Information And Privacy CommissionerOntario

1
Information And Privacy Commissioner/Ontario
THE APPEAL PROCESS IN ACTION

• Robert Binstock, Registrar
• Leslie McIntyre, Mediator
• Irena Pascoe, Adjudicator
• September 14, 2001

2
(No Transcript)
3
TOPICS

• Welcome and Introductions
• Intake
• Mediation
• Adjudication
• Questions
• Wrap up

4
Intake
5
Intake - Screening

• Registrar and Intake Analysts have delegated
  authority to screen out files where
• (a) The matter, on its face, is not within the
  IPCs jurisdiction or
• (b) The matter falls within the IPCs
  jurisdiction, but the matter, on its face, is one
  that the IPC believes should not proceed through
  the appeal or privacy complaint process.

6
Intake Streaming

• Registrar streams files into different dispute
  resolution and adjudicative streams - Intake,
  Mediation and Adjudication.

7
Role of Intake Analyst

• Public Contacts mail, phone and in-person.
• Screen out appeals.
• Other types of duties
• clarify appeals
• explain appeal process
• redirect to other government organizations
• deemed refusals

8
Role of Program Assistant

• Intake - open files, request records and appeal
  fees.
• Program support to Intake Analysts, Mediators and
  Adjudicators.

9
Intake Case Example

• Request All records concerning an Employment
  Standards claim against requesters company.
• Decision Partial disclosure. Personal
  Information denied as compiled as part of
  investigation into possible violation of law.
  Copies of IPC orders included.

10
Intake Case Example

• Intake Matter decided before. Wrote to
  appellant requesting submissions. Included 3
  orders on point.
• Decision Appeal was dismissed and screened out
  as matter had been decided before. FOIC copied
  on letter to appellant.

11
Intake - Statistics

• IN 2000
• 20 (173) of all appeals closed (853) were closed
  at Intake
• For appeals closed at Intake 78 were withdrawn,
  16 were screened out, and 6 were abandoned.

12
Mediation
13
Mediation - Streams

• An appeal that moves to the Mediation stage, is
  assigned to one of the following streams
• Regular Appeal
• Straightforward Appeal or
• Reasonable Search Appeal.

14
Mediation - Regular

• The vast majority of appeals are processed in the
  Regular stream.
• The Mediator contacts the parties, investigates
  the circumstance of the appeal and attempts to
• Settle all issues in the appeal or
• If not settled, narrow the issues that proceed to
  Adjudication.

15
Mediation Straightforward

• Appeals where the sole issue is a deemed refusal,
  time extension, transfer or adequacy of decision.
• The assigned Mediator also acts as an
  Adjudicator.
• After a short period of mediation, the Mediator
  has the authority to issue an Order, if not
  mediated.

16
Mediation Reasonable Search

• Appeals where the sole issue is whether the
  institution has conducted a reasonable search for
  records responsive to the request.
• One Mediator attempts to settle appeal.
• Another Mediator is designated as an Acting-
  Adjudicator, who can issue an Order if not
  settled.

17
Role of Mediator

• The goal of the Mediator is to assist the
  parties
• to fully and clearly understand issues in
  dispute
• to reach a voluntary, mutually acceptable
  resolution of some or all of the issues in
  dispute and
• to reduce the number of records at issue.

18
Methods of Mediation

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

19
Advantages of Mediation

• Each party can explain its position.
• Retain control by working together.
• Issues are clarified, options generated, and
  agreements negotiated.
• Quicker than formal dispute resolution.
• Win-win settlement that might not be possible
  through Adjudication.
• Builds trust, understanding and communication
  between parties.

20
Mediation Case Example

• REGULAR APPEALS - Example 1
• An unsuccessful applicant for a job as a police
  officer, requested his application file.
• During mediation, it was clear what he really
  wanted was to know why he wasnt hired.
• Mediator settled by arranging a meeting between
  the appellant and the person who interviewed him.

21
Mediation Case Example

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

22
Mediation Case Example

• STRAIGHTFORWARD APPEALS
• The appellant appealed a lengthy time extension.
• The Mediator was able to settle the appeal when
  the institution agreed to release records in
  batches, as the were ready, rather than as a
  whole.

23
Mediation Case Example

• REASONABLE SEARCH
• An appellant appealed the municipalities decision
  that no records existed relating to the removal
  of trees near his property.
• The Mediator was able to determine that what the
  appellant really wanted was to understand why the
  trees were removed.
• After the Mediator arranged for the appellant to
  receive an explanation, he agreed to close the
  appeal.

24
Mediation - Statistics

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

25
Adjudication
26
Adjudication

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

27
Overview of Inquiry Process

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

28
Inquiry - Step 1

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

29
Inquiry - Step 2

• Second party (usually appellant) proceeds next.
• Same or modified NOI, along with a copy of first
  partys non-confidential reps.
• Second party has three weeks to submit reps.
• Adjudicator decides whether to invite reply reps,
  or issue an order.

30
Inquiry - Step 3

• Adjudicator may send a modified NOI to the first
  party, along with a copy of the second partys
  non-confidential reps.
• First party has 2 weeks to submit reply reps.
• First party may not raise any new issues in
  reply.
• Adjudicator issues order.

31
Sharing of Representations

• In their reps, parties must indicate clearly and
  in detail
• which information in the reps, if any, the party
  wishes the Adjudicator to withhold and
• its reasons for this request.

32
Sharing of Representations

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

33
Sharing of Representations

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

34
Confidentiality Criteria

• Adjudicator may withhold information contained in
  a partys reps where
• Disclosure would reveal substance of a record
  claimed exempt e.g., quotation from record at
  issue
• The information would be exempt under Acts- e.g.,
  personal information
• The information is otherwise confidential e.g.,
  Wigmore four criteria for confidential
  communication

35
Adjudication Case Example

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

36
Reconsideration of a Decision

• Criteria for reconsideration of order or any
  other decision
• A fundamental defect in the adjudication process
• Some other jurisdictional defect in the decision
  or
• A clerical error, accidental error or omission or
  other similar error in the decision
• IPC will not reconsider simply on basis of new
  evidence being provided.

37
Adjudication - Statistics

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

38
Adjudication - Statistics

• Cases resolved by step
• Step 1 35
• Step 2 50
• Step 3 15 
• Many cases resolved after Step 1 result one
  party never had to make reps.
• Most Step 1 cases involved reverse onus
  institution never had to make reps.
• Tip Issue more detailed decisions to increase
  chance of reverse onus.

39
IPC Resources

• Code of Procedure
• IPC Web site www.ipc.on.ca

40
Thank You

• Questions welcome.