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Do you think it's an important 'right' that you can obtain "the personal opinions or views of an individual employed by a government institution given in the course of employment" …as it relates to you?
Yes
51%
 51%  [ 40 ]
No
48%
 48%  [ 38 ]
Total Votes : 78

Author Message
don muntean





Joined: 07 Sep 2006
Posts: 2262
Reputation: 34.9Reputation: 34.9Reputation: 34.9
votes: 8
Location: Saskatchewan

PostPosted: Sat Dec 02, 2006 5:14 pm    Post subject: Reply with quote

Mac wrote:
Go get 'em, Don. My experience with Human Rights Commissions isn't extensive but from what I've seen, they're really good at drawing salaries and that's about it... :roll:

-Mac


...you bet and - yer right! :roll:
don muntean





Joined: 07 Sep 2006
Posts: 2262
Reputation: 34.9Reputation: 34.9Reputation: 34.9
votes: 8
Location: Saskatchewan

PostPosted: Tue Dec 05, 2006 12:40 pm    Post subject: Reply with quote

Here is the Report - it is 22 pages - but not all too difficult to follow:

[note: the copy-n-paste negated the formatting - the .pdf link follows this copy-n-paste - you may want to read this at the OIPC website - where the formatting [such as paragraph breaks] is intact

Date: November 29, 2006 File No.: 2004/023
SASKATCHEWAN
OFFICE OF THE
INFORMATION AND PRIVACY COMMISSIONER
REPORT F-2006–004
Saskatchewan Human Rights Commission
Summary: Two Applicants jointly applied for a copy of the file created by the
Saskatchewan Human Rights Commission (the Commission) during its
investigation of the Applicants’ human rights complaint. The Commission
released portions of the file to the Applicants but withheld the remainder
citing sections 15(1)(c) and 17(1)(b) of The Freedom of Information and
Protection of Privacy Act as its authority to do so. The Commissioner
found that some third party personal information and
consultative/deliberative material was rightfully withheld, but he
recommended release of many of the withheld documents in full or in part.
Statutes Cited: The Freedom of Information and Protection of Privacy Act [S.S. 1990-91,
c. F-22.01 as am], ss. 7, 12(1)(b), 15(1)(c), 17(1)(b), 17(2), 24, 29, 31
Authorities Cited: Saskatchewan OIPC Reports F-2006-003, F-2004-006, F-2006-001, F-
2006-002, Report F-2004-001, F-2005-006; Alberta IPC Order F2004-
026; Ontario IPC Order MO-1487, Order M-64
Other Resources Cited:
Ontario Ministry of Government Services, Access and Privacy Office.
Freedom of Information Guidelines available online
http://www.accessandprivacy.go.....line.html;
Co-published by Elizabeth Wilcox and Alberta Queen’s Printer, The
Annotated Alberta Freedom of Information and Protection of Privacy Act,
January 2005 Update; Government of Alberta. Freedom of Information
and Protection of Privacy Guidelines and Practices 2005 available online
http://foip.gov.ab.ca/resource...../index.cfm
REPORT F-2006-004
2
I BACKGROUND
[1] Two Applicants jointly submitted a human rights complaint to the Saskatchewan Human
Rights Commission (“SHRC” or “the Commission”) for investigation.
[2] Shortly after receiving notification of the Commission’s decision to dismiss their
complaint, the Applicants wrote the Commission requesting the following:
We are requesting all information and records accumulated and generated
during the life of this file – thus we are requesting all materials which pertain to
ourselves within this file – such as [but not limited to] investigator’s notes etc.,
information gathered from investigative requests for information etc., additionally
we are seeking all inter-office communications memorandums – as well as all
third party communications memorandums and we request all information
relating to ‘opinions’ collected – regardless of sources they were collected from.
Where records or information are severed from SHRC’s FOIPP response – we
are entitled to the balance of the information and records – responsive to our
reuest.
In the event of a non-disclosure of information or records – severing notations –
citing ALL relevant sections of the FOIPP Act relied upon in the severing of the
information or records must be supplied [meaning if there be multiple
exemptions applicable to information or records severed – we must be provided
all of them] – additionally – we request that SHRC place all severing notations
on each record severed and on each specific area in a record where information
is severed.
[3] The Commission responded with a letter informing the Applicants of its decision to
extend the response deadline by 30 days.
[4] Within the extended time period, the Commission explained the following to the
Applicants:
Your application for access has been processed. You requested access to your
entire files. The portion of the record that has been cleared for access is
attached.
However, in accordance with section 8 of The Freedom of Information and
Protection of Privacy Act, some of the documents have been deleted for the
following reasons:
1. Information was gathered with respect to a lawful investigation,
pursuant to section 15(1)(c) of the Freedom of Information Act [sic];
and
2. The information would disclose internal consultations and
deliberations pursuant to section 17(1)(b)(i) of the Freedom of
Information Act [sic].
If you wish to have this decision reviewed, you may do so within one year of this
notice. To request a review, you must complete a “Request for Review” form
which is available at the same location where you applied for access. Your
REPORT F-2006-004
3
request should be sent to the Information and Privacy Commissioner at 1874
Scarth Street, Regina, Saskatchewan S4P 3V7. …
[5] In the Applicants’ Request for Review, the Applicants listed several reasons for the
request: refusal of access, lack of reply to application, and disagreement with extension
of the 30 day response period.
II RECORDS AT ISSUE
[6] The Commission provided our office with an Index of Records revealing responsive
material consisting of 485 pages, indicating 69 of those pages were released to the
Applicants. The record is comprised mostly of witness statements, interview guides, the
Commission’s internal Note and Case Reports, emails, handwritten notes, letters,
resumes, questionnaires, memorandums, fax cover sheets, and posters. In review of the
records, I, however, noted the following:
1. Pages 1-7 & 12 on the Index of Records were created after the Applicants’
request for access was submitted and would not be relevant;
2. “No reason” was cited by the Commission on the Index of Records
corresponding to pages 404 and 428;
3. Multiple copies of some documents were included [e.g. page 81 is the same as
93; 3 full copies of the same Case Report (62-72, 83-92, & 100-109)]; and
4. Across from pages 444-445 in the Index of Records is the following notation:
“Copy provided see 429-430”.
After taking into account the above, the record only comprises 264 pages.
III ISSUES
Has the Commission met the implied duty to assist?
Did the Commission properly apply section 15(1)(c) of the Act to the records withheld?
Did the Commission properly apply section 17(1)(b) of the Act to the records withheld?
Did the Commission properly apply section 29 of the Act to the records withheld?
Did the Commission meet the requirements of section 7 of the Act when it provided notice
to the Applicant within the time extension?
Was the Commission’s extension of the response deadline in accordance with the criteria
set out in section 12(1)(b) of the Act?
REPORT F-2006-004
4
IV DISCUSSION OF THE ISSUES
[7] In our Report F-2004-0061, I determined that the Commission is a “government
institution” for purposes of The Freedom of Information and Protection of Privacy Act
(the Act). As such, the Act applies to the Commission.
[8] In its submission, the Commission raised a preliminary matter. That is, whether or not
the failure of the Applicants to make use of an alternate access process unique to the
Commission may somehow prejudice that individual’s right of access under the Act. The
relevant portion of the Commission’s submission is as follows:
In considering objects and purposes of the Act, in your Report 2004-003, you
recognize that the underlying objective to freedom of information legislation is
full disclosure and openness of agencies to public scrutiny (¶¶5-11). The
procedure under the Code has a very similar objective and makes extensive
provision for the release of information integral to the investigation. When I
dismiss a complaint, a complainant has the right to have a tribunal member
review my decision under section 29.4 of the Code. When the Complainant seeks
such a review, I must provide a copy of the record to both the complainant and
the review tribunal. Section 14(1) of the Code Regulations defines the record as
including “all witness statements and documents that could comprise evidence at
an inquiry.” This is precisely what is exempted in this case under section
15(1)(c). I believe the disclosure under this process provides the openness and
transparency of action that is at the root of freedom of information legislation.
Had the applicants wished to know all of the information that lead to the
determination against them they could have sought a review under section 29.4
but chose not to do so. Furthermore, as is my usual practice, the applicants were
sent a letter detailing how to go about applying for a review along with the
necessary application form. (See page 48 in Index of Records).
Freedom of Information and protection of privacy are joint objectives in the same
legislation. It my view, when the applicants fail to avail themselves of the
procedure that allows for full disclosure and transparency within the purposes for
which the records were created, the privacy interests of those through whom the
records have been created must be taken into account. …
[Emphasis added]
[9] In rebuttal to the Commission’s above noted submission, the Applicants offered the
following:
The commissioner’s attempted transfer of our access rights to the “code” –
clearly bears witness to the commissioner’s illusory ‘overriding jurisdiction’
claims.

