertaken. This includes the authority to set time limits for the receipt of representations and to develop rules and procedures for parties to an appeal. It also includes the authority to decline to consider discretionary exemptions which are raised late in the appeals process. Prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeals process. The Commission has stated that, effective March 1, 1993, institutions will be permitted to raise new discretionary exemptions only within a limited time frame--up to 35 days after the appeal has been opened. The initial notice sent out by the Commission specifies the deadline for claiming new discretionary exemptions. The Commission has the authority to decline to consider discretionary exemptions claimed after the deadline. It will do so in "extenuating circumstances" only. (Orders #P-658, M-364, P-345, P-373, P-537, M-409, P-164, P-797, M-420, P-820, P-832, P-952, P-963, P-967, P-969, P-944, P-972, M-521, P-901, P-1101, P-1055, P-1038). In Order M-637, an additional factor regarding the lateness of submitting additional exemptions was that mediation efforts were not adversely affected by the timing of the exemption claim and no representations on issues of access were sought or received at the time the (late) exemption claim was made. Further, in (Order # M-637), given the nature of the records, this delayed claim for another exemption did not prejudice the appellant in any way.

• The fact that subject of the appeal had been altered during mediation and the appeal had been reactivated after a number of years influenced the IPC's decision to allow additional discretionary exemptions after the standard 35 day period expired.(Order #P-1453)

• The Commission ruled that an institution can submit an argument that an appeal is frivolous, vexatious or an abuse of process at any time during the appeal stage. If sustained, such an argument could undermine the legitimacy of the appeal itself.(Order #P-1100)

• In rare circumstances an affected party may be allowed to raise the application of a discretionary exemption to a particular record, even where it is not raised by an institution during the course of an appeal. The affected party cannot, however, rely on the exemption and the Commission has no obligation to consider it. The Commission may consider a new exemption raised by an affected party where it is evident that disclosure would affect the rights of an individual, or where the institution's actions would be clearly inconsistent with the application of a mandatory exemption. (Orders #P-257, P-280, P-391, M-10, M-36, P-500, P-549, P-609, P-706, P-746, P-777, M-409, M-419, P-805, P-806, P-952) In rare circumstances an affected party may be allowed to raise the application of a discretionary exemption, even where it is not raised by an institution during the course of an appeal. The affected party cannot, however, rely on the exemption and the Commission has no obligation to consider it. The Commission may consider a new exemption raised by an affected party where it is evident that disclosure would affect the rights of an individual or another government, or where the institution's actions would be clearly inconsistent with the application of a mandatory exemption. (Order # P-1038)

• The procedures for processing appeals that have been developed by the Commission provide that representations be made in writing. Where an institution has made complete representations that clearly set out its position, the Commission will not depart from its standard procedures to not allow for oral submissions. (Order #P-494)

• An institution cannot require that the Commission hold an oral hearing; the Commission determines its own process for the hearing of appeals. Where the adequacy of a search is at issue, the affidavit of the head or a delegate is what the Commission has determined is necessary to establish the facts. Once the affidavit is reviewed, the Commission will determine whether oral representations are necessary. (Orders #M-59, P-494, P-567)

• Where an institution claims a discretionary exemption by indicating in its submissions that the exemption "may" apply, the Commission may decide not to address that exemption in the inquiry. (Order #M-262)

• The Commission did not allow a third party individual to raise the closed meeting exemption (s.6 MFIPPA) in an appeal regarding access to his personal information. The exemption was not raised by the institution and the rights of the third party would not be seriously jeopardized if the record was released. (Order #M-419)

• Once the appeal process is undertaken and a requester has clarified the parameters of the records requested, the requester cannot at a later date expand upon these parameters.(Order #P-895)

• In this case, because a party to an appeal raised the issue of compelling public interest and requested an oral hearing, it was granted. The case involved allegations of sexual abuse by a teacher. (Order #M-539)

• The requester can not expand the nature of the request during the appeal process. In addition once a requester has narrowed an appeal, the requester can not reintroduce the excluded information later. (Order #P-972) However, it is entirely proper for an requester to reduce or narrow the scope of a request and/or appeal during the appeal clarification and mediation process.(Order #P-1349)

• The Divisional Court found that where there was overwhelming evidence of a reasonable expectation of harm, and no evidence to indicate there was no harm, the Commissioner came to a patently unreasonable answer in finding that there was no harm. (Re Workers' Compensation Board and Mitchinson, Assistant Information and Privacy Commissioner, (1995), 23 O.R. (3d) 31 (Div. Ct.))

