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December appeal rulings deal with internal complaints, what's "reasonably" related

Fred Lum/The Globe and Mail
Fred Lum/The Globe and Mail

When is a person entitled to the results of an internal complaint at a public institution? Here are two noteworthy FOI appeals published in December.

The one about whether complainants are entitled to the findings of an internal investigation

An individual complained to the University of Calgary that her research contributions had not been properly credited in four scholarly articles. The university formed a committee to investigate the allegation and concluded there had been no breach of “academic integrity.” When the woman wasn’t provided with a copy of the committee’s final report, her lawyer filed a freedom of information request. The university denied it, under the rationale that the report contained “the personal notes, communications or draft decisions created by or for a person who is acting in a judicial or quasi-judicial capacity” within the terms of section 4(1)(b). 

The woman appealed the decision, explaining:

“The basis of the complaint was that the physician researcher with whom I worked took full credit for my work without allotting authorship to me. My legal counsel and I had established four full sections of the University’s policies which had been clearly breached by his actions. In the end, however, we were informed that my claim was not substantiated, with no reason provided. I requested the report that had been prepared by the committee and received no reply. I filed a FOIP request for the specific 1-2 page report that would have been submitted by the committee. This report would contain the reason for their decision. I want no personal information, just the report containing the reason that they found the claim to be unsubstantiated. I reject the idea that because the committee served in a ‘quasi-judicial’ role that I am not entitled to the specific report outlining the decision.”

Adjudicator Teresa Cunningham examined and cited a significant amount of case law, which is all highlighted in the decision. In the end, the adjudicator found that the committee was not a quasi-judicial decision maker and ordered that the final report be released. Ms. Cunningham did note that the university was not precluded from applying exceptions to disclosure if any exceptions apply.

Note: If you are the appellant in this case, we’d like to talk to you:

The one that deals with what types of records ‘reasonably relate’ to an FOI request

This appeal was filed from a homeowner in St. Catharines, Ont. There was a water main break near the individual’s property and they filed a claim against the city; it was denied. Afterward, the individual submitted an FOI request for “all notes and records related to the review of the claim.” The city denied the request in full, withholding all 26 pages under the discretionary exemptions in sections 7(1) (advice and recommendations) and 12 (solicitor-client privilege) of the Municipal Freedom of Information and Protection of Privacy Act. The homeowner then appealed. During the adjudication process, the city identified an additional 82 pages of records. One of the issues considered was whether invoices relating to the insurance adjuster were responsive to the request. 

On this, the adjudicator said:

“On the topic of responsiveness, the appellant’s position is that her request should be interpreted broadly and that records that are reasonably related to her request should be disclosed. The city has not specifically addressed its view about why the invoices are not responsive to the request. However, it argues generally that the appellant has not requested ‘all’ records related to the claim, but only those records that specifically relate to the city’s ‘review’ of the claim, which I understand to mean the substance of its review. The appellant submits that her request should be so narrowly construed. In my view, the invoices are reasonably related to the request. They pertain only to the insurance adjuster’s review of the appellant’s claim against the city. I disagree with the city that the request is to be narrowly construed to include only records that reveal the substance of the city’s assessment of the claim. I find the invoices to be responsive and I will therefore consider the city’s alternative claim that the invoices are exempt from disclosure under section 12.”

The adjudicator sided partially in the appellant's favour, ordering some of the information to be disclosed.

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