PO-4504

The Safety, Licensing Appeals and Standards Tribunals Ontario (the tribunal) received a request under the Act for access to records related to two cases that the requester had before the tribunal. The tribunal identified records responsive to the request and took the position that the records were not subject to the Act due to section 65(3.1) and the common law concept of adjudicative privilege (or deliberative secrecy). Alternatively, the tribunal claimed the discretionary exemption at section 19 (solicitor-client privilege) in relation to some of the responsive records. The requester also alleged a conflict of interest on the part of the individual who processed her access request.
In this order, the adjudicator upholds the tribunal’s decision in part. The adjudicator finds that the claim of conflict of interest is not substantiated and dismisses that aspect of the appeal. She upholds the tribunal’s decision to withhold the adjudicators’ personal notes and draft decisions under section 65(3.1). However, she finds that there is insufficient evidence to conclude that the remaining records at issue are excluded from the scope of the Act under section 65(3.1). She also finds that the common law concept of adjudicative privilege or deliberative secrecy cannot be claimed in the alternative to section 65(3.1) in response to a request under the Act. As a result, she orders the tribunal to issue an access decision in relation to those records, considering the possible application of section 49(a) (discretion to refuse requester’s own personal information), given the nature of the records requested. In addition, the adjudicator decides that the tribunal’s claim of section 19 over certain emails is permitted, although this claim was made late. However, she orders the tribunal to consider whether this exemption applies when read with section 49(a), given the nature of the records requested.