…Had the applicants wished to know all of the information that lead (sic) to the
determination against them they could have sought a review under section 29.4
but chose not to do so…
1 At paragraph [63]
REPORT F-2006-004
5
Well considering everything that happened is it any wonder that we ‘chose not to
do so’ – notwithstanding that – who is going to file any appeal without seeing any
of the information first….
[10] In our Report F-2004-006 I considered a similar argument at paragraph [22] advanced
instead by the Applicant in that case as reproduced below:
The Applicant has asserted that the Commission will be obliged to grant access to
the Applicant in any event by reason of procedural provisions of the
Saskatchewan Human Rights Code and the Saskatchewan Human Rights Code
Regulations. With respect to this argument, the possibility that responsive
documents may be disclosed in the future through some alternative process is not
relevant to our review of whether a government institution has properly applied
the discretionary exemption in the Act.
[11] At paragraph [18] of our Report F-2006-002, I clarified that “[t]he review process under
the Act is independent of any other proceedings that may provide access to documents.”
[12] I do not agree with the Commission’s reasoning that because the Applicants did not
initiate an appeal through the Commission and thereby trigger a right to see their file they
forfeited their right to seek access under the Act.
Has the Commission met the implied duty to assist?
[13] In order to meet the implied ‘duty to assist’, a government institution must respond
openly, accurately and completely to the Applicant. (Saskatchewan OIPC Reports F-
2004-003, [12] to [15]; F-2004-005, [19]; F-2004-007, [13] to [17]; F-2006-001 [96])
[14] On February 3, 2004, the Commission responded to the Applicants’ request. Its response
is as follows:
Your application for access has been processed. You requested access to your
entire files. The portion of the record that has been cleared for access is
attached.
However, in accordance with section 8 of The Freedom of Information and
Protection of Privacy Act, some of the documents have been deleted for the
following reasons:
1. Information was gathered with respect to a lawful investigation,
pursuant to section 15(1)(c) of the Freedom of Information Act [sic];
and
2. The information would disclose internal consultations and
deliberations pursuant to section 17(1)(b)(i) of the Freedom of
Information Act [sic].
If you wish to have this decision reviewed, you may do so within one year of this
notice. To request a review, you must complete a “Request for Review” form
which is available at the same location where you applied for access. Your
request should be sent to the Information and Privacy Commissioner at 1874
Scarth Street, Regina, Saskatchewan S4P 3V7. …
[Emphasis added]
REPORT F-2006-004
6
[15] In an initial letter to the Applicants dated January 16, 2004, the Commission provided the
above address for our office as well. The relevant portion of the Commission’s letter is
as follows:
If you wish to request a review of this delay, you may do so within one year of this
notice. To do so, please complete a “Request for Review” form, which is
available at the same location where you applied for access. Your request should
be sent to the Information and Privacy Commissioner at 1874 Scarth Street,
Regina, SK S4P 3V7.
[Emphasis added]
[16] As evident in both cases, the government institution provided an incorrect address for our
office to the Applicants.
[17] Providing inaccurate contact information for our office to an applicant may interfere with
the individual’s attempts to request a review of the matter by our office. The government
institution is responsible to provide accurate information with respect to applicants’ right
to request a review.
[18] We identified an additional concern upon examination of the Index of Records provided
by the Commission to our office during the review process. In the Index of Records, the
Commission lists additional discretionary exemptions [sections 22(a) and 31(2) of the
Act] not earlier cited in its correspondence in its formal response to the access request
from the Applicants. We informed the parties of the following:
We refer both parties to the following ‘reminder’ that appeared in the September
2004 issue of the Saskatchewan FOIP FOLIO:
We remind government institutions and local authorities that it is
important to cite all relevant mandatory and discretionary exemptions
when they respond to an access request. We have encountered a number
of cases where the public body decides to raise a number of new
exemptions once our office undertakes a formal review of their decision to
withhold a record. This is unfair to the applicant.
Our practice is that we will not normally consider a new discretionary
exemption once we commence our review unless the public body can
demonstrate that this will not cause undue delay to the applicant and that
it will not prejudice the applicant.

If either the Commission or the Applicants wish to make any submissions with
respect to the issues in this review, we request that such submissions be provided
to our office prior to February 1, 2005.
We enclose a copy of the Helpful Tips document to assist the parties in preparing
their written submission.
[19] The Commission made no further representations on this question.
REPORT F-2006-004
7
[20] In our Report F-2005-006, I commented on the inappropriateness of this practice as
follows:
[5] The government institution raised an additional discretionary exemption
during the review process. In accordance with our interpretation of
section 7 of the Act, discretionary exemptions should be identified in the
institution’s original response to the Applicant, not during a formal review
by our office.
[21] I will not consider sections 22(a) and 31(2) of the Act in the circumstances. Though not
raised in its formal response to the access request by the Commission, I will nevertheless
consider the applicability of section 29 of the Act as it is a mandatory exemption.
[22] In light of these circumstances, I conclude that the Commission did not meet its duty to
assist the Applicants in this case.
Did the Commission properly apply section 15(1)(c) of the Act to the records withheld?
[23] The applicable clause of section 15 is as follows:
15(1) A head may refuse to give access to a record, the release of which could:

(c) interfere with a lawful investigation or disclose information with
respect to a lawful investigation;
[24] In order for section 15(1)(c) to apply, the investigation undertaken by the Commission
must qualify as a lawful investigation under that section. In our Report F-2004-006
(paragraph [31]), I determined that investigations undertaken by the Commission qualify
“for purposes of section 15(1)(c) of the Act.”
[25] The Commission presented the following arguments for its reliance on section 15(1)(c) of
the Act:
The records that the applicants seek released have been compiled pursuant to an
investigation into a complaint filed with the Commission by the applicants. The
release of these documents would not interfere with this investigation because
the investigation is complete. I have already dismissed the complaint and issued
my reasons. For those documents indicated in the index, I rely primarily on the
second part of section 15(1)(c), which allows me not to disclose information
with respect to a lawful investigation.
I accept that in order to justify the refusal the burden is on me to establish:
a) That the records were gathered pursuant to a lawful investigation; and
b) That the release of the record would disclose information with respect to a
lawful investigation.

We submit that to release any of these materials would be to disclose
information that is integral to the lawful investigation of the applicants’
complaint.

REPORT F-2006-004
8
…All of the witnesses in this case, other than the applicants themselves, provided
us with information in cooperation with a human rights investigation. It is fair to
say that they cooperated with us because of the operation of the law and not
because of a personal interest in the applicants’ human rights. Some of the
statements indicate that the witness giving the statement feels a sense of
harassment by the applicants. It is not within the purview of our work to
determine whether this fear is based on reality. However, suffice it to say that
these witnesses, who did not choose to come into conflict with the applicants,
would not now wish their statements and corporate documents released to the
applicants for any purpose other that that for which they were originally
gathered. In my view, taking the privacy interests of others into account is a
legitimate purpose that is not improper or arbitrary.
This objective of protecting others is consistent with the first part of section
15(1)(c), which allows me to exempt records, the release of which would interfere
with an investigation. I note that this section does not refer only to the
investigation to which the records relate, but an investigation. When we ask
witnesses to co-operate with us we make them aware of the fact that their
assertions and their private corporate and other documents may be subject to
public scrutiny within the adjudicative process. However, it would be much
harder to get the cooperation of witnesses if we had to make them aware that
anything they might provide us with could be scrutinized outside the human rights
process and even after the complaint process was completed. I believe this would
leave potential witnesses feeling very vulnerable and uncooperative. For this
reason, disclosure of evidence would interfere with other investigations.
[Emphasis added]
[26] The Commission is arguing that release of the records would “interfere with a lawful
investigation” but also that it would “disclose information with respect to a lawful
investigation”.
[27] In our Report F-2006-001 at paragraph [41], I explained that “[w]e view both parts of
section 15(1)(c) of the Act to denote the same meaning of lawful investigations. If the
legislature had intended a different meaning, then different words would have been used.
The two parts of the subsection will only apply if there is an active investigation
underway.”
[28] As the Commission has confirmed that its investigation has long been concluded, I find
that section 15(1)(c) of the Act does not apply to any of the withheld records in this
present case.
Did the Commission properly apply section 17(1)(b) of the Act to the records withheld?
[29] The applicable provision of the Act is as follows:
17(1) Subject to subsection (2), a head may refuse to give access to a record that
could reasonably be expected to disclose:

