Information And Privacy Commissioner/Ontario Robert Binstock, Registrar Leslie McIntyre, Mediator...

Information And Privacy Information And Privacy Commissioner/OntarioCommissioner/Ontario

Robert Binstock, Registrar

Leslie McIntyre, Mediator

Irena Pascoe, Adjudicator

September 14, 2001

THE APPEAL PROCESS THE APPEAL PROCESS IN ACTIONIN ACTION

Information and Privacy Commissioner/Ontario

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TOPICSTOPICS

Welcome and IntroductionsIntakeMediationAdjudicationQuestionsWrap up


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IntakeIntake

Program AssistantIona D'Souza

Program AssistantM aria Fernandez

Program AssistantLucy MacLeod

Program AssistantHaydee Tellez

Program AssistantDollis Pegus

Assistant Registrar - Program SupportNorm a Thorney

Intake AnalystM aggie Nebout

Intake AnalystEnza Ragone

REGISTRARRob Binstock


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Intake - ScreeningIntake - Screening

Registrar and Intake Analysts have delegated authority to screen out files where:

(a) The matter, on its face, is not within the IPC’s jurisdiction; or

(b) The matter falls within the IPC’s jurisdiction, but the matter, on its face, is one that the IPC believes should not proceed through the appeal or privacy complaint process.


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Intake – StreamingIntake – Streaming

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


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Role of Intake AnalystRole 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


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Role of Program AssistantRole of Program Assistant

Intake - open files, request records and appeal fees.

Program support to Intake Analysts, Mediators and Adjudicators.


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Intake – Case ExampleIntake – Case Example

Request: All records concerning an Employment Standards claim against requester’s company.

Decision: Partial disclosure. Personal Information denied as compiled as part of investigation into possible violation of law. Copies of IPC orders included.


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Intake – Case ExampleIntake – 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.


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Intake - StatisticsIntake - Statistics

IN 2000 :20% (173) of all appeals closed (853) were

closed at IntakeFor appeals closed at Intake 78% were

withdrawn, 16% were screened out, and 6% were abandoned.


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MediationMediation

M ediators(7)

M anagerProvincial M ediation Team

Diane Frank

M ediators(5)

M anagerM unicipal M ediation Team

Giselle Basanta


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Mediation - StreamsMediation - Streams

An appeal that moves to the Mediation stage, is assigned to one of the following streams:

Regular Appeal;Straightforward Appeal; orReasonable Search Appeal.


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Mediation - RegularMediation - 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.


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Mediation – StraightforwardMediation – 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.


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Mediation – Reasonable Mediation – Reasonable SearchSearch

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.


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Role of MediatorRole 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.


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Methods of MediationMethods 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.


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Advantages of MediationAdvantages of Mediation

Each party can explain it’s 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.


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Mediation – Case ExampleMediation – 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 wasn’t hired. Mediator settled by arranging a meeting between

the appellant and the person who interviewed him.


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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.


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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.


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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.


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Mediation - StatisticsMediation - 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


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AdjudicationAdjudication

Adjudication ReviewOfficers

(2)

Adjudicators(6)

M anager of AdjudicationSenior Adjudicator

David Goodis

Assistant Com missionerTom M itchinson


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AdjudicationAdjudication

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.


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Overview of Inquiry ProcessOverview 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.


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Inquiry - Step 1 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.


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Second party (usually appellant) proceeds next.

Same or modified NOI, along with a copy of first party’s non-confidential reps.

Second party has three weeks to submit reps.

Adjudicator decides whether to invite reply reps, or issue an order.


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Adjudicator may send a modified NOI to the first party, along with a copy of the second party’s 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.


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Sharing of RepresentationsSharing 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.


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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).


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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 party’s request for confidentiality, he/she will provide advance notice of the decision to disclose the reps/portions of reps.


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Confidentiality CriteriaConfidentiality Criteria

Adjudicator may withhold information contained in a party’s 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


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Adjudication – Case ExampleAdjudication – 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 .


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Reconsideration of a DecisionReconsideration 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.


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Adjudication - StatisticsAdjudication - 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.


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Adjudication - StatisticsAdjudication - 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.


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IPC ResourcesIPC Resources

Code of Procedure

IPC Web site: www.ipc.on.ca

Thank YouThank You

Questions welcome.

Information And Privacy Commissioner/Ontario Robert Binstock, Registrar Leslie McIntyre, Mediator...

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