Information And Privacy Commissioner/Ontario

1. Information And Privacy Commissioner/Ontario THE APPEAL PROCESS IN ACTION Robert Binstock, Registrar Leslie McIntyre, Mediator Irena Pascoe, Adjudicator September 14, 2001

3. TOPICS • Welcome and Introductions • Intake • Mediation • Adjudication • Questions • Wrap up Information and Privacy Commissioner/Ontario

4. Intake Information and Privacy Commissioner/Ontario

5. Intake - Screening • Registrar and Intake Analysts have delegated authority to screen out files where: • (a) The matter, on its face, is not within the IPC’s jurisdiction; or • (b) The matter falls within the IPC’s jurisdiction, but the matter, on its face, is one that the IPC believes should not proceed through the appeal or privacy complaint process. Information and Privacy Commissioner/Ontario

6. Intake – Streaming • Registrar streams files into different dispute resolution and adjudicative streams - Intake, Mediation and Adjudication. Information and Privacy Commissioner/Ontario

7. Role of Intake Analyst • Public Contacts – mail, phone and in-person. • Screen out appeals. • Other types of duties: • clarify appeals • explain appeal process • redirect to other government organizations • deemed refusals Information and Privacy Commissioner/Ontario

8. Role of Program Assistant • Intake - open files, request records and appeal fees. • Program support to Intake Analysts, Mediators and Adjudicators. Information and Privacy Commissioner/Ontario

9. Intake – Case Example • Request: All records concerning an Employment Standards claim against requester’s company. • Decision: Partial disclosure. Personal Information denied as compiled as part of investigation into possible violation of law. Copies of IPC orders included. Information and Privacy Commissioner/Ontario

10. Intake – Case Example • Intake: Matter decided before. Wrote to appellant requesting submissions. Included 3 orders on point. • Decision: Appeal was dismissed and screened out as matter had been decided before. FOIC copied on letter to appellant. Information and Privacy Commissioner/Ontario

11. Intake - Statistics IN 2000 : • 20% (173) of all appeals closed (853) were closed at Intake • For appeals closed at Intake 78% were withdrawn, 16% were screened out, and 6% were abandoned. Information and Privacy Commissioner/Ontario

12. Mediation Information and Privacy Commissioner/Ontario

13. Mediation - Streams • An appeal that moves to the Mediation stage, is assigned to one of the following streams: • Regular Appeal; • Straightforward Appeal; or • Reasonable Search Appeal. Information and Privacy Commissioner/Ontario

14. Mediation - Regular • The vast majority of appeals are processed in the Regular stream. • The Mediator contacts the parties, investigates the circumstance of the appeal and attempts to: • Settle all issues in the appeal; or • If not settled, narrow the issues that proceed to Adjudication. Information and Privacy Commissioner/Ontario

15. Mediation – Straightforward • Appeals where the sole issue is a deemed refusal, time extension, transfer or adequacy of decision. • The assigned Mediator also acts as an Adjudicator. • After a short period of mediation, the Mediator has the authority to issue an Order, if not mediated. Information and Privacy Commissioner/Ontario

16. Mediation – Reasonable Search • Appeals where the sole issue is whether the institution has conducted a reasonable search for records responsive to the request. • One Mediator attempts to settle appeal. • Another Mediator is designated as an Acting- Adjudicator, who can issue an Order if not settled. Information and Privacy Commissioner/Ontario

17. Role of Mediator • The goal of the Mediator is to assist the parties: • to fully and clearly understand issues in dispute; • to reach a voluntary, mutually acceptable resolution of some or all of the issues in dispute; and • to reduce the number of records at issue. Information and Privacy Commissioner/Ontario

18. Methods of Mediation • Primary method used is shuttle mediation by telephone i.e. one phone call to one party, then to another party. • Conference calls. • Face-to-Face mediation. • We are increasing our usage of the last two methods due to the real benefits they present to the parties. Information and Privacy Commissioner/Ontario

19. Advantages of Mediation • Each party can explain it’s position. • Retain control by working together. • Issues are clarified, options generated, and agreements negotiated. • Quicker than formal dispute resolution. • Win-win settlement that might not be possible through Adjudication. • Builds trust, understanding and communication between parties. Information and Privacy Commissioner/Ontario

20. Mediation – Case Example • REGULAR APPEALS - Example 1: • An unsuccessful applicant for a job as a police officer, requested his application file. • During mediation, it was clear what he really wanted was to know why he wasn’t hired. • Mediator settled by arranging a meeting between the appellant and the person who interviewed him. Information and Privacy Commissioner/Ontario

21. Mediation – Case Example • REGULAR APPEALS – Example 2: • The appellant requested all records of complaints to Animal Control about the dogs at a specific address. • The Mediator was able to clarify that what he really wanted was to know whether there was more than one complainant. • The institution agreed to tell him the number of complainants and the file was closed. Information and Privacy Commissioner/Ontario

22. Mediation – Case Example • STRAIGHTFORWARD APPEALS: • The appellant appealed a lengthy time extension. • The Mediator was able to settle the appeal when the institution agreed to release records in “batches”, as the were ready, rather than as a whole. Information and Privacy Commissioner/Ontario

23. Mediation – Case Example • REASONABLE SEARCH: • An appellant appealed the municipalities decision that no records existed relating to the removal of trees near his property. • The Mediator was able to determine that what the appellant really wanted was to understand why the trees were removed. • After the Mediator arranged for the appellant to receive an explanation, he agreed to close the appeal. Information and Privacy Commissioner/Ontario

24. Mediation - Statistics IN 2000: • 60% of appeals processed through the Mediation stage were closed within that stage, while 40% proceeded to the Adjudication stage. • For appeals closed at Mediation, 88% were mediated, 6% were withdrawn, 2% were abandoned, and 4% were closed by Order. • 45% (381) of all appeals closed (853) were closed at Mediation Information and Privacy Commissioner/Ontario

25. Adjudication Information and Privacy Commissioner/Ontario

26. Adjudication • Appeals may be steamed to the Adjudication stage either directly from Intake or from Mediation. • At the Adjudication stage, an Adjudicator will conduct an inquiry to dispose of the issues in the appeal. Information and Privacy Commissioner/Ontario

27. Overview of Inquiry Process • Generally an inquiry involves: • Parties submitting written representations (reps) on the issues in the appeal, one party at a time; • Reps being shared with other parties unless there is an overriding confidentiality concern; and • Adjudicator issuing an order disposing of some or all of the issues in the appeal. Information and Privacy Commissioner/Ontario

28. Inquiry - Step 1 • Party with onus (usually institution) proceeds first. • Initial Notice of Inquiry (NOI) sets out the issues in the appeal and seeks reps. • First party has 3 weeks to submit reps. • Adjudicator decides whether to invite reps from the second party, or issue an order. Information and Privacy Commissioner/Ontario

29. Inquiry - Step 2 • Second party (usually appellant) proceeds next. • Same or modified NOI, along with a copy of first party’s non-confidential reps. • Second party has three weeks to submit reps. • Adjudicator decides whether to invite reply reps, or issue an order. Information and Privacy Commissioner/Ontario

30. Inquiry - Step 3 • Adjudicator may send a modified NOI to the first party, along with a copy of the second party’s non-confidential reps. • First party has 2 weeks to submit reply reps. • First party may not raise any new issues in reply. • Adjudicator issues order. Information and Privacy Commissioner/Ontario

31. Sharing of Representations • In their reps, parties must indicate clearly and in detail: • which information in the reps, if any, the party wishes the Adjudicator to withhold; and • its reasons for this request. Information and Privacy Commissioner/Ontario

32. Sharing of Representations • Effective reps can be prepared by: • Preparing a single set of reps; • Highlighting the confidential portions to be severed; • Providing reasons for each severance; • Connecting reasons to IPC confidentiality criteria; • Addressing sharing of reps and attachments, even if everything can be shared; and • Avoiding actual names (use pseudonym e.g. affected person, accused). Information and Privacy Commissioner/Ontario

33. Sharing of Representations • Adjudicator will review reps and, based on the confidentiality criteria, decide which portions (if any) will be shared with the other party/parties. • If Adjudicator does not accept the party’s request for confidentiality, he/she will provide advance notice of the decision to disclose the reps/portions of reps. Information and Privacy Commissioner/Ontario

34. Confidentiality Criteria • Adjudicator may withhold information contained in a party’s reps where: • Disclosure would reveal substance of a record claimed exempt – e.g., quotation from record at issue • The information would be exempt under Acts- e.g., personal information • The information is otherwise confidential – e.g., “Wigmore” four criteria for confidential communication Information and Privacy Commissioner/Ontario

35. Adjudication – Case Example • Order PO-1931 • Intake: Resolved the deemed refusal appeal. • Appellant subsequently appealed the access decision. • Mediation: Narrowed the scope of records and issues in dispute. • Adjudication: Involved all three steps. • Ministry was asked to respond to certain new issues/information raised by appellant. • Narrowed the scope of records and issues in dispute . Information and Privacy Commissioner/Ontario

36. Reconsideration of a Decision • Criteria for reconsideration of order or any other decision: • A fundamental defect in the adjudication process; • Some other jurisdictional defect in the decision; or • A clerical error, accidental error or omission or other similar error in the decision • IPC will not reconsider simply on basis of new evidence being provided. Information and Privacy Commissioner/Ontario

37. Adjudication - Statistics • 35% (299) of all cases closed last year (853) were closed during the Adjudication stage. • Of the appeals that were closed during the adjudication stage; • 74% were closed by order; • 12% settled after the beginning of an inquiry; • 8% were withdrawn; • 4% were dismissed without an inquiry; and • 2% percent were abandoned. Information and Privacy Commissioner/Ontario

38. Adjudication - Statistics • Cases resolved by step: • Step 1: 35% • Step 2: 50% • Step 3: 15%  • Many cases resolved after Step 1 – result: one party never had to make reps. • Most Step 1 cases involved reverse onus – institution never had to make reps. • Tip: Issue more detailed decisions to increase chance of reverse onus. Information and Privacy Commissioner/Ontario

39. IPC Resources • Code of Procedure • IPC Web site: www.ipc.on.ca Information and Privacy Commissioner/Ontario

40. Thank You Questions welcome.