(b) consultations or deliberations involving:
(i) officers or employees of a government institution;
REPORT F-2006-004
9


(2) This section does not apply to a record that:

(b) is an official record that contains a statement of the reasons for a
decision that is made in the exercise of a discretionary power or an
adjudicative function;
[30] The Commission applied section 17(1)(b) of the Act to 71 documents. To determine if
the exemption applies to any of these records or parts thereof, firstly, I need to revisit the
criteria for determining what constitutes “consultations” or “deliberations” under this
provision.
[31] In our Report F-2004-001, I determined that,
[12] A “consultation” occurs when the views of one or more officers or
employees of a government institution are sought as to the
appropriateness of a particular proposal or suggested action. (Alberta
Order F2003-016 [20]) A “deliberation” is a discussion of the reasons
for and against an action by the persons described in this section. (Alberta
Order 2001-010 [32]) …
[13] In order to justify withholding a record on a basis of section 17(1)(b)(i),
the opinions solicited during a “consultation” or “deliberation” must:
a) either be sought or expected, or be part of the responsibility of the
person from whom they are sought;
b) be sought for the purpose of doing something, such as taking an action
or making a decision; and
c) involve someone who can take or implement the action. (Alberta Orders
96-006 [p.10], 99-013[48])
[32] On its application of section 17(1)(b) of the Act, the Commission provided the following
representation:
Section 17(1)(b) – consultations and deliberations involving officers or
employees of a government institution
In Report 2004-001 you establish that in order to rely on section 17(1)(b), I must
be able to establish that the opinions contained in the exempted record must:
a. either be sought or expected, or be part of the responsibility of
the person from whom they are sought;
b. be sought for the purpose of doing something, such as taking
action or making a decision; and
c. involve someone who can take or implement the action. (¶ 13)
REPORT F-2006-004
10
The communications in this case involve the following individuals:
1. …Deputy Minister of Justice
2. … acting as Chief Commissioner,
3. … the Commission’s senior staff lawyer,
4. … supervisor of mediation and investigation
5. … a Commission investigator who was assigned the task of
investigating the applicants’ complaint
6. … the intake officer in the Regina office, and
7. …the receptionist in the Regina office.
There are also notes to the file which record general observations and opinions.
While these may not be directed at specific individuals, they are nonetheless for
the purpose of informing decision-makers of the observations and opinions for the
purpose of future decision making. Finally, there are Case Reports. These are
created for the purpose of presentation at case conferences, which are attended
by the investigating officer, one or more of the Commission’s lawyers, the
Supervisor of Mediation and Investigation and myself. The case report is
required on every investigation and is presented at case conference for the
purpose of assisting me in making decisions concerning complaints.
You will note from the records provided to you that the applicants were not happy
with the services they received from the Commission. As was their right, they
complained to [Supervisor of Mediation and Investigation] concerning the
investigator, to me concerning our staff generally and to the Minister of Justice.
They expressed their opinions vigorously to our staff in our Regina office, and in
the minds of the staff, created the potential for harm and breaches of security.
The record covered by this exemption fall into one of the following categories:
a. Summaries, advice and opinions recorded in the course of
employment to assist either me in deciding on the merits and
course of action concerning the applicants’ complaint, or to
assist those advising me for the same purpose,
b. Reporting the Commission’s activity with respect to the
applicants’ complaints for the purpose of allowing those who
had been complained to, to assess the situation and respond
appropriately, or
c. To report conduct of the applicants for the purpose of
determining whether there was a potential risk of harm or
security concern.
While the information in the records were not always solicited, it was within the
job duties of those making these records to record their opinion and observations
for possible future action. Thus I believe the records so indicated in the Index of
Records do qualify under this section.
[33] For insight into the applicability of section 17(1)(b) of the Saskatchewan Act, Alberta
IPC Order F2004-026 is useful as it considers a similar provision in its FOIP legislation.
REPORT F-2006-004
11
In this Order, the Commissioner elaborated on the scope of the exception in section 24(1)
of its legislation2 as follows:
[para 76] …Where a person consults or is consulted on a given subject as a
function of their office, and the application of section 24 is claimed on the basis
that they are officers or employees of a public body, the very fact they
participated in the consultation cannot, in my view, be withheld under section
24 unless this fact also reveals the substance of the consultation. …

[para 78] In defining the scope of the exceptions in sections 24(1)(a) and
24(1)(b), I have in mind that these exceptions are broader than those in parallel
provisions in some other jurisdictions. The legislation in Ontario and British
Columbia, for example, excepts only “advice and recommendations”. In Alberta,
“advice, proposals, recommendations, analyses or policy options” are all
excepted, as well as “consultations or deliberations”. Thus, in my view, the
exceptions in section 24(1)(b) embrace the substantive parts of communications
that seek an opinion as to the appropriateness of particular proposals respecting
a course of action to be decided, including any background materials that
inform the advisors about the matters relative to which advice is being sought,
and are thus inextricably interwoven with the questions being asked
(“consultations”). … In my view, “deliberations” also includes comments that
indicate or reveal reliance on the knowledge or opinions of particular persons,
including those of the person making the communication.* [The footnote here is
also of relevance. It reads as follows: “*Withholding of such information is
permitted under the legislation, even though no specific content about the topic in
issue (in this case, the Bill) is revealed, because such information falls within the
policy rationale that persons must be able to freely express the reasons why they
are choosing a particular course – in this situation, that they are or are not
relying on their own expertise or opinions or those of someone else. Statements
of this kind have a substantive element, and could conceivably be inhibited if they
were subject to disclosure.”]

[para 81] I am also strengthened in my view that the names of authors or
correspondents, dates, and subject lines are not excepted from disclosure under
section 24 of the Act by a number of court decisions and decisions of Offices of
the Information and Privacy Commissioners in other jurisdictions.

[para 87] …However, these wider exceptions do not encompass non-substantive
material which merely indicates that someone gave advice or had a discussion,
without revealing some substantive element of the advice or substance of the
discussion.
[Emphasis added]
2 24(1) The head of the public body may refuse to disclose information to an applicant if the disclosure could
reasonably be expected to reveal…(b) consultations or deliberations involving (i) officers or employees of a public
body…”
REPORT F-2006-004
12
[34] Even as I have not yet determined which of the 71 pages are releasable, I find that
heading information such as subject lines and “to” and “from” lines of internal email
communications of Commission employees or similar details contained on fax cover
sheets are releasable (i.e. pages 9, 10, 11, 21, 43-46, & 61) for the reasons cited above at
paragraph [81].
[35] I also am of the same opinion as cited in the above Order at paragraph [78] that the
exemption [section 17(1)(b) of the Act] will not only capture the substantive parts of
communications speaking to the appropriateness of particular proposals but also capture
portions that may reveal the individual’s reliance on other facts or the opinions of others
in formulation of those opinions. An example of such material is contained in Case
Reports withheld by the Commission.
[36] I agree with the Commission’s assertion that much of what is accumulated by
Commission employees during an investigation will be, at some point, relied upon by the
Chief Commissioner to make a decision with respect to that matter. Accordingly, I find
that section 17(1)(b) of the Act applies to some of the records to which the Commission
has applied the exemption, but not all. For the most part, however, the exemption will
not apply to the records described earlier under “b” of the Commission’s submission3.
The exemption, for example, does not capture records such as internal Note Reports (i.e.
pages 111-114) as these are a record of interactions between parties and documents
actions taken by Commission staff. Also, the exemption will not apply to records
containing instructions to staff on how to proceed with the investigation.
[37] I find that the section does not apply to the following: pages 13-18, 21, 73-77, 81, 82, 94,
110-114, 117, 166-167, 168-176, 220, 286, 287, 321, 322, 375, 433, 441, 450, 458, 473,
474, 477 & 481. I find, however, that section 17(1)(b) of the Act does apply to the
following records: 9, 10, 11, 23, 24, 43, 44, 45-46, 61, portions of the Case Report 65-72,
285, 478-479, and 480.
[38] Before concluding this section, I note that quite a significant number of records (pages
13-18, 166-167, 168-176, 196, 275, 276, 353, 354, 355, 356-372, 452-454, 463, 464-465,
482-483, and 484-485) were withheld by the Commission under this section or 15(1)(c)
that: (a) the Applicants authored; (b) the Commission sent to the Applicants; or (c)
consist of discussion threads between Commission staff and the Applicants. I find that
these do not qualify for protection under either of these exemptions.
Did the Commission properly apply section 29 of the Act to the records withheld?
[39] Personal information for purposes of the Act is defined as follows:
24(1) Subject to subsections (1.1) and (2), “personal information” means
personal information about an identifiable individual that is recorded in any
form, and includes:
(a) information that relates to the race, creed, religion, colour, sex, sexual
orientation, family status or marital status, disability, age, nationality,
ancestry or place of origin of the individual;
3 See paragraph [32] of this Report.
REPORT F-2006-004
13
(b) information that relates to the education…or employment history of the
individual or information relating to financial transactions in which the
individual has been involved;

