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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
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votes: 8
Location: Saskatchewan

PostPosted: Tue Oct 03, 2006 7:36 pm    Post subject: Freedom of Information Reply with quote

Soon the Saskatchewan Information and Privacy Commissioner is going to be releasing an important Report one which shall deal with the Saskatchewan Human Rights Commission and their bad-faith handling of complaints [filed for religious discrimination against Employment Network Inc. Regina] made by myself and my god-brother in July 2002 - so with that - here are the major FOIP points to be covered within this noted forthcoming Report:

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:

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


Of course this exemption - ‘subject to subsection (2)’ - is very important in the assessment of what happens with personal information when it is ‘personal opinions or views of an individual employed by a government institution’ and - at the same time constitutes - one's personal information:

24(2) “Personal information” does not include information that discloses:

(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;
[emphases added]

Of course SGI/SHRC have also misapplied section 17(1)(b) of the Act - in the refusal of their consultations and deliberations - by preclusion of subsection (2).

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

(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
; [emphases added]

Incidentally - “Official Record” - is also interpreted as an ‘overall collection’ of records - i.e.: the “File”.

Evasions of these sections are a common problem in Saskatchewan [and other jurisdictions]!

All the provincial departments misapply section 17 of the FOIP Act – like a blanket refusal. What have they to conceal?

Further - in section 17(2)(f)(i) of the Act it says:

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

(f) is

(i) an instruction or guide-line issued to the officers or employees of a government institution;


So with FOIP legislation - we have these basic information standards to govern the beforementioned points:

Right of access

5 Subject to this Act and the regulations, every person has a right to and, on an application made in accordance with this Part, shall be permitted access to records that are in the possession or under the control of a government institution.

Individual’s access to personal information

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.


Thus through the authority of s. 5 every person has the right to access records – the Act further broadens access rights in s. 31(1) - by extending the provisions to - personal information contained in a record and in s. 24(2)(c) of the Act we've seen what important information is included as personal information.

So we have access to records and personal information – then - we look at section 8:

Severability

8 Where a record contains information to which an applicant is refused access, the head shall give access to as much of the record as can reasonably be severed without disclosing the information to which the applicant is refused access.
[underline added]

In s. 8 of the Act we are instructed that the head shall give access to as much of the record as can be severed – without disclosing the information to which an applicant is refused.

So what could be considered the most important 'personal information' in an adjudicative or discretionary file?

This information is [as noted] - outlined in section 24(2)(c) of the Act:

The personal opinions or views of an individual employed by a government institution given in the course of employment, …with respect to another individual

I urge Saskatchewan's population to NOW request the personal opinions and/or views of any individual employed by a government institution - where they have had dealings that individual and - such dealings may be of concern.

Of course - this Report shall impact other jurisdictions as well - as the wordings in the various provincial FOIP legislation read very much the same as noted above [of course the section numbers may differ].

Well there it is - the Pandora’s box for them!


Last edited by don muntean on Sun Jul 06, 2008 7:26 pm; edited 5 times in total
Cool Blue





Joined: 21 Sep 2006
Posts: 3130
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votes: 10
Location: Ontario

PostPosted: Tue Oct 03, 2006 8:37 pm    Post subject: Reply with quote

1) It would be important if say, the police had a record on you which contained an officer's opinion that you were mentally unstable (but in reality you weren't)

2) This type of legislation is self-defeating.

I've worked for various levels of government, and when it comes to access to information, the first thing you learn is to never write anything down that can cause problems if the person demands to see the file. I've been told explicitly serveral times to NEVER write down your personal opinion in a file.
don muntean





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

PostPosted: Tue Oct 03, 2006 9:21 pm    Post subject: Reply with quote

Cool Blue wrote:


2) This type of legislation is self-defeating.

I've worked for various levels of government, and when it comes to access to information, the first thing you learn is to never write anything down that can cause problems if the person demands to see the file. I've been told explicitly serveral times to NEVER write down your personal opinion in a file.


In this era of 'government accountability' - we must not forget that the most important areas we need to apply this is with departments which make adjudicative and discretionary decisions in peoples lives.

"Transparency" - it isn't only about 'elected officials' - in fact - when we're talking the average citizen and their rights - it's this departmental transparency that is most engaging.

There's no accountability - without transparency and - there is no transparency - without disclosure of opinions and views and - consultations and deliberations.

Up to this point - no government agency in Saskatchewan has been releasing the opinions and views and consultations and deliberations of their employees - in fact - I was told by an SGI senior legal official that they operate on the pretext that they never have to release this nature of information/records.

Thus at least here in Saskatchewan - there are many files that shall contain such questionable materials!

Of course - government workers do have to record their opinions and views because if a file goes for review - say in the court - there has to be something which reflects the reason various decisions were made.

A lucid example might be made in this way; say that a government worker is talking on the phone with a client and - the client is 'recording the call' [of course after having informed them long before that such recording could happen in any communications with the client] so - there is this discussion and the government worker expresses a poor or biased opinion and - the client has it recorded - wouldn't it look odd - if the public servant couldn't produce their own records of the particular call.

The fact is government agencies and their workers should not take for grated all that they do - when in communications with clients...clients keep records too!