• The Commission is not biased in determining an appeal simply because it has made public comments on amendments to the Act under its power to do so in s.59. (Order #M-796)

• An institution has the burden of proof that a request is frivolous and/or vexatious. The institution must provide evidence of a basis for this conclusion. The requester is given an opportunity to respond to this evidence and then the Commission will decide whether the institution has discharged this "preliminary" onus.(Order #M-850) Failure of the appellant to respond to the evidence does not automatically favour the institution's view that the request is frivolous or vexatious.(Order #M-860)

• The Commission considered a discretionary exemption raised later than 35 days after the appeal has been opened because it related to an investigation into criminal activity where disclosure could have serious consequences. (Order #P-1500)

• "The consideration at inquiry of evidence obtained in other appeals is somewhat outside the IPC's normal practice. Nevertheless, prior requests and/or appeals made by an appellant can be relevant to the issues in an appeal. For example, an institution's claim that a request is frivolous or vexatious under section 27.1 of the Act may, in part, be based on prior requests and/or appeals. Because personal safety and bodily integrity are highly compelling interests, it can also be appropriate to consider evidence from other appeals in applying section 20 of the Act.Before evidence from other appeals can be used, it is necessary to provide appellants with detailed information regarding the specific evidence. They must also be given sufficient time to address both the process and the evidence itself in his representations"(Order PO-1940)

ss.(2)

• Excluded records: While the primary purpose of these medical records may be the health of the appellant the fact remains the records relate to her as an employee and are used by the employer for employment-related issues. Any medical issues involving the appellant are inexorably entwined with employment-related issues in the context of these records. (Order#MO-1342)



• The Commission is not bound by the disclosure provisions of the Statutory Powers Procedure Act (SPPA) when considering an inquiry under the Act (. The Commission does not have jurisdiction to review or comment on the disclosure mechanisms which pertain to the mandate of the Criminal Injuries Compensation Board (CICB) and its administrative processes, nor can the Commission make a finding on the sufficiency of the disclosure of records by the CICB beyond the context of the provisions of the Act. (Order #P-1156)

• Applies to personal papers donated by politicians and included in municipal archives. Therefore Act does not apply to such records. (Order #MO-1227)

ss.(4)

• The Divisional Court ruled that this provision authorizes the Commission to have produced to it "any document" [at 4]. The Court also ruled that this provision applies to all parts of the Act in order to allow for a procedural mechanism to ensure that records are provided to the Commission in order for it to decide matters of substance. (Ministry of Health v. Information and Privacy Commission, June 29, 1994, Ont. Div. Ct. (affirmed Order P-623))

• The Commission ordered an institution to produce what were allegedly clinical records covered by s.65(2) [FIPPA], because in its view the words "this Act does not apply" in s.65(2) did not take away the Commission's powers to decide, on a review of the records, whether they were in fact "clinical records." Section 35(5) of the Mental Health Act, in the Commission's view authorized this disclosure to them in order to review the head's decision as to whether the records were in fact clinical records and whether, therefore, they were outside of the purview of the Act. (Order #P-623, affirmed on judicial review, as above.)

• The Commissioner, in this particular case, decided an appeal on the basis of a representative sample of records. (Order #P-314)

• The Commissioner can inspect any record including those records that are subject to the confidentiality provisions of another statute. (Order #P-9)

• The Young Offenders Act (YOA) regulates access to records that identify a young person as having been dealt with under the Act. Because the Information and Privacy Commission is not listed in the YOA as a party that may receive records, the Commission cannot receive the records on an appeal. However, the Commission did rule that it had the right to receive an affidavit that set out the nature of the record and verified that it was a young offender record under the YOA. (Order #P-378)

• The Divisional Court quashed Order P-804 dealing with the IPC's access to 'young offender' records in an appeal. The majority of the Court held that the records may not be provided to the IPC in an appeal so that the IPC could determine whether or not the records were in fact 'young offender' records. The Court found that if an institution provided young offender records to the IPC in an appeal it would be committing an offence under s.38.1 of the Young Offenders Act. That section deals with non- publication of information that would identify a young person as having been dealt with under the Act. Moreover, the Court found that the province could authorize the IPC to obtain the records if it wished to do so under s.44.1(1)(h) of the Young Offenders Act. Given that the province has chosen not to do so, the Court believed it was inappropriate for it to do so. This case deals with records that were clearly 'young offender' records-- thus the question of what to do with records that are more ambiguous is left undecided. The decision has been appealed to the Court of Appeal. (In the Matter of the Young Offenders Act, the Freedom of Information and Protection of Privacy Act and Order P-804 of John Higgins, Inquiry Officer, dated November 29, 1994, June 19, 1996, Ont.Div.Ct., Court File No. 829/94)