(e) the home or business address, home or business telephone number…
(f) the personal opinions or views of the individual except where they are
about another individual;

(h) the views or opinions of another individual with respect to the
individual;

(j) information that describes an individual’s finances, assets, liabilities,
net worth, bank balance, financial history or activities or credit
worthiness; or
(k) the name of the individual where:
(i) it appears with other personal information that relates to the
individual; or
(ii) the disclosure of the name itself would reveal personal
information about the individual.

(2) “Personal information” does not include information that discloses:
(a) the classification, salary, discretionary benefits or employment
responsibilities of an individual who is or was an officer or employee of a
government institution or a member of the staff of a member of the
Executive Council;

(c) the personal opinions or views of an individual employed by a
government institution given in the course of employment, other than
personal opinions or views with respect to another individual;…
[40] At issue is section 29(1) of the Act that reads as follows:
29(1) No government institution shall disclose personal information in its
possession or under its control without the consent, given in the prescribed
manner, of the individual to whom the information relates except in accordance
with this section or section 30.
[41] If section 29 of the Act is to apply, then withheld information must meet the definition of
personal information under section 24(1) of the Act and belong to data subjects other than
the Applicants. It is necessary then to decide whether each record contains personal
information, and if so, to whom that personal information pertains.
[42] Some documents contain names and job titles of government employees, but also
information that appears to constitute the views or opinions of those same individuals.
REPORT F-2006-004
14
[43] The Alberta Annotated FOIP Act, page 5-1-10, characterizes an “opinion” as follows:
An “opinion” is a belief or assessment based on grounds short of proof; a view
held as probable. An “opinion” is subjective in nature, and may or may not be
based on fact. An example of an “opinion” would be a belief that a person would
be a suitable employee, whether or not the opinion is based on the person’s
employment history (Order 97-020 [129]). Under section 1(n)(viii) anyone else’s
opinions about an individual will be that individual’s personal information
(Order 97-002 [41-45]). However, in order for information to be an opinion
about an individual it must be connected with that individual (Order 98-001
[42]).
[44] The phrasing “views or opinions” appears in different parts of section 24 of the Act
[24(1)(f), 24(1)(h) & 24(2)(c)]. Clauses 24(1)(f) “the personal opinions or views of the
individual except where they are about another individual”, (h) “the views or opinions of
another individual with respect to the individual” and 24(2)(c) “the personal opinions or
views of an individual employed by a government institution given in the course of
employment, other than personal opinions or views with respect to another individual”
differ in meaning as follows:
a. Whether or not you work for a public body, if you have an opinion or view
about another person, that view or opinion material is the personal information of
the data subject, not the author; and
b. If you are not an employee of a public body, your personal opinion or view
(not involving another individual) is your own personal information. However, as
per subsection 24(2)(c), if offered by a government employee in the course of
employment, these will not be considered the employee’s personal information.
This is due to the fact that the individual is only offering his/her opinion or view
as part of his/her employment responsibilities, not in a personal capacity.
[45] In our Report F-2006-001 at paragraph [95], I clarified that names, job titles, and views
or opinions of government employees “would not typically be treated as personal
information by reason of section 24(2) of the Act”. I elaborated further on this point at
paragraph [113] as reproduced below:
In determining which information should be severed as “personal information”,
we have considered the following:
(1) Personal information subject to the Act does not include information
that can be described as “work product”. This concept is discussed at
some length in our Report on The Health Information Protection Act Draft
Regulations, page 16. By “work product” we mean information prepared
or collected by an individual or group of individuals as a part of the
individual’s or group’s responsibilities or activities related to the
individual’s or group’s employment or business.
The information in the record that shows the opinion or comments of a fire
fighter who completes a report about a particular file intended to be
furnished to the OFC would be “work product” information and therefore
not “personal information” of the public sector employee.
REPORT F-2006-004
15
[46] Some of records contain employee names of those working for non-government bodies.
This information does qualify for protection as it constitutes the personal information of
third parties under section 24(1) of the Act.
[47] The Commission did not highlight specific portions thereof or individual line items on
each record to indicate what it constituted personal information under the Act. Instead it
applied section 29 to: (a) full records containing information provided by witnesses
gathered as part of its investigation (statements, contact sheets); and (b) resumes and
employment related assessments of third parties [e.g. 142, 148, 149, 150,151, 152, 153,
157, 159, 161, 183-185, 186-188, 189-190, 191-193, 194-195, 216, 217, 218, 219, and
221-242].
[48] The Commission did, however, provide the following general explanation as to which
records should be subject to section 29 of the Act:
Section 29 – exemption for personal information
The records referred to here fall into two categories:
1. contact information for witnesses,
2. personal records for individuals not involved in the applicants
complaint.
The categories of records could have been released to the applicants “for the
purpose for which the records were obtained.” Had the applicants requested a
review of my decision to dismiss their complaint, they would have been entitled to
review the evidence upon which my decision was made. The first category of
evidence referred to above would have given the applicants the information
necessary to contact and interview witnesses for themselves. The second category
is comprised of the respondent’s records of other individuals seeking employment
opportunities through it. These records would have allowed the applicants to
compare their treatment with the treatment of others. But it is now too late for the
applicants to seek a review of my decision. The Tribunal had determined in other
cases that it does not have the jurisdiction to extend the period of time in which a
complainant can seek a review of the dismissal of their complaint. Outside the
context of this one purpose of seeking a review, these records are highly personal.
It would be an invasion of the right of privacy of the individuals involved to
release personal information about them for no legitimate purpose.
[49] Even without names or contact information (severed at some point by the Commission or
someone else), I note that many of these records contain enough personally identifying
information of third parties (i.e. employment history, education, interests and hobbies) for
section 29(1) to apply to each page in its entirety. The Commission has appropriately
withheld all third party employment assessments, candidate information, and resumes. I
find that the Commission has rightfully withheld pages 148 – 153, 183-195, 216-219,
231-242, and portions of 374 under this section.
[50] The Applicants have not expressed an interest in accessing third party personal
information. They are, however, seeking access to their own personal information
believed to be contained in records withheld under other exemptions.
REPORT F-2006-004
16
[51] On granting access to one’s own personal information the Act provides the following:
31(1) Subject to Part III and subsection (2), an individual whose personal
information is contained in a record in the possession or under the control of a
government institution has a right to, and:
(a) on an application made in accordance with Part II; and
(b) on giving sufficient proof of his or her identity;
shall be given access to the record.
(2) A head may refuse to disclose to an individual personal information that is
evaluative or opinion material compiled solely for the purpose of determining the
individual’s suitability, eligibility or qualifications for employment….