You write - "the first thing you learn is to never write anything down that can cause problems if the person demands to see the file" - so then - are you saying that govenment workers can continue to 'maliciously profile' - they just have to share such opinions and views - in a manner which cannot be requested or otherwise disclosed to a client? :?

If the opinions and views in question were indeed unbiased and valid - then - there aught not be any concern for a government worker - to record and disclose them - right?


Last edited by don muntean on Sat Dec 02, 2006 11:03 pm; edited 1 time in total
biggie





Joined: 06 Sep 2006
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Location: Ottawa, Ontario

PostPosted: Wed Oct 04, 2006 8:36 am    Post subject: Reply with quote

"If the opinions and views in question were indeed unbiased and valid - then - there aught not be any concern for a government worker - to record and disclose them - right?"


that would be true in some sort of mystical wonderland. Unfortunately that is not the case in the land of the whiney.. You could right a factual statement about somebody, and guaranteed they would find some reason to be offended.. then they would jump on the Arar band-wagon and next thing you know... $400 million lawsuit.
don muntean





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

PostPosted: Wed Oct 04, 2006 9:53 am    Post subject: Reply with quote

biggie rection wrote:
"If the opinions and views in question were indeed unbiased and valid - then - there aught not be any concern for a government worker - to record and disclose them - right?"


that would be true in some sort of mystical wonderland. Unfortunately that is not the case in the land of the whiney.. You could right a factual statement about somebody, and guaranteed they would find some reason to be offended.. then they would jump on the Arar band-wagon and next thing you know... $400 million lawsuit.


You think I'm "whiney" - gee yer not even close!

...AND for your info - I don't think 'he' should get five cents [I've proven what has happened to me - what has 'he' proven?] and - what does your answer really mean anyway - you think we don't need those information rights???
kwlafayette





Joined: 03 Sep 2006
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votes: 28
Location: Saskatoon Saskatchewan

PostPosted: Wed Oct 04, 2006 10:19 am    Post subject: Reply with quote

I can't decide, is that a leading question? Is goodness attached to answering a certain way, and badness to the other?
biggie





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votes: 10
Location: Ottawa, Ontario

PostPosted: Wed Oct 04, 2006 2:47 pm    Post subject: Reply with quote

don muntean wrote:
biggie rection wrote:
"If the opinions and views in question were indeed unbiased and valid - then - there aught not be any concern for a government worker - to record and disclose them - right?"


that would be true in some sort of mystical wonderland. Unfortunately that is not the case in the land of the whiney.. You could right a factual statement about somebody, and guaranteed they would find some reason to be offended.. then they would jump on the Arar band-wagon and next thing you know... $400 million lawsuit.


You think I'm "whiney" - gee yer not even close!

...AND for your info - I don't think 'he' should get five cents [I've proven what has happened to me - what has 'he' proven?] and - what does your answer really mean anyway - you think we don't need those information rights???


when did I say you were whiney - that wasn't my intention... I was refering to the country in which we live and the attitude of many members of the population.. Never did I indicate you fit or didn't fit into that group.

I'm not opposed to accessing information pertaining to me - excluding top secret information(like RCMP or CSIS files). I also am not terribly concerned about doing so - it is my feeling that if someone writes in a file that I'm an @%^hole, its probably because I was being one.. That doesn't end my life. Obviously there are some things that can be written that might cause issue - but I don't think that everything needs to be disclosed... Of course, as stated - I'm not opposed to such laws as long as they protect the foundation of investigation (ie. if you're being wire-tapped and all you need to do is an access to information request, that's ridiculous).

But I'm not going to demand such laws... I don't care enough, and I don't worry about the big bad brother ;)

On arar - I think since the country failed him, we owe him something - up to 4 million(i think thats a ridiculous figure as well, but its much more reasonable considering the torture etc..) I'd be ok with... but 400 millions? can anyone say profiteering?
don muntean





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Location: Saskatchewan

PostPosted: Wed Oct 04, 2006 8:29 pm    Post subject: Reply with quote

kwlafayette wrote:
I can't decide, is that a leading question? Is goodness attached to answering a certain way, and badness to the other?


:lol: - I guess that depends on whether or not one is the applicant or the civil servant...
don muntean





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

PostPosted: Wed Oct 04, 2006 10:04 pm    Post subject: Reply with quote

biggie rection wrote:
when did I say you were whiney - that wasn't my intention... I was refering to the country in which we live and the attitude of many members of the population.. Never did I indicate you fit or didn't fit into that group.

I'm not opposed to accessing information pertaining to me - excluding top secret information(like RCMP or CSIS files). I also am not terribly concerned about doing so - it is my feeling that if someone writes in a file that I'm an @%^hole, its probably because I was being one.. That doesn't end my life. Obviously there are some things that can be written that might cause issue - but I don't think that everything needs to be disclosed... Of course, as stated - I'm not opposed to such laws as long as they protect the foundation of investigation (ie. if you're being wire-tapped and all you need to do is an access to information request, that's ridiculous).

But I'm not going to demand such laws... I don't care enough, and I don't worry about the big bad brother ;)

On arar - I think since the country failed him, we owe him something - up to 4 million(i think thats a ridiculous figure as well, but its much more reasonable considering the torture etc..) I'd be ok with... but 400 millions? can anyone say profiteering?