• Records that relate to a compliance investigation regarding an alleged breach of privacy are not privileged under this section. The privilege in this provision relates to records provided in an inquiry and a privacy investigation is not an inquiry. Access to the records are therefore governed by the exemptions available in the legislation. (Order #P-404)

• The Commission would be reluctant to entertain an appeal where the appellant is already in possession of the records at issue through legitimate means, since such an exercise would serve no useful purpose. (Order #M-271, M-635)

• Where an appellant's primary concern was that a tribunal did not disclose sufficient information to satisfy the requirements of the Statutory Powers Procedures Act (SPPA), the Commission was only empowered to determine the sufficiency of the tribunal's disclosure under FIPPA. (Order #P-1123)

ss.(8)

• In this case, the Commission received an affidavit during an inquiry that purported to be a consent to the disclosure of sensitive personal information from one individual to another. The Commission stated that it had the responsibility to ensure that the consent was authentic and in these circumstances it was not convinced and as a result did not rely on the affidavit. (Order #P-455)

ss.(9)

• This provision applied to copies of appeal submissions supplied by an affected person to the Commissioner's office which were copied to the institution's FIPPA coordinator. This provision applies to correspondence between the Commissioner's office and a party to the appeal which is exchanged following the inquiry stage of an appeal and which relates directly to the disposition of an appeal or the contents of any records that have not previously been disclosed. (Orders #P-592, P-666)

• Records that relate to a compliance investigation regarding an alleged breach of privacy are not privileged under this section. The privilege in this provision relates to records provided in an inquiry and a privacy investigation is not an inquiry. (Orders #P-404, P-586)

• Where the records at issue were generated during the Commission's mediation or pre-inquiry stage, this section has no application. (Orders #P-537, P-666)

• A note to file describing a conversation between an employee of the institution and the Commissioner's office following the issuance of an Order, which contained no reference to the records at issue in the appeal or to matters of substance relating to an appeal was not exempt under this provision and, because no exemption under the Act applied to it, was ordered disclosed to the requester. (Order #P-592)

• Correspondence between the Commissioner's office and an institution exchanged following the inquiry stage and which related directly to the disposition of an appeal is not privileged under this provision. Such correspondence is nevertheless outside of the purview of the Act (see s.10 [FIPPA] \ s.4 [MFIPPA], Order #P-537). However, correspondence between an institution and the Commissioner's office, which are of a purely administrative nature and do not pertain directly to the substance of an appeal, are not privileged under this section and are within the purview of the legislation. Since no other exemptions under the Act applied to the record, it was ordered disclosed. (Order #P-592)

• Internal institutional memos regarding the disposition of various records resulting from an Order of the Commission are not privileged since they are not correspondence between the institution and the Commission and they were not prepared during the course of an inquiry. Other records of communications between the institution, third parties and the Commission relating to an inquiry are privileged. (Order #P-666)

• It is not necessary that the decision to withhold records referred to in this section be part of the delegation of authority regarding the head's powers. (Order #P-586)

• An appellant is not entitled to obtain access to notes taken by an Appeals Officer during the mediation of an appeal. (Orders #P-537, M-875)

ss.(13)

• In this case the ministry did not indicate whether its representations could be shared with the appellant or not, but upon contact by adjudicator, objected to the disclosure of its representations in their entirety, without any reference to the confidentiality criteria. The ministry's concern was that the appellant may raise additional arguments on the fee waiver issue which the ministry would not have the opportunity to respond. The adjudicator ordered the release of the representations in their entirety, and undertook to issue a modified Notice of Inquiry to the ministry inviting further representations, should the appellant raise additional arguments on the fee issue. (PO-1870_I)