[52] Section 31 of the Act clearly contemplates the possibility that a government institution
may withhold an individual’s own personal information if an exemption in Part III of the
Act requires or enables it to.
[53] In our review of the record, we note that the Commission withheld copies of the
Applicants’ resumes (pages 325-327 and 333-335). The Commission should release
these documents as these constitute the Applicants’ personal information and as no other
exemption(s) clearly apply.
[54] We note that many of the documents contain individually identifying information of
different witnesses interviewed by the Commission. These records include witness
contact sheets (pages 142, 157, 159, and 161), Commission authored instructional letters
(pages 118, 123, 126, 129, 132, 138) addressed to individual witnesses, and witness
statements (119-120, 121-122, 124-125, 127-128, 130-131, 133-134, 135-137, 139-141,
143-146 & 147). Only witness statements contain the opinions or views of others about
the Applicants. This opinion material is releasable to the Applicants. The Commission
must, however, sever the names, addresses and other individually identifying information
of third parties before doing so.
[55] Earlier on in our analysis of the applicability of section 17(1)(b) of the Act, the
Applicants raised the following concern:
When internal ‘consultations and deliberations’ are interspersed with and
interrelated to – personal information – can the responsive personal information
be severed from a record citing s. 17(1)(b)(i) of the Act?
[56] The Applicants assert that since they were the subject of internal
consultations/deliberations that the Commission should be able to extract what constitutes
their personal information from these records and release to them even if the section
otherwise applies. In order to determine if this is reasonable or feasible, I must first
determine what, if any, information contained in these records constitutes the personal
information of the Applicants.
[57] I determined at paragraph [37] that section 17(1)(b) of the Act applies but only to certain
records. Some of these records contain employee views and opinions about the
Applicants in the context of the human rights investigation (i.e. Case Reports). Others
contain employees’ opinions on whether the Applicants pose a safety risk (i.e. pages 43-
REPORT F-2006-004
17
46, 61). Some of these documents also contain other data elements that constitute third
party personal information.
[58] Ontario IPC Order MO-1487 does not deal specifically with opinion material about an
identifiable individual, but is useful nonetheless as it demonstrates that if relied on for
decision making during the deliberative process there are circumstances when the
personal information of an identifiable individual can be withheld from the data subject
to whom it pertains. The relevant portions of that Order are as follows:
The Municipality submits that the record was presented to Council on August 19,
1999 and “was received during the closed (in-camera session).” It indicates that:
Closed sessions are authorized by section 55(5)(b) of the Municipal Act
where the matter being considered is a personal matter concerning an
identifiable individual. In this case, the record pertained to financial
matters specifically associated with the individuals.
The record contains the contents of these confidential matters as presented
to the Council for its deliberations. These are the facts upon which the
Council actually deliberated. Disclosure of the document would reveal
the actual substance of the discussions conducted by the Council.
The appellant concedes that Part 1 and 2 of the test set out above have been
satisfied by the Municipality. She takes issue, however, with the Municipality’s
assertion that the disclosure of the record would reveal the substance of Council’s
deliberations. She submits that:
…the representations of the Municipality state that the Tax Clerk’s Report
is a chronological account of financial transactions and exchanges
concerning my property taxes, and that “these are the facts on which the
Council actually deliberated.” If that is so, I would respectfully ask the
Municipality why my husband and I attended the meeting at all. I submit
that we requested and attended the meeting in order to inform Council of
our situation of financial hardship and disability and request relief, and
that the actual substance of the Council’s deliberations was whether or
not any relief was possible given our circumstances. Information
regarding our current financial and medical problems was provided in
person by myself and my husband, as well as in my written presentation,
while the Tax Clerk’s Report dealt with “the actions of staff to deal with
problems presented by the individuals”. I therefore conclude that the
disclosure of the Report would not reveal the actual substance of
Council’s deliberations regarding our request for relief. In addition,
while the Tax Clerk’s Report provided the Council with background
information regarding payment of my taxes, and staff action to collect
taxes, this information would not be revealed by disclosure of the Report,
as it was previously known to me and referred to in my presentation.
In my view, based on my reading of the record, it contains information whose
disclosure would reveal precisely the substance of Council’s deliberations. The
record addresses the circumstances surrounding the appellant’s tax arrears and
the steps taken by the appellant and her husband to bring them up to date. The
record also addresses specifically and in detail the appellant’s request for relief
and the position taken by the Municipality in response. This is the substance of
REPORT F-2006-004
18
what Council was being asked to decide upon, how the Municipality ought to
respond to the appellant’s request for relief. In my view, the disclosure of the
record would reveal the substance of Council’s deliberations and the record
qualifies for exemption under section 6(1)(b).
[Emphasis added]
[59] Another Order4 from Ontario explains that if section 38(a) of the Municipal Freedom of
Information and Protection of Privacy Act5 applies, that the Town, in that case, had the
“discretion to refuse to disclose to the appellant his own personal information….”
[60] The above two cases demonstrate that in certain limited circumstances when personal
details about an individual are central to the decision being contemplated, this personal
information may be withheld from the data subject to whom it pertains. Therefore, I find
that when section 17(1)(b) of the Act applies to records, even if the information contained
within the record constitutes the Applicants’ personal information, that personal
information may be withheld under section 17(1)(b) of the Act. I find this is the case, for
example, pages 65-72 of the Case Report.
Was the Commission’s extension of the response deadline in accordance with the criteria
set out in section 12(1)(b) of the Act?
[61] The Commission informed the Applicants on January 16, 2004 of its decision to extend
the response deadline by “another 30 days to February 20, 2004 in accordance with
subsection 12(1) of The Freedom of Information and Protection of Privacy Act.” The
remaining relevant parts of the letter are as follows:
The reason for this extension is that consultations necessary to comply with your
application cannot reasonably be completed within the original period, which
falls under subsection 12(1)(b) of the Act.
If you wish to request a review of this delay, you may do so within one year of this
notice….
[62] During our review, the Commission offered additional reasons as to why the time
extension was necessary as offered below:
…The Applicants’ request dated December 16, 2003 was received in my office
December 22, 2003. At that time I was out of the office for Christmas break. I
returned to my office January 6, 2004, which was my first opportunity to review
the Applicants’ letter. As you know, the file contained extensive documentation –
I believe our record consisted of 485 pages. It took considerable time to review
the file and prepare our response. We were unable to do so within the time
allotted under the Act and therefore notified the Applicants that we would be
extending the time within which to reply as provided for under the Act.
[63] In our Report F-2006-003, I offered the following with respect to providing notice of an
extension including what specific activities qualify as “consultations” under that section:
[9] The applicable provisions of the Act are as follows:
4 Ontario Order M-64, page 4
5 “a head may refuse to disclose to the individual to whom the information relates personal information if section
6…would apply to the disclosure of that personal information”
REPORT F-2006-004
19
12(1) The head of a government institution may extend the period set out
in section 7 or 11 for a reasonable period not exceeding 30 days:

(2) A head who extends a period pursuant to subsection (1) shall give
notice of the extension to the applicant within the 30 days after the
application is made.
(3) Within the period of extension, the head shall give notice to the
applicant in accordance with section 7.

[44] The provision in the Saskatchewan Act does not explicitly exclude internal
“consultation” types of activities. However, my view is that internal
consultations are part of every government institution’s routine
responsibilities when responding to an access to information application.
For that reason, for purposes of section 12(1)(b) of the Act, activities that
constitute “consultations” should be those outside of intrinsic and routine
obligations of any government institution.

[54] Section 12(1)(b) of the Act states that the head may only extend the
response deadline for a “reasonable period” where consultations are
necessary to comply with the application and cannot reasonably be
completed within the original period.

[62] Justice did not provide sufficient evidence of the nature and complexity of
external consultations for me to find that these activities warranted a
further extension of the 30 day response time line.
[64] I find that the above circumstances are also the case in this present review. The
Commission did not provide any evidence of the nature and complexity of its
consultations so I am unable to find that the extension was warranted for this reason in
this case.
[65] As evident in its later submission, the Commission’s reasons for extending the deadline is
actually attributable to a lack of adequate resourcing as key employees were away on
vacation, but also as the Commission regarded the request as too voluminous to process
within the original 30 day deadline. In our Report F-2006-003, I offered the following on
determining if a request is voluminous:
[41] Of assistance in quantifying what constitutes “a large number of records” is
the following excerpt from the text Federal Access to Information and Privacy
Legislation Annotated 2005:
2. Large Number of Records. There is no magic number of records that
qualify as a “large number”. Historically, however, the Information
Commissioner has rarely accepted 500 or fewer records as being a large
number. On the other hand, it has not been unusual for the Commissioner
REPORT F-2006-004
20
to accept 1,000 or more records as being a large number. No matter what
the number of records may be, if an institution wishes to make a case for
an extension based on a large number of records, it should take into
account the following factors:
a. are the records easily reviewed, despite the number of pages, due to
their homogeneity [example: a large computer printout where review of
one or two pages results in a uniform approach to be applied to all
pages];
b. have the records been reviewed in response to a previous request;
c. does the number of records exceed the average number of records
requested per request in the institution;
d. does the number of records exceed the number which, historically, the
institution has been able to process in 30 days; or
e. would processing the request in 30 days unreasonably interfere with the
operations of the institution?
[66] In consideration of the above and in review of the record, I do not find that the record is
so voluminous as to warrant a time extension.
[67] On the Commission’s argument that the time extension was warranted due to staff
unavailability, I considered advice from Ontario’s Freedom of Information Guidelines6.
Of relevance is the following:
A qualified, trained FOI Coordinator is essential to the proper and timely conduct
of an institution’s FOI business and acts as its liaison with requesters, appellants
and the IPC. Consequently, institutions should identify the FOI Coordinators as
a critical position for succession planning purposes and ensure that a qualified
individual is available at all times to discharge the Coordinator’s
responsibilities.7
[68] Also on this point, I considered portions of an Alberta Government publication8 which
clarifies that “[t]he Act [Alberta’s FOIP] does not provide for extensions for other
administrative reasons, such as…working conditions arising from sickness, staff absence
or vacation, or staff workloads.”9 I am of the same view.
[69] I find that extending the response deadline in the circumstance was not appropriate.
6 Ontario Government publication available online at
http://www.accessandprivacy.go.....deline.pdf
7 Ibid, page 10
8 Freedom of Information and Protection of Privacy Guidelines and Practices, 2005. Available online:
http://foip.gov.ab.ca/resource.....3.cfm#3.3.
9 Ibid, Chapter 3: Access to Records, page 14
REPORT F-2006-004
21
Did the Commission meet the requirements of section 7 of the Act when it responded to the
Applicants request?
[70] The applicable provision of the Act is as follows:
7(1) Where an application is made pursuant to this Act for access to a record, the
head of the government institution to which the application is made shall:
(a) consider the application and give written notice to the applicant of the
head’s decision with respect to the application in accordance with
subsection (2); or

(2) The head shall give written notice to the applicant within 30 days after the
application is made:

(d) stating that access is refused, setting out the reason for the refusal and
identifying the specific provision of this Act on which the refusal is based;
[71] During the review, we gave the Commission an opportunity to respond to the following:
Did the Commission discharge its duty under section 7 of the Act in response to
the request for access…?
[72] In response, the Commission offered the following:
I assume that the questions under section 7 are answered in the affirmative if you
agree that I have properly relied on the exemptions stated above. If you are
referring to some other duty in raising section 7, please advise.
[73] In order to provide an adequate response as per section 7 of the Act, the Commission’s
response letter to the Applicants, as stated in our Report F-2006-003 at paragraph [22],
should have contained the following elements:
Section 7 of the Act requires that denying an applicant’s access application
whether in full or in part, the written notice must meet three requirements:
(a) It must state that access is refused to all or part of the record;
(b) It must set out the reason for refusal; and
(c) It must identify the specific provision of the Act on which the refusal is
based.
[74] In the same Report at paragraph [27] I provided examples of what would constitute a
detailed explanation of the reasons for the refusal. In its response to the Applicant the
Commission did not set out reasons for the refusal, instead only paraphrased the wording
of the two exemptions invoked at the time, sections 15(1)(c) and 17(1)(b) of the Act.
[75] Even though the Commission provided its response within the 30 day extension, I find
that the Commission did not discharge its duty under section 7 of the Act for the reasons
noted in the above paragraphs.
REPORT F-2006-004
22
V RECOMMENDATIONS
[76] I recommend release of the following records in full: 13-18, 21, 81-82, 114, 115, 156,
166-167, 168-176, 196, 197, 226-230, 275, 276, 277-284, 321, 324-327, 328-332, 333-
335, 336-340, 341, 350-351, 353, 354, 357, 359, 360-361, 362-367, 371, 372, 404, 428,
441-443, 450, 452-454, 458, 463, 464-465, 474, 482-483, and 484-485
[77] I recommend release of the following records in part severed in accordance with the
instructions I have provided to the Commission: 9, 10, 11, 23, 43, 44, 45, 46, 61, 62-64,
73-77, 78, 79, 80, 94, 97-98, 99, 110-113, 116-125, 126, 127-128, 129, 130-131, 132,
133-141, 143-147, 154, 155, 158, 160, 162-164, 165, 177, 178-180, 181-182, 220, 221-
225, 250, 274, 285, 286-287, 289-291, 292, 320, 322, 323, 342, 346, 348, 349, 352, 355,
356, 358, 368-370, 373, 374, 375, 407, 432, 433, 434, 435-440, 446, 462, 473, 477, 478-
479, 480, and 481.
[78] I recommend that the Commission continue to deny access to the following records: 24,
65-72, 142, 148-153, 157, 159, 161, 183-195, 216-219, and 231-242.
Dated at Regina, in the Province of Saskatchewan, this 29th day of November, 2006.
R. GARY DICKSON, Q.C.
Information and Privacy Commissioner for
Saskatchewan


http://www.oipc.sk.ca/Web%20Site%20Documents/
Report%20F-2006-004%20-%20File%20No.%20023--2004,%20November%2029,%202006.pdf


Last edited by don muntean on Fri Feb 02, 2007 4:07 am; edited 1 time in total
don muntean





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PostPosted: Fri Dec 08, 2006 9:25 am    Post subject: Reply with quote


Link




This is an actual 'Oxford' file folder from my SGI auto-injury file - it was obtained through the Freedom of Information Act in 2002 - note the word "Dummy" under my name - it was SGI who wrote that!

[Note: Audio sequence NOW included on this video - a [recorded in 2002] phone discussion with an SGI lawyer - regarding this file folder
]
don muntean





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Posts: 2262
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PostPosted: Tue Jan 23, 2007 12:43 am    Post subject: Reply with quote

Well at last I have completed and filed the Notice of Motion application in court of queens bench for saskatchewan - the saskathcewan human rights commission is going to be taken to task - here is the notice of motion [minus all the special formatting]:

"In The Court of Queens Bench for Saskatchewan

In the matter of Section 58 of the Freedom of Information and Protection of Privacy Act

Between:

Donald Muntean – Appellant

Saskatchewan Human Rights Commission - Respondent


Notice of Motion
NO.47 (R.450)

Take notice that an application will be made to the presiding judge in chambers at the court house in Regina Saskatchewan, on Tuesday the 06 day of February 2007 at ten o’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the plaintiff for an order that:

(a) Saskatchewan Human Rights Commission [herein after to be referred to as SHRC] remit access to our human rights complaint’s file with proper regard to every applicable provision of the Freedom of Information and Protection of Privacy Act [herein after to be referred to as FOIPP]

(i) establishes bad-faith determinations on SHRC violations of s. 25, s. 26 and s. 27 FOIPP – standard of accuracy/manner of collection

(ii) establishes bad-faith determinations on SHRC violations of s. 53(3)(b)(i) FOIPP – attempted unauthorized access to representations to privacy commissioner

(iii) establishes clear juristic explication of s. 17(2)(b) and s. 24(2)(c) FOIPP - consultations/deliberations within adjudicative and discretionary files and ‘opinions and views given in course of employment’ recorded within consultations and deliberations within adjudicative and discretionary files

(iv) establishes bad-faith determinations on s. 66(1)(a) FOIPP – SHRC withholding access to records and information

(v) invokes s. 58(4) FOIPP – reporting SHRC statutory violations to federal justice

(vi) SHRC cover the costs of bringing forward this application

(vii) any other remedy/penalty which the court sees fit under the circumstances

(b) on the following grounds:

(i) ss. 5, 7(2)(d), 8, 17(2)(b), 17(2)(f)(i), 25, 26(1), 26(3), 27, 31(1), 53(3)(b)(i), 58(4), 61, 66(1)(a),(b) of the Freedom of Information and Protection of Privacy Act [S.S. 1990-91 c F-22.01]

(ii) Saskatchewan OIPC Report F-2006-004, Saskatchewan OIPC Report F-2006-003

And further take notice that in support of the said application will be read:

1. Cited FOIPP Statutes of Saskatchewan
2. Saskatchewan OIPC Report F-2006-004 (22 pages)
3. Saskatchewan OIPC Report F-2006-003 (Para. 69-70)
4. Pages 9-11, 13-18, 21, 23, 43-46, 61, 75, 82, 168-170, 221-225, 286, 328-332, 336-340, 350-354, 463-465, 470, 473, 477, 479-481, 484 of the severed human rights records submitted by SHRC
5. Appellant letters to OIPC dated - March 29, 2005, (9 pages) January 19, 2005 (9 pages) and March 08, 2004 (12 pages)
6. Appellant letters to SHRC dated March 13, 2004, (6 pages) and June 09, 2004 (5 pages)
7. SHRC letter to OIPC dated February 15, 2005 (6 pages)
8. SHRC October 2003 [human rights complaint] Dismissal Letter (8 pages)
9. SHRC [s. 56 FOIPP decision] letter dated December 20, 2006 (1 page)
10. Affidavit of Donald Muntean (3 pages)


Dated at Regina, Saskatchewan, this 22 day of January 2007.