Quote:

when did I say you were whiney - that wasn't my intention...

Reply:

Okay - I can be whiney - when needed! :)

You wrote in your other posting:

in the land of the whiney.. You could right a factual statement about somebody, and guaranteed they would find some reason to be offended

I don't think that this is the land of the 'habitually complaining' - if anything - people don't complain [about valid issues] enough! Especially in dealing with our provincial civil servants - how many people get walked on and just say "oh well"?

As for the second part of that comment - this isn't about civil servants who - "right (sic) a factual statement" - really why would you say that?

Your comment [while indeed it is sometimes the case] "you could write a factual statement and guaranteed they would find some reason to be offended" - only diminishes the seriousness of this issue.

This issue is about records which contain 'the opposite' of what you've described.

Of course - we must have this level of transparency in our provincial crowns and commissions and agencies - irrespective of the particular 'good or bad' information.

Quote:

Never did I indicate you fit or didn't fit into that group.

Reply:

:wink:

Quote:

I'm not opposed to accessing information pertaining to me - excluding top secret information(like RCMP or CSIS files).

Reply:

Again - that has nothing to do with this discussion - this is about provincial crowns commissions and agencies - this isn't about police departments or CSIS.

Quote:

I also am not terribly concerned about doing so - it is my feeling that if someone writes in a file that I'm an @%^hole, its probably because I was being one.. That doesn't end my life. Obviously there are some things that can be written that might cause issue - but I don't think that everything needs to be disclosed...

Reply:

Without access to these records we "the people" have no way of knowing if the records reflect accurate descriptions of an individual's words etc., in any exchanges which take place with the noted departments. We as applicants - have no way of judging if an adjunctive and/or discretionary decision - was based on a material fact or an bogus opinion.

When it's the noted "adjunctive and/or discretionary'' departments and we're talking about the nature of the records and information discussed - then - it does need to be disclosed.

Again - if there is nothing to hide in such records - then - there aught to be no issue to release this information to an applicant and - we're not talking about anything other than what is described in the FOIP legislation - in fact - these provisions have been there - since inception - yet - somehow - up until now these points have never been dealt with in any jurisdiction - now - they are being dealt with - right here.

Without a doubt - the people who drafted the FOIP standards - to be used universally - never intended that the legislation could be used by those crowns commissions and agencies yielding 'adjunctive and/or discretionary powers' to refuse access to records - which provide such specific information [opinions/views & consultations/deliberations] - in detail - about the activity on 'adjunctive and/or discretionary' files.

This is important to the future in terms of - the way things are done.

[incidentally Donald Rumsfeld was one of the early pioneers in the drafting of FOIP legislation in the 1970's!]

For example - when you see a file where the public servant exercises an 'adjunctive and/or discretionary power' and - in doing so - they invoke their own opinions and views of the client - we shall not be so inclined to see material and/or related decisions which are in some manner - capricious whimsical or - otherwise - out-of-order.

The only FOIP exemption that could be applied to such 'opinions and views' - would be this universal section - [as it reads in the Saskatchewan FOIP Act] - s. 15(1)(d):

'A head may refuse to give access to a record, the release of which could:

be injurious to the Government of Saskatchewan or a government institution in the conduct of existing or anticipated legal proceedings
;'

So of course - if they severed something within your file - using 'that' section - you would be calling your lawyer. Currently - they do not not sever with that section. Soon that'll have to change.

Quote:

Of course, as stated - I'm not opposed to such laws as long as they protect the foundation of investigation (ie. if you're being wire-tapped and all you need to do is an access to information request, that's ridiculous).

Reply:

Of course - as noted - this isn't about that.

Quote:

But I'm not going to demand such laws... I don't care enough, and I don't worry about the big bad brother

Reply:

Government's have all sorts of laws governing your life and activities - so - why not some providing 'transparency'' of their governing activity?

Naturally you don't have to demand such laws - as noted - they're already on the books - however - we haven't yet seen explication on these sections in any FOIP jurisdiction because up to this stage in FOIP history - no applicant has raised the points [and relevant citations] which we have.

If you don't worry about 'big brother' you may be helping communists and their star players - the NDP - a party who may never see a federal governance but - one that does often take provinces - in the socialist way of doing things - we're not supposed to 'worry' about what's going on in the back-rooms....

Now with all the turn-coat activity [like bob rae] who knows what to expect down the road? If the Liberals picked someone like him for leader and - if they were to again take Ottawa - we would have a 'situation' - of course - Liberal and NDP are closer together than Conservative and these 'other two'.

Could the NDP find a way to 'infiltrate and commandeer' the Liberal Party of Canada - or - have they effectively already done that?

Quote:

On arar - I think since the country failed him, we owe him something - up to 4 million(i think thats a ridiculous figure as well, but its much more reasonable considering the torture etc..) I'd be ok with... but 400 millions? can anyone say profiteering

Reply:

Well I may get yelled at by strangers here for saying that I'm not sure that I even believe his story.