• Representations provided to the Information and Privacy Commissioner/Ontario (IPC) may be shared with other parties to an appeal unless there is an overriding confidentiality concern. The procedure for the submitting and sharing of representations is set out in the IPC document entitled Inquiry Procedure at the Adjudication Stage. "The Inquiry Procedure document states: In its representations, the first party must indicate clearly, and in detail: 1. which information in its representations, if any, the party wishes the Adjudicator to withhold from the second party; and 2. its reasons for this request (see confidentiality criteria below). The document later sets out the criteria for withholding representations, as follows: The Adjudicator may withhold information contained in a party's representations where: (a) disclosure of the information would reveal the substance of a record claimed to be exempt or excluded; (b) the information would be exempt if contained in a record subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act; or (c) the information should not be disclosed to the other party for another reason. For the purposes of paragraph (c) above, the Adjudicator will apply the following test: (i) the party communicated the information to the IPC in a confidence that it would not be disclosed to the other party; and (ii) confidentiality must be essential to the full and satisfactory maintenance of the relation between the IPC and the party; and (iii) the relation must be one which in the opinion of the community ought to be diligently fostered; and (iv) the injury to the relation that would result from the disclosure of the information would be greater than the benefit thereby gained for the correct disposal of the litigation." (Order # MO-1298-I, PO-1896-I)

• "In any inquiry under the Act involving requests for information relating to identifiable individuals, there will most likely be, by necessity, some disclosure of information about that individual (unless, perhaps, the institution refuses to confirm or deny the existence of records under either section 21(5) or 14(3) of the Act). The degree of information sharing, clearly, must be weighed against the fairness of the process in allowing parties to make effective representations on the issues. The inquiry process must not be allowed to be used as a "back-door" means of obtaining the very information sought. Nor should it permit curiosity seekers to obtain information about other individuals to which they would not otherwise be entitled. In my view, these principles, if applicable in the circumstances, provide a reasonable basis for withholding information under criterion (c)"
  
  (Order # PO-1956-I)

• The Ontario Divisional Court ruled that this provision "imposes a mandatory obligation on the Officer to provide the person making the request, and others as specified, with an opportunity to make submissions." The Court found that a party to an inquiry has the right to be told that the Commission is considering that certain records provided by the institution are irrelevant to the appeal and to be provided with the opportunity to make submissions. On a judicial review application, the Court found that the failure of the Commission to advise the parties to the appeal prior to making the determination as to relevancy, and the failure to provide an opportunity to make submissions, was sufficient to overturn the decision of the Inquiry Officer. (Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Ont. Div. Ct.) and Order P-759, applied in Orders M-420, M-423, P-816)
  
  
  
• The Ontario Divisional Court ruled that where a requester changes his/her request for records, the head of the institution and other affected parties should be given another opportunity to make representations. (Lincoln County Board of Education and Information and Privacy Commissioner/Ontario, Ontario Divisional Court, June 20, 1995, Court File No. 289/93, Justices McMurtry, Sanders and Winkler).

• The Ontario Divisional Court accorded the Commission curial deference regarding the appeal process, subject to procedural fairness. In consideration of this provision, the Court held that the process ought not to preclude the Commissioner and his staff from discussing submissions with the parties, including referring to earlier decisions made by the Commissioner. If the Commission had considered not following an earlier decision, it would have been appropriate for it to notify the parties accordingly. However, since it followed precedent, it was not necessary for it to notify the parties that it was doing so. Moreover, the Court ruled that the Commission has the discretion to extend the time for making submissions. (Corporation of the Town of Gravenhurst v. Information and Privacy Commission et al., as yet unreported, November 30, 1994, Ontario Divisional Court, Court File No. 479/92, affirming Order #M-23)

• While the provision states that no person is "entitled" to access to the representations made to the Commissioner, this does not mean that such access is prohibited. The representations of an institution may be disclosed to a requester "in a proper case" where procedural fairness requires such a disclosure. However, disclosure of the representations will be ordered only in exceptional cases and only where reference to the record at issue has not been made. (Orders #P-78, P-164, P-434)

• Even where the request for access to the submission provided during an appeal is directed to the institution, this provision is applicable. (Orders #P-164, P-207, P-345)

• There is no statutory right for an institution other than the one that has responded to an access request to be a party to an appeal; rather, it is the responsibility of the Commissioner or his delegate to consider the circumstances of a particular appeal and determine if any other person should be given the status of an "affected party," based on the necessity or desirability of having those persons participate. The ability of an institution to transfer a request to another institution that has a greater interest means that consultations take place. This ensures that all viewpoints are considered by the institution and that the institution is in a reasonable position to present the government's position as a whole. This approach is necessary in order for the Act to work effectively. (Order #P-395)

• In this case the issue of custody and control of board members' notes had implications beyond the scope of this appeal. As a result, a group representing the chairs of certain provincial agencies, boards and commissions was added as an "affected party" and provided with a opportunity to submit representations. (Order #P-396)

• It is not necessary for the purposes of procedural fairness that the Commission preview proposed order provisions with a party or parties to an appeal before issuing an order. (Order #P-1390)

• Based on the IPC's procedure for exchange of representations, set out in a document entitled Inquiry Procedure at the Adjudication Stage, parties must make submissions on the issue of sharing of representations at the time that their original representations are made. Additional representations on this issue are not permitted without exceptional circumstances, notwithstanding a party's attempt to reserve this right in its original representations. (Order # PO-1781-I)

• Representations provided to the Information and Privacy Commissioner/Ontario (IPC) may be shared with other parties to an appeal unless there is an overriding confidentiality concern. The procedure for the submitting and sharing of representations is set out in the IPC document entitled Inquiry Procedure at the Adjudication Stage. "The Inquiry Procedure document states: In its representations, the first party must indicate clearly, and in detail: 1. which information in its representations, if any, the party wishes the Adjudicator to withhold from the second party; and 2. its reasons for this request (see confidentiality criteria below). The document later sets out the criteria for withholding representations, as follows: The Adjudicator may withhold information contained in a party's representations where: (a) disclosure of the information would reveal the substance of a record claimed to be exempt or excluded; (b) the information would be exempt if contained in a record subject to the Freedom of Information and Protection of Privacy Act or the Municipal Freedom of Information and Protection of Privacy Act; or (c) the information should not be disclosed to the other party for another reason. For the purposes of paragraph (c) above, the Adjudicator will apply the following test: (i) the party communicated the information to the IPC in a confidence that it would not be disclosed to the other party; and (ii) confidentiality must be essential to the full and satisfactory maintenance of the relation between the IPC and the party; and (iii) the relation must be one which in the opinion of the community ought to be diligently fostered; and (iv) the injury to the relation that would result from the disclosure of the information would be greater than the benefit thereby gained for the correct disposal of the litigation." (Order # MO-1298-I)

• Although an Institution had claimed that its representations were confidential, the Commission ordered release of the introductory section describing the history of the request and appeal, generalized references to the records that did not reveal the substance of the records, and additional background information which was non-confidential or which consisted of submissions of law and/or argument. (PO-1780-I)



• The Divisional Court has considered whether the IPC has authority to share the representations of one party with another and found that it could not support the proposition that this section (in the context of the whole legislation) intended that representations be excluded. It was concluded that the Act does not warrant the sealing of representations unless they are otherwise ruled confidential by the Commissioner. Ontario (Solicitor General and Minister of Correctional Services) v. Ontario (Information and Privacy Commissioner) (June 3, 1999), Toronto Doc. 103/98 (Ont. Div. Ct.) (MO-1461-I)

ss.(14)

• Where an individual purports to act as an agent under this section, the Commission must balance the right of the individual to be represented by an agent with the institution's obligation under s.3(3) of Regulation 460 [FIPPA] \ s.2(3) Regulation 823 [MFIPPA] to verify the identity of an individual seeking access to his or her personal information and whether or not the agent is properly authorized to obtain such information. If proper authorization cannot be obtained, the institution may either notify the individual whose personal information is at issue and provide him or her with an opportunity to provide representations prior to any decision regarding disclosure of the records or may deal with the validity of the authorizations as a preliminary matter. In determining whether the institution acted reasonably in refusing to accept certain authorizations, the following factors are relevant: whether the personal information is very sensitive, whether the authorizations preclude the institution from verifying the consent and whether or not the individuals who have allegedly consented have responded to the request for verification made by the institution. Special care would be taken where personal information is being requested about the treatment of vulnerable individuals. Institutions should not assume that requests for personal information by agents are invalid; rather, they should discuss the matter with the individuals involved before determining whether or not to accept the authorizations. (Orders #P-533, M-71, P-455)

• The Commission ruled that when appeals are filed under the Act, the provincial government must speak with one voice. Where a ministry has assumed the responsibility for processing an access request, it is that ministry which should speak for and represent the interests of the provincial government as a whole. With this in mind, the Commission was not prepared to direct that Order P-902 be reconsidered. Therefore the Commission did not allow an additional ministry to respond to the appeal. In light of the sensitivity of the documents, however, (Grandview) the Commission allowed the institution, i.e., MCSS, a further opportunity to make representations. MCSS would be free to consult with the Ministry of the Attorney General. (Order #P-965)