_____________________
Appellant
To:

Saskatchewan Human Rights Commission
8th Floor, Sturdy Stone Bldg.
122 – 3rd Avenue North
Saskatoon, SK S7K 2H6

Note: notice of motion and supporting documents to be personally served on Regina SHRC office with copies to be personally served on the office the deputy minister for Saskatchewan justice – additional copies to be provided to Saskatchewan OIPC "

Later i shall post more from this QB submission - but I want the judge to see my 'advance brief' arguments - before I do that....
don muntean





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PostPosted: Thu Feb 01, 2007 5:04 pm    Post subject: Reply with quote

Well I got some papers from the SHRC lawyers today - they are trying for an 'ex parte' and claiming that the court has no jurisdiction in most of this matter - I doubt that the court shall agree...just see - this neo-communist government STILL thinks that it must be seen as infallible - just like governments in Iran and China...
Duck Tory





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PostPosted: Thu Feb 01, 2007 5:59 pm    Post subject: Reply with quote

Good question but in this day of age Info can be twisted and perverted to suite the Far-left's own agenda.
don muntean





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PostPosted: Thu Feb 01, 2007 8:34 pm    Post subject: Reply with quote

Duck Tory wrote:
Good question but in this day of age Info can be twisted and perverted to suite the Far-left's own agenda.


Hello!

Yes - but in this case it just cannot be so.

There is such a pretence in our system today and - it is undermining everything - too many of our civil servants have an extreme sense of infallibility and with that they make so many foolish and harmful decisions.

It is interesting that their noted 'ex parte Motion' is asking the court to disregard these points from our motion [where we are seeking an order that]:

"(ii) establishes bad-faith determinations on SHRC violations of s. 53(3)(b)(i) FOIPP – attempted unauthorized access to representations to privacy commissioner

(iii) establishes clear juristic explication of s. 17(2)(b) and s. 24(2)(c) FOIPP - consultations/deliberations within adjudicative and discretionary files and ‘opinions and views given in course of employment’ recorded within consultations and deliberations within adjudicative and discretionary files

(iv) establishes bad-faith determinations on s. 66(1)(a) FOIPP – SHRC withholding access to records and information

(v) invokes s. 58(4) FOIPP – reporting SHRC statutory violations to federal justice"

How can they argue that the court is 'without jusridiction' in this connection?

Of course they aren't asking the court to disregard it - as vexatious and frivolous.

Points two and five are of particular concern! They are afraid that the court shall agree with our submissions regarding 'consultations/deliberations' and - they know that the court is in a position to report to federal justice.

It is apparent that they continue to conceal and that they are concerned about the outcome of the process - if all the points advanced by us are heard and ruled on by the court - through our Motion.

We shall soon see - in only four days!
Duck Tory





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PostPosted: Thu Feb 01, 2007 8:46 pm    Post subject: Reply with quote

Makes you want to change the world for better i know that from expereince the Hatred i always feel and the sadness in those around.
don muntean





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PostPosted: Fri Feb 02, 2007 4:06 am    Post subject: Reply with quote

don muntean wrote:


It is interesting that their noted 'ex parte Motion' is asking the court to disregard these points from our motion [where we are seeking an order that]:

"(ii) establishes bad-faith determinations on SHRC violations of s. 53(3)(b)(i) FOIPP – attempted unauthorized access to representations to privacy commissioner

(iii) establishes clear juristic explication of s. 17(2)(b) and s. 24(2)(c) FOIPP - consultations/deliberations within adjudicative and discretionary files and ‘opinions and views given in course of employment’ recorded within consultations and deliberations within adjudicative and discretionary files

(iv) establishes bad-faith determinations on s. 66(1)(a) FOIPP – SHRC withholding access to records and information

(v) invokes s. 58(4) FOIPP – reporting SHRC statutory violations to federal justice"

How can they argue that the court is 'without jusridiction' in this connection?


They should not try to advance this 'without jurisdiction' nonsense as that is disregarding the Rules of Court in connection to Notices of Motion and in particular - Rule 463:

463 In every cause or matter where any party thereto makes any application at chambers he shall be at liberty to include in one and the same application all matters upon which he then desires the order or directions of the court; and upon the hearing of such application, it shall be lawful for the court to make any order and give any directions relative to or consequential on the matter of such application as may be just; any such application may, if the court thinks fit, be adjourned from chambers into court, or from court into chambers. R. 463.
don muntean





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PostPosted: Fri Feb 02, 2007 4:14 am    Post subject: Reply with quote

Duck Tory wrote:
Makes you want to change the world for better i know that from expereince the Hatred i always feel and the sadness in those around.


Yes there must be a way to make things better and there is too much despondency in people nowdays - our system is evermore impersonal and out-of-touch and what can be said? While I'm very very angry at them - I don't hate - as that could make them the winner and - I don't want them to have that sort of impact on me - I hope that it can stay that way.

I know that with a CPC federal government there may be hope - I'm sure that they too don't appreciate public servants acting out of order...

:roll:
Duck Tory





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PostPosted: Fri Feb 02, 2007 3:17 pm    Post subject: Reply with quote

I know Don the CPC is a Realist group that wants to do better in the world today. Furthermore it never surprise me the Libs are doing everything they can to destory Canada and the supportbase of the CPC.

For example look what happen to the Reps in the US midterm elections we got a Socialist-Democratic Regime turning back the clock to pre-9/11.
don muntean





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PostPosted: Fri Feb 02, 2007 5:00 pm    Post subject: Reply with quote

Well court is in just a few days... :wink:

Last edited by don muntean on Fri Feb 02, 2007 7:45 pm; edited 2 times in total
don muntean





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PostPosted: Fri Feb 02, 2007 7:42 pm    Post subject: Reply with quote

Duck Tory wrote:
I know Don the CPC is a Realist group that wants to do better in the world today. Furthermore it never surprise me the Libs are doing everything they can to destory Canada and the supportbase of the CPC.

For example look what happen to the Reps in the US midterm elections we got a Socialist-Democratic Regime turning back the clock to pre-9/11.


I have faith in the CPC that they are the better leaders - however - i also need to see them become serious about what is happening to me [matter which is noted on my protest website] and to have federal justice launch an investigation on these provincial [so-called] authorities. The Liberals failed me - shall the CPC? I've written to the federal CPC government in this connection and - they haven't even replied. I hope that they are going to do something to help me enforce my rights.
don muntean





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PostPosted: Fri Feb 02, 2007 7:47 pm    Post subject: Reply with quote

don muntean wrote:


It is interesting that their noted 'ex parte Motion' is asking the court to disregard these points from our motion [where we are seeking an order that]:

"(ii) establishes bad-faith determinations on SHRC violations of s. 53(3)(b)(i) FOIPP – attempted unauthorized access to representations to privacy commissioner

(iii) establishes clear juristic explication of s. 17(2)(b) and s. 24(2)(c) FOIPP - consultations/deliberations within adjudicative and discretionary files and ‘opinions and views given in course of employment’ recorded within consultations and deliberations within adjudicative and discretionary files

(iv) establishes bad-faith determinations on s. 66(1)(a) FOIPP – SHRC withholding access to records and information

(v) invokes s. 58(4) FOIPP – reporting SHRC statutory violations to federal justice"

How can they argue that the court is 'without jusridiction' in this connection?

Of course they aren't asking the court to disregard it - as vexatious and frivolous.

Points two and five are of particular concern! They are afraid that the court shall agree with our submissions regarding 'consultations/deliberations' and - they know that the court is in a position to report to federal justice.

It is apparent that they continue to conceal and that they are concerned about the outcome of the process - if all the points advanced by us are heard and ruled on by the court - through our Motion.

We shall soon see - in only four days!


Here is my counter-submission - just made it to the court to file it:

-------------------------------------------------------------------------

Q.B.C. 105/07

In The Court of Queens Bench for Saskatchewan

In the matter of Section 58 of the Freedom of Information and Protection of Privacy Act

Between:

Donald Muntean – Appellant

Saskatchewan Human Rights Commission - Respondent

Appellant Brief - pursuant to respondent’s ex-parte application

[1] On February 01, 2007 at approximately 3:50 P.M. the respondent’s lawyer served an ex parte notice of motion [at the appellants residential address] - as filed by the respondent on February 01, 2007. It is respectfully submitted that the court note and question the respondent’s having waited until just three days before this court hears the appellant Notice of Motion to file such an inordinate application as has been filed by the respondent.

The respondent could clearly surmise where SHRC could serve documents on the appellants [from the Notice of Motion documents served by the appellants] as such - there was/is no need for an ‘ex parte’ status on the SHRC notice of motion.

Additionally – there are no “special provisions” for the respondent’s application.

[2] The SHRC is asking this court make an order - to amend the appellant Notice of Motion - to become an appeal of the respondent’s decision following the OIPC review process.

The rules of court [441A] and section 58 of the Freedom of Information and Protection of Privacy Act [FOIPP] delineates that this review is conducted as an in chambers review and that it shall be conducted - de novo – from the beginning – i.e.: a new process notwithstanding previous processes.

While it may be that a section 58 - de novo hearing is precipitated by the respondent’s section 56 FOIPP decision - it is nonetheless respectfully submitted that - a section 58 FOIPP application cannot be conducted as ‘an appeal’ of the SHRC’s decision under section 56 FOIPP.

The SHRC isn’t in any position to amend our application before this court - an application that has been properly filed with regard to the FOIPP statutes and the rules of court. In this connection the rules of court state – [regarding any Notice of Motion filed for in an in-chambers hearing]:

441B “Every Notice of Motion shall set forth:

(a) the precise relief sought;

(b) the grounds to be argued, including a reference to any statutory provision or
rule to be relied on; and

(c) a list of the documentary evidence to be used at the hearing of the motion.”

The appellant Notice of Motion and supporting documentary evidences filed with the court registrar conforms to the rules of court in this connection. Any such amendments must be forthwith denied.

[3] The SHRC is petitioning this court to ‘summarily dismiss’ points (ii) through (v) of the appellant Notice of Motion.

The respondent erroneously contends in their application that this court is ‘without jurisdiction’ to hear and subsequently rule upon the matters and issues as noted within items (ii) through (v) of the appellant Notice of Motion.

Points (ii) and (v) are of particular concern in this connection - SHRC cannot plead that this court is ‘without jurisdiction’ on determinations regarding consultations and/or deliberations' under section 17 FOIPP and - SHRC well knows that under section 58(4) FOIPP - this court is in a position to make reports to federal justice.

It is submitted that the appellants have advanced items (ii) through (v) of within the Notice of Motion application - fully in accordance with the rules of court [and the FOIPP statutes] in this connection and - as specifically outlined through rule 463:

463 “In every cause or matter where any party thereto makes any application at chambers he shall be at liberty to include in one and the same application all matters upon which he then desires the order or directions of the court; and upon the hearing of such application, it shall be lawful for the court to make any order and give any directions relative to or consequential on the matter of such application as may be just; any such application may, if the court thinks fit, be adjourned from chambers into court, or from court into chambers. R. 463.”

The inclusions of items (ii) through (v) within the appellant Notice of Motion are framed within context of the FOIPP statutes and these are concerning matters directly associated to specific material circumstances within this matter and - as relating to these provisions – in other words - the noted items fall under provisions of the FOIPP statutes and - as noted - can be entered by the appellants into the Notice of Motion - as per rule 463 of the rules of court.

It is respectfully submitted that the respondent’s inordinate application to dismiss items (ii) through (v) of the appellants Notice of Motion - must be forthwith denied.

[4] The SHRC is asking this court to order what records etc., SHRC are to submit to the court. The SHRC is aware that section 58(2) FOIPP clearly instructs SHRC to submit the entire record within their possession to the court and that ‘no information shall be withheld from the court on any grounds’:

58(2) “Notwithstanding any other Act or any privilege that is available at law, the
court may, on an appeal, examine any record in the possession or under the control
of a government institution, and no information shall be withheld from the court on
any grounds.”

The SHRC seeks an order - SEEMINGLY to be then directed towards this court - with obvious intent to directing this court’s procedures in hearing this matter de novo - while these procedural points are already evident to the court - when dealing with section 58 FOIPP.

[5] The SHRC is petitioning for an order so that the head of the SHRC can make submissions via conference call. This application is protested as being unreasonable and not in keeping with good faith. The SHRC advances some argument that this method of appearance is sought to keep costs down - however – it seems that their hiring of a law firm to host this conference call - contradicts a prohibitive costs argument.

[6] The preceding points are an outline of counter-submissions with respect to the February 01, 2007 ‘ex parte’ application of the respondent.

All of which is respectfully submitted.


Donald JK Muntean
________________________________________________________________________

Noted rules of court referenced [or to be referenced] [all emphases added]:

441(1) All applications both in court and in chambers shall be by notice of motion
except where otherwise specially provided.

When by notice of motion

(2) Where under any statute an application may be made to the court or to a judge,
such application shall be made by notice of motion unless the statute or the rules
otherwise provide.

441A Ex parte applications shall be by memorandum setting forth:

(a) the special provision authorizing the ex parte application;

(b) the relief sought;

(c) a statement that none of the opposite parties is, to the knowledge of the
applicant, represented by legal counsel; or, setting out the name of legal counsel
representing any opposite parties; and

(d) citations of the authorities relied upon, namely:

(i) chapters and section numbers of statutes;

(ii) rules numbers; and

(iii) complete citations of cases with designation of relevant passages.

Contents of Notice of Motion

441B Every Notice of Motion shall set forth:

(a) the precise relief sought;

(b) the grounds to be argued, including a reference to any statutory provision or
rule to be relied on; and

(c) a list of the documentary evidence to be used at the hearing of the motion.

443 All applications or motions by these rules or by statute authorized to be made to the court, shall, except motions made at or during the trial of any action, issue or other proceeding be made to a judge in chambers.

450 A notice of motion shall be in Form 47 and shall be addressed to all the persons on
whom it is to be served.

Applications may include several matters, Adjournment into court and into chambers

463 In every cause or matter where any party thereto makes any application at chambers he shall be at liberty to include in one and the same application all matters upon which he then desires the order or directions of the court; and upon the hearing of such application, it shall be lawful for the court to make any order and give any directions relative to or consequential on the matter of such application as may be just; any such application may, if the court thinks fit, be adjourned from chambers into court, or from court into chambers. R. 463.
________________________________________________________________________

Note: This brief delivered by mail to:xxxxxxxxxxxxxt, Saskatoon, Saskatchewan, S7K 5T6
don muntean





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PostPosted: Sun Feb 04, 2007 12:03 am    Post subject: Reply with quote

don muntean wrote:
Duck Tory wrote:
I know Don the CPC is a Realist group that wants to do better in the world today. Furthermore it never surprise me the Libs are doing everything they can to destory Canada and the supportbase of the CPC.

For example look what happen to the Reps in the US midterm elections we got a Socialist-Democratic Regime turning back the clock to pre-9/11.


I have faith in the CPC that they are the better leaders - however - i also need to see them become serious about what is happening to me [matter which is noted on my protest website] and to have federal justice launch an investigation on these provincial [so-called] authorities. The Liberals failed me - shall the CPC? I've written to the federal CPC government in this connection and - they haven't even replied. I hope that they are going to do something to help me enforce my rights.


Here is an interesting link from our friends at 'small dead animals':

"...Anne McLellan said she couldn't help me, so now I can start lobbying the new federal government for proper compensation for what happened...Hawn is asking constituents who had an open request for assistance with McLellan's office to contact him immediately..."

http://www.smalldeadanimals.co.....03496.html

So it seems that the new Conservative MP for edmonton center thinks it is proper to approach an MP for help with serious issues. Of course - the MP for this area is that 'do nothing liberal' goodale fellow and his office gave me the royal treatment [much like the noted 'shreddin annie'] - it is sad that he held onto that seat - real sad.

In any case - I have asked the federal conservative government for help - directly in writing and - indirectly in the cyberworld - so - shall it again fall onto deaf ears - i hope and i pray that it isn't going to be that way....
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