How can we really know that he was treated as he says he was? Of course it may have happened but - it seems to me that this is much less an issue of rights and more an issue of incompetent facts that led to his problem. The Canadian officials sent him to the U.S. who then sent him to Jordan who then sent him 'home to syria' - I cannot see why he expects the government of Canada to pay him so much. [he aught to sue the syrian government]

Also - did paul martin and the liberals call him and apologise? It's not Mr. Harper and the conservatives who have to apologise - it's paul martin and the liberals.

What is happening to me is not in any manner like that which happened to him [nor do I suggest this is what you think] - of course - I still have the implant within my sinus - no answers - no apology - nothing - :?

Not that I wish to go into it - but - i wonder how any others might be enduring what I've been - for as long as i've been - since June 5, 2002 - yes - I could tell you about the fear and the pain within my heart over this acute abuse - but - I think most people can figure it out on their own.

So one day - I shall be compensated and - I think i well deserve every cent I get and I'm going to try to get every cent i can! 8) - [i'll need shades because that much gold shines bright! ] :o
biggie





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PostPosted: Wed Oct 04, 2006 11:46 pm    Post subject: Reply with quote

In general, I am in agreement... I'm just less concerned about this topic, because I find that there is little information in most government agencies that could do any real harm, regardless of its validity...

Thanks for pointing out the right thing - saw that this morning, was hoping nobody would notice haha.

"Well I may get yelled at by strangers here for saying that I'm not sure that I even believe his story. "

Oh, I agree.. I question the validity of his claim as well. But in interest of judicial powers and legitimacy, I think we should arrange some sort of compensation. Or we could pay a fortune on lawyers and likely still lose :(

"I don't think that this is the land of the 'habitually complaining' - if anything - people don't complain [about valid issues] enough! Especially in dealing with our provincial civil servants - how many people get walked on and just say "oh well"? "

Good point - let me clarify - people whine about pointless things, stupid things that don't matter... the whiney are the loudest unfortunately. For example; Ottawa(municipal) is considering legislation restricting scent(including scented soaps!) in public areas. Obviously that is somebody with too much time on their hands looking for something to complain about.
You make an excellent point about people failing to complain about the important things..

As for not worrying about big brother - I do my best to fight and educate so that "big brother" doesn't become an issue. I have no concerns about big brother with a strong conservative government - this country is way too transparent. We will see if the NDP ever manage to come into power - then I might create a bunker and stock up on illegal weapons(since they will outlaw all weapons upon seizing power ;) ) Until then, I won't be too worried.
don muntean





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

PostPosted: Sat Dec 02, 2006 2:37 am    Post subject: Re: Freedom of Information Reply with quote

don muntean wrote:
Soon the Saskatchewan Information and Privacy Commissioner is going to be releasing an important Report one which shall deal with the Saskatchewan Human Rights Commission and their bad-faith handling of complaints [filed for religious discrimination] made by myself and my godbrother in July 2002 - so with that - here are the major FIOP points to be covered within this noted forthcoming Report:

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:

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


Of course this exemption - ‘subject to subsection (2)’ - is very important in the assessment of what happens with personal information when it is ‘personal opinions or views of an individual employed by a government institution’ and - at the same time constitutes - one's personal information:

24(2) “Personal information” does not include information that discloses:

(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;
[emphases added]

Of course SGI/SHRC have also misapplied section 17(1)(b) of the Act - in the refusal of their consultations and deliberations - by preclusion of subsection (2).

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

(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
; [emphases added]

Incidentally - “Official Record” - is also interpreted as an ‘overall collection’ of records - i.e.: the “File”.

Evasions of these sections are a common problem in Saskatchewan [and other jurisdictions]!

All the provincial departments misapply section 17 of the FOIP Act – like a blanket refusal. What have they to conceal?

Further - in section 17(2)(f)(i) of the Act it says:

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

(f) is

(i) an instruction or guide-line issued to the officers or employees of a government institution;


So with FOIP legislation - we have these basic information standards to govern the beforementioned points:

Right of access

5 Subject to this Act and the regulations, every person has a right to and, on an application made in accordance with this Part, shall be permitted access to records that are in the possession or under the control of a government institution.

Individual’s access to personal information

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.


Thus through the authority of s. 5 every person has the right to access records – the Act further broadens access rights in s. 31(1) - by extending the provisions to - personal information contained in a record and in s. 24(2)(c) of the Act we've seen what important information is included as personal information.

So we have access to records and personal information – then - we look at section 8:

Severability

8 Where a record contains information to which an applicant is refused access, the head shall give access to as much of the record as can reasonably be severed without disclosing the information to which the applicant is refused access.
[underline added]

In s. 8 of the Act we are instructed that the head shall give access to as much of the record as can be severed – without disclosing the information to which an applicant is refused.

So what could be considered the most important 'personal information' in an adjudicative or discretionary file?

This information is [as noted] - outlined in section 24(2)(c) of the Act:

The personal opinions or views of an individual employed by a government institution given in the course of employment, …with respect to another individual

I urge Saskatchewan's population to NOW request the personal opinions and/or views of any individual employed by a government institution - where they have had dealings that individual and - such dealings may be of concern.

Of course - this Report shall impact other jurisdictions as well - as the wordings in the various provincial FOIP legislation read very much the same as noted above [of course the section numbers may differ].

Well there it is - the Pandora’s box for them!


The Report has just been issued and - what a Report!

We were successful on every point we advanced in this Review! The 22 page Report shall be posted here on this thread - in the next few days!

Here is an exerpt:

"...I do not agree with the [human rights] commission's reasoning that because the Applicants did not initiate an appeal through the [human rights] Commission and thereby trigger a right to see their file they forfeited their right to seek access under the Act...As evident in both cases, the government institution provided an incorrect address for our office to the Applicants...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;..."

Here is an exerpt from the Chief Commissioner's convoluted reasoning within her submission to the Information and Privacy Commissioner [as quoted in the Report]:

"...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 co-operation 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
..."

Here is what the Information and Privacy Commissioner subsequently wrote in his Report:

"...I find that section 15(1)(c) of the Act does not apply to any of the withheld records in this present case..."

There were no "witnesses" [just us and the respondent] to the violations which we were forced to complain to the human rights commission about - just prior to our complaints to the human rights commission [and following a Letter of Demand] the respondent in the original complaint [employment network inc. in regina] alleged [as a defence] that we 'harrassed' them while getting employment referral services [in a letter couriered to the human rights commission the day before we called to file complaints] - thus - these "witnesses" that are noted in the Chief Commissioner's submission are peculiar:

"...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...".

Who are these so-called witnesses [who also 'feel a sense of harassment by the applicants'] and how did they come to be giving statements in this human rights investigation?

The Human Rights Commissioner's attempts to conceal these liable statements failed!

In stating; "...would not now wish their statements and corporate documents released to the applicants..."- the human rights Commissioner was improperly positing an excuse for these so-called witnesses - to conceal slander in their statements during the human rights investigation.

We have significant evidence that these so-called witnesses [and with 'corporate documents'!] are actually saskatchewan government insurance employees [they were the cause of this and - other issues]!

There are two important records in this regard that are being withheld [which cannot be] and - I shall explain that [and more] soon!

So that is just a sample of the Saskatchewan Information and Privacy Commissioner's Report and - the important issues and points brought forward - check back soon for the entire Report and the submissions to the review process from myself.

So just to note it again - now there is conclusive explication by the Information and Privacy Commissioner - on an important point - for everyone's benefit:

"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".

That is indeed a pandor's box for provincial public servants!


Last edited by don muntean on Sat Jan 27, 2007 11:58 pm; edited 5 times in total
don muntean





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PostPosted: Sat Dec 02, 2006 5:19 am    Post subject: Reply with quote

Here is one of my submissions to the Information and Privacy Commissioner - a very good read!

[addresses removed]

March 29, 2005

RE: SHRC Submission, dated February 15, 2005

Dear Mr. Dickson:

Thank you for providing a copy of Donna Scott’s submissions - with respect to their attempted justifications of their refusal to grant access to our human rights complaint file.

Indeed with this letter - the commissioner has presented an atypical defense.

Notwithstanding their attempt to make it sound authorized - it isn’t.

Our original supplement to your office dated March 08, 2004 and - our most recent January 19, 2005 submissions - contemplates and rebuts these arguments as submitted within the commissioner’s letter.

However, the commission has presented some egregious points within this letter and we certainly have no difficulty to demonstrate that these arguments are altogether out-of-context to the Freedom of Information and Protection of Privacy Act. [the Act]

A point-by-point redress best facilitates as a rejoinder method for the commissioner’s immaterial arguments.

“... I have refused to release the rest of the pages to the applicants because, in my opinion, they constitute documents to which an exemption...Section 15(1)(c) - refusal to give access to a record the release of which could interfere with a lawful investigation or disclose information with respect to a lawful investigation...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...” [emphases added]

Here the commissioner has admitted that a release - would not interfere with the investigation into our human rights complaints - because the human rights process is completed.

Her “opinion” - [which we are to learn later in her letter] - is warped by some ill-applied discretion concerning the protection of the [so-called] privacy interests - of the [so-called] witnesses in their investigation - in her “opinion” - we are entitled to ‘nothing’ under the Act - nothing but - a refusal.

In an attempt to gloss over this statutorily incorrect refusal - we see the commissioner cite from your previous Reports - while disregarding the basic points of the Act.

As we have noted in our discussions - the commission presumes that they are not bound by disclosure provisions within the Act.

In their opinion - it makes no difference that [most of] the refused information is defined as our “personal information” - under the meaning of sections 24(1)(h) and 24(2)(c) of the Act.

Please allow us to cite these sections:

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:

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

Of course this exemption - ‘subject to subsection (2)’ - is very important in the assessment of what happens with personal information when it is ‘administratively recorded’ information and at the same time constitutes - personal information:

(2) “Personal information” does not include information that discloses:

(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; [emphases added]

Of course the commission has also misapplied section 17(1)(b) of the Act in the refusal of their consultations and deliberations by preclusion of subsection (2).

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

(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; [emphases added]

As we have noted previously in our Supplement - sections 5 and 31 of the Act delineate a twofold access right - as pertaining to - ‘records’ and - ‘personal information’.

We maintain that the application of section 15(1)(c) of the Act cannot be applied [especially] to the exclusion of sections 17(2)(b) and 24(1)(h) and 24(2)(c) of the Act.

It follows that the Act cannot be applied - so as to be self-defeating.

Practically speaking - the commissioner’s reasoning cedes an applicant’s rights to access to personal information under sections 5 and 31(1) of the Act.

If the interpretations of the commission are accepted - then how are these noted provisions abrogated?

“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.”

The commissioner is attempting to present through too simplistic an assumption - that their refusal to release the noted information - is to be supported by your previous Reports - of course while citing them - there is a failure to understand your words:

“...In your Report 2004-006, you also note that this is a discretionary exemption.

“To exercise its discretion properly, the government institution must show that it considered the objects and purposes of the Act… and did not exercise its discretion for an improper or irrelevant purpose.”

In any case, my purpose was to maintain the integrity of the investigative process in a manner that respects the purposes of the Act...” [emphases added]

We do not feel that her purpose was as noted - because we later read:

“...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...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 (sic) that for which they were originally gathered...it would be much harder to get the co-operation 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...” [emphases added]

Just who were these so-called witnesses that - “...would not now wish their statements and corporate documents released to the applicants...” - is it Saskatchewan Government Insurance and/or other government agencies?

The commissioner’s understanding of the explications within your Reports appears as dissimulated - as her interpretation of the Act:

“...In considering objects and purposes of the Act, in your Report 2004-003, you recognize that the underlying objective of freedom of information legislation is full disclosure and openness of agencies to public scrutiny...” [emphases added]

The commissioner here admits knowing these ‘objects and purposes’ - yet the commissioner ignores the relevance and function of “freedom of information legislation”.

To this end - the commissioner maneuvers a misrepresented rationalization:

“...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...” [emphases added]

So in that statement we noted the commissioner’s factual deflection.

The commissioner’s attempted transfer of our access rights to the “code” - clearly bears witness to the commissioner’s illusory ‘overriding jurisdiction’ claims.

This issue with them that you’ve revealed to us months ago - has of course beleaguered this process since the start.

It incidentally seems incredible that the commissioner well accepts the authority of the Act where in her ‘opinion’ - it extends them provisions for refusals.

Certainly the true objectives and purposes of the Act are lacking within her contrived disclosure process - as an example - within her scheme - there exist no provisions - as outlined in sections 15(1)(d), 17(2)(b), 24(1)(h) and 24(2)(c) of the Act.

“...I believe the disclosure under this process provides the openness and transparency of action that is at the root of freedom of information legislation...” [emphases added]

Well whatever it is the commissioner claims to believe - isn’t relevant - again why the indirect references - to rights under the Act - in statements like “...at the root of...”?

Unarguably - access to information rights - are governed by the Act - not their “code”.

As you’ve been cited by the commissioner:

“...To exercise its discretion properly, the government institution must show that it considered the objects and purposes of the Act… and did not exercise its discretion for an improper or irrelevant purpose...” [emphases added]

Considering the commissioner’s elaborate apologetics in support of her position - it is sure that even the commissioner has perceived the fact that the commission hasn’t exercised it discretion properly - at this point we feel that this indicates concealment.

In any sense the Act is clear about an individual’s rights to access to records and personal information - that the commissioner has even endeavored to transfer statutory access rights to the “code” - shows that there is apprehension to release the information/records - and for what reason?

This quote best evidences the commissioner’s motivated nonchalance:

“...I recognize that your Report 2004-006 also establishes that the investigative purpose does not create a presumption that the release of any particular document would necessarily disclose information with respect to the investigation. That is a more complex matter...”

It isn’t so ‘complex’ - inasmuch as section 7 of the Act - which outlines the procedure of segregating records/information which are responsive to a request - such as ‘personal information’ - and to sever the non-responsive information [like third party names, addresses etc.,] - section 7 pre-supposes a release of the ‘record’ or document and - the responsive information - while severing the non-responsive information from the record or ‘document’.

“...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...”

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 - and considering that we were informed by the investigator Julie Powel - on March 11, 2003 [by Email]:

“...At the end of the investigation, I will disclose to you and Mr. Rehaume what evidence has been gathered...” [Email from Julie Powel Date: Wed, 12 Mar 2003 09:45:17 -0600]

We were also told they would be sending us the ‘case report’.

So what happened? The commissioner’s comments are sort of like a kick in the head - especially considering the noted comments from the investigator.

“...Freedom of information and protection of privacy are joint objectives in the same legislation...” [emphases added]

Which legislation - certainly - the Act oversees these “objectives” - not the “code”.

“...It (sic) 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...” [emphases added]

In this we see more prejudiced reasoning - again it reads like that kick in the head just mentioned - and to say ‘within the purposes for which the records were created’ - is to disregard too much.

What are the potential reasons that applicants may wish to access their administrative records/information held by government institutions?

Well in this instance we experienced serious aberrations in the human rights process - starting at Intake. We surely see evidences that we need to examine further - and the Act delineates extensive provisions to this end.

Within the “code” [and in the Act] there are provisions that may be invoked when bad faith actions and/or omissions and/or decisions etc., are observed from commission staff.

Of course you well know all this - and more importantly - their Q.C. commissioner knows!

Their process is not exempt from examination under other enactments. We certainly see the motives for the commission to advance this superfluous-judicial argument.

“...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...” [emphases added]

Later in the letter the commissioner states:

“...it would be much harder to get the co-operation of witnesses ...”

Yes they cooperated ‘because of the operation of the law’ - however - it more and more appears like the commission does not implement any information gathering standards in their investigations?

It goes without saying - there is no question of ‘cooperation’ for people who are solicited to give evidence - when they are real witnesses to a complaint - and just who are these ‘witnesses’?

Why are there so-called witness statements from outside the respondent’s business - are perchance these “witnesses” [with their false tales of harassment] - from SGI?

In the next quote we see the apparent possibility:

“...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 (sic) that for which they were originally gathered...” [emphases added]

Who are these so-called witnesses - as there weren’t any witnesses to the original complaints ‘outside’ the scope of Respondent’s business?

The commissioner states that - It is not within the purview of our work to determine whether this fear is based on reality - then we must ask - what so-called evidence or information did these so-called witnesses submit into this investigation?

Considering the Respondent has alleged that we harassed them - did the commission go looking for others - who might appear to have had the same problem with us?

It’s all too coincidental - that it appears as though they used this point - that the witness giving the statement feels a sense of harassment by the applicants - but then the commissioner also says - It is not within the purview of our work to determine whether this fear is based on reality - what right did they have to collect and use these so-called statements?

What is the real reason - these witnesses...would not now wish their statements and corporate documents released to the applicants - is it motivated by some sense of ‘loss’ for these witnesses - as indirectly expressed in section 19(1)(c)(i) of the Act?

Notwithstanding - applicants are entitled to records and information - defined as ‘personal information’ - in section 24 of the act - in the form of opinions and views.

In our way of seeing - section 19(1)(c)(i) of the Act - doesn’t read like section 15(1)(d) of the Act - thus we posit that the commission shall not ultimately plead application of section 19(1)(c)(i) of the Act to conceal third-party legal liabilities.

“...In my view, taking the privacy interests of others into account is a legitimate purpose that is not improper or arbitrary...”

The privacy interests of their witnesses’ - isn’t at the center of this refusal - as noted by the commissioner herself - these witnesses...would not now wish their statements and corporate documents released to the applicants.

“...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...” [emphases added]

This is a clear example of the commissioner entering a totally irrelevant interpretation - I note that this section does not refer only to the investigation to which the records relate, but an investigation.

So let us look at the phraseology of section 15(1)(c) of the Act: interfere with a lawful investigation or disclose information with respect to a lawful investigation - the phrasing is in the present tense - double singular - “...a lawful investigation...” - for both parts.

Regardless the amount of circuitous argumentation the commissioner may apply - there simply isn’t foundation for the interpretation that the commissioner is alleging here.

“...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...would be much harder to get the co-operation 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...” [emphases added]

Why is the commissioner advancing this interpretation? Without question their file materials are subject to scrutiny outside the ‘human right process’.

The commissioner is augmenting this argument within her immaterial interpretations of section 15(1)(c) of the Act - as evidenced by the commissioner’s next comment:

“...I believe this would leave potential witnesses feeling very vulnerable and uncooperative. For this reason, disclosure of evidence would interfere with other investigations...” [emphases added]

Section 15(1)(c) is discretionary - reason indicates that it applies in the singular and in the present tense.

Logically - if one requested the information during the investigation - and such disclosure could interfere with the investigation - then it could be refused - the only legitimate reason that the head could refuse to disclose information - is if it would interfere with that investigation - that is what the wording of section 15(1)(c) conveys.

To say that the vulnerability of potential future witnesses - who may not thus cooperate with them in future investigations [knowing that they and their representations may be called to question outside the human rights process] is the reason that disclosure of evidence would interfere with other investigations is simply unacceptable - nor has this position foundation within the Act.

We assert that this elaborately manufactured interpretation is directed by a very real sense of a necessity for concealment.

The commissioner is well aware of these facts - and aware that they have taken too great an amount of time - in taking such a sidestep.

The next part of the commissioner’s letter deals with section 17 and three citations not noted in the commissioner’s February 03, 2003-refusal letter.

We have already discussed the section 17 material at length - however - there are a couple additional points to be broached.

First - the commissioner cites your Report [2004-001] with a view to justify a refusal based on a what appears as a - general interpretation - of consultations/deliberations.

Of course we maintain that a reading of section 17(1)(b) is to be contrasted to section 17(2)(b) of the Act.

We also submit that with application of the 17(2)(b) exemption - there must be a consideration of section 17(2)(f)(i) of the Act.

There also has to be consideration of section 24(2)(c) of the Act when disclosing consultations and deliberations.

According to the commissioner there were [only?] seven individuals generating records which are claimed as severable - under section 17(1)(b) of the Act.

“...There are also notes to the file which record general observations and opinions...”

As confirmed through section 24(2)(c) of the Act - applicants are entitled to ‘opinions and views given in the course of employment’ by officers and employees of government institutions - where they are about the applicant.

Logically - in what part of an ‘official record’ are ‘opinions and views’ recorded?

They would be [primarily] found within consultations and deliberations.

“...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...” [emphases added]

The commissioner notes that it was our right to complain [but not that the complaints were justified] - our letters to them easily demonstrate what we were saying - thus anyone may comprehend the motives behind the commissioner’s interesting choice of words.

Particularly - potential for harm and breaches of security - this too was used in the so-called determination against us. Never was there any possibility of potential for harm and breaches of security.

Why is the commissioner ill-profiling us in this letter? If even indirectly.

The respondent claims [as their defense] that we harassed them - the before-mentioned [implausible outside] witnesses claimed that they felt a sense of harassment - and at last - so did the commission - pretty systematic profiling - if you ask us.

“...The records covered...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,

c. To report conduct of the applicants for the purpose of determining whether there was a potential risk of harm or security concern...it was within the job duties of those making these records to record their opinions and observations for possible future action...” [emphases added]

In consideration of the first point - we would note that sections 17(2)(b) and 17(2)(f)(i) of the Act extends that an applicant should receive the records detailing - ‘advice and opinions recorded in the course of employment’ - as found in an adjudicative file.

We assert that the Act conducts an clear interpretation - that within adjudicative records which are classified as consultations or deliberations - wherein officers or employees of a government institution give and/or receive “advice or direction” on the file - it does not follow that these consultations or deliberations are severable.

With respect to the second point - they are in the words of the commissioner - ‘opinions and observations’ - and as noted under section 24(2)(c) of the Act - we are entitled to those - further - since the commissioner called and complained to the Regina City Police - it begs asking - what other profiling actions did they take - and - on whose behalf?

The commission entered significant problems into this process by saying - “we don’t cover Krishna here” - all the rest was a consequence of that.

For the commission there are now too many questions with no answers . . .

At last - the three citations not noted in the commissioner’s February 03, 2003 - response cover letter.

“...Section 22(a) . . . While the advice seems more practical than legal it is nonetheless based on our lawyer’s assessment of the legal rights and responsibilities involved, and is therefore covered by solicitor client privilege. In any event, this record is also exempted by section 17(1)(b) . . . ”
The commission cannot apply section 22(a) of the Act to these records - as Mr. xxxxxx isn’t an outside legal counsel - he being situated in their ‘legal department’ compels contradiction.

Practically speaking - Mr. xxxxxx is an officer-employee of the human rights commission.

As such - this information isn’t severable as per sections 17(2)(b) and [to a lesser extent] 24(2)(c) of the Act. What ‘practical advice’ is it to counsel one to make a mistake?

The points about section 29 - ‘personal information of other individuals in the respondents data base’ - allegedly used to contrast the services we received.

We are not interested in that information - it is irrelevant.

We understand what materials are severable under section 29 of the Act - and these exemptions do not impact the personal information and administrative records/information which are responsive to our request.

“...Section 31(2) These documents refer to personal information compiled solely for the purpose of determining qualifications for employment. These documents were acquired for comparative purposes in determining whether the applicants were discriminated against in relation to others. You will note that wherever section 31(2) is referred to there is also a reference to section 15(1) . . . ”

Section 31(2) of the Act is an exemption that is to be applied only if it were a government institution to which we had applied for employment.

Certainly section 31(2) of the Act cannot be applied by the commission to negate a proper interpretation/application of section 24 of the Act.

It appears odd that Mr. xxxxx generated this record on May 09, 2003 - before the human rights complaint process - yet the commissioner attaches section 15(1)(c) of the Act to it.

Thus - we come to the end of the too many aberrations within their defense of their process.

Whatever the numerous malfeasances they’ve been engaging in - it hasn’t at all stopped!

It is very soon to be three years since we heard them say - “we don’t cover Krishna here” - time seems to be of little consequence to the commissioner - as it isn’t her waiting for justice.

The human rights commission has dehumanized and dispossessed us with their process.

We will spare you our chronicle of suffering - you have endured its narration in the past - and the ‘official record’ likely speaks for itself.

The minister responsible was informed and was fully apathetic.

At the end-of-the-day - this obvious deficiency of a fair and impartial administration of the civil and legal rights of the people of Saskatchewan justifies reporting the entire matter to the federal justice minister - clearly unapologetic apathies - may even likewise be besmirching other judgments?

We respectfully ask that all our points be considered - within this letter and within the January 19, 2005 letter and of course in our original March 08, 2004 Supplement - as we are hopeful that nothing shall be overlooked - we do not wish to waste neither yours nor our time in repeating too much.

All of which is respectfully submitted.



Donald J. K. Muntean


Last edited by don muntean on Wed Feb 13, 2008 3:15 pm; edited 1 time in total
Mac





Joined: 02 Sep 2006
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votes: 35
Location: John Baird's riding...

PostPosted: Sat Dec 02, 2006 2:00 pm    Post subject: Reply with quote

Executive summary for those of us who don't have the time or inclination to plow through volumes?

-Mac
don muntean





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PostPosted: Sat Dec 02, 2006 4:17 pm    Post subject: Reply with quote

Mac wrote:
Executive summary for those of us who don't have the time or inclination to plow through volumes?

-Mac


We all have clearer rights and - the Saskatchewan Human Rights Commission are about to get into a whole lot of trouble! :wink:
Mac





Joined: 02 Sep 2006
Posts: 5500
Reputation: 104
votes: 35
Location: John Baird's riding...

PostPosted: Sat Dec 02, 2006 4:57 pm    Post subject: Reply with quote

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
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