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CITY OF SASKATOON

RESPONSE TO OFFICE OF THE INFORMATION AND PRIVACY COMMISSIONER REPORT LA-2010-002

The Saskatchewan Information and Privacy Commissioner has issued a report dated November 24, 2010 in response to a Request for Review filed by a person who disagreed with the City of Saskatoon’s refusal in 2004 and 2005 to release records regarding harassment investigations undertaken in 2002 and 2003 relating to an employee of the Saskatoon Police Service.

Section 45 of The Local Authority Freedom of Information and Protection of Privacy Act states as follows:

45 Within 30 days after receiving a report of the commissioner pursuant to subsection

44(1), a head shall:

(a)

make a decision to follow the recommendation of the commissioner or any other decision that the head considers appropriate; and

(b)

give written notice of the decision to the commissioner and the persons mentioned in clause 44(1)(b).

The duties of head have been delegated by City Council to the City Clerk. The purpose of this report is to respond to the report of the Commissioner and to outline the City Clerk’s decision, as head, respecting the Commissioner’s recommendations. This report will be submitted to the Commissioner and to the applicant, in accordance with Subsection 45 (b).

Janice Mann, City Clerk November 30, 2010

City of Saskatoon Files: 416-2004-10 and 416-2005-20 OIPC Files: 2005/034 and 2005/062

SUMMARY

1. The requested record was a personnel file belonging to the Saskatoon Police Service. A City of Saskatoon employee worked on the record as an agent of the Saskatoon Police Service and kept the file in a separate locked cabinet in her office.

2. The Saskatoon Police Service is exempt from the Local Authority Freedom of Information and Protection of Privacy Act (LAFOIP). Its files are exempt from the LA FOIP. This exemption results from a decision of the Saskatchewan Legislature, not The City of Saskatoon.

3. My position is that I have no jurisdiction to take possession of a Saskatoon Police Service file, even if it is located in City Hall. Therefore, I also cannot take possession of the file to pass it on to the Information and Privacy Commissioner.

4. The Information and Privacy Commissioner does not agree with my position. He believes I can take possession of any Saskatoon Police Service file and forward its contents to him, as long as the file is located in City Hall. He wants me to forward this record in spite of the fact that the Act very clearly exempts Saskatoon Police Service files from the jurisdiction of the Information and Privacy Commissioner.

5. The City of Saskatoon believes that the Information and Privacy Commissioner is wrong in law. He cannot reinterpret the legislation to give himself access to Police files which the Legislature has told him that he cannot have.

6. The Information and Privacy Commissioner cannot give himself or the City of Saskatoon jurisdiction over Saskatoon Police Service files. This can only be done by the Legislature or a Court. The proper procedure, in our view, was for the Information and Privacy Commissioner to either:

(a)

accept that neither he nor the City of Saskatoon had jurisdiction over the file; or

(b)

issue a subpoena for the record pursuant to Section 43 of the Act.

This would have put the matter before the court for a proper decision. We believe that this could and should have been done in 2007.

7. It is unfortunate that the Information and Privacy Commissioner has chosen in his report to characterize the Saskatoon Police Service asking for return of its file as “the City choosing to divest itself of the record by transferring it to the Saskatoon Police Service in the face of a review”. This ignores the fact that I had no jurisdiction over the police file, and that the Information and Privacy Commissioner had no authority to give her or himself such jurisdiction. The Information and Privacy Commissioner went so far as to write to me suggesting that I might be charged under the Act, when I was only doing my job within my jurisdiction.

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The City of Saskatoon believes that it is not proper for the Information and Privacy Commissioner to continually demand, as he has done in this case, that a City Clerk do something which she was advised and clearly stated to be illegal under the Act. All of this could have been avoided by the Information and Privacy Commissioner using s. 43 of the Act and recognizing that this was a proper issue for the Courts to decide. The City would be pleased to comply with a Court’s decision in this matter.

BACKGROUND

On August 27, 2004 a former employee of the Saskatoon Police Service made an Access to Information Request for the findings of two harassment investigations (one from 2002 and one from 2003), for which she was the complainant, undertaken by the Human Resources Department of the City of Saskatoon on behalf of the Saskatoon Police Service. The applicant was advised that the records belonged to the Saskatoon Police Service (SPS) and that The Local Authority Freedom of Information and Protection of Privacy Act (the Act) did not apply to the SPS, but that since the harassment investigations had been carried out in accordance with the City of Saskatoon’s policy on harassment investigations, a review would be undertaken. The applicant was cautioned, however, that even if the review found that the records should be released, the City Clerk had no authority over these records, and could only make a recommendation to the Chief of Police.

On September 13, 2004, the applicant was advised, in writing, that I had reviewed the matter and would not be recommending release of the record.

In late October 2005 the applicant filed another access request, asking for the findings from the 2002 harassment investigation. A letter similar to the September 13, 2004 letter was sent to the applicant on October 31, 2005.

REVIEW BY OIPC

On September 26, 2005 and October 31, 2005 the applicant requested the OIPC to review the City’s decision of September 13, 2004 and October 31, 2005 respectively. Since both decisions related to the refusal to issue records relating to the 2002 harassment investigation, the matter was considered as one application.

On November 3, 2005 I wrote to the OIPC as follows:

“(The applicant) requested copies of investigators’ reports for two ‘harassment investigations’ she had launched against employees of the Saskatoon Police Service. Although the Employee Services Branch of the City of Saskatoon administered the investigation process, this was done on behalf of the Saskatoon Police Service, not the City of Saskatoon. The Saskatoon Police Service has adopted the City’s ‘Respectful Workplace Policy’ and ‘Workplace Harassment Policy’ as its own. (This may be part of

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the confusion for (the applicant), and I will request the Saskatoon Police Service to ensure that any City policies they adopt as their own are re-formatted so as to be clear that they are Saskatoon Police Service policies.) All records relating to the investigations are records of the Saskatoon Police Service, and not the municipality.

As I indicated in my letter to (the applicant), the Act does not apply to the Saskatoon Police Service. I decided to undertake the investigation anyway, just to “test” the City’s policy, so to speak. However I did advise (the applicant), both verbally and in writing, that if I did find in her favour I could only make a recommendation to the Chief of Police, since the Saskatoon Police Service did not fall under the legislation. In reviewing the matter, I found that the City’s policy was appropriate, for the reasons indicated in my letter, and I therefore did not make a recommendation to the Chief of Police to release the report.”

Nothing was heard from OIPC until June 5, 2007, when I received the following email from a Portfolio Officer at the OIPC:

“I was reviewing my case load and notice that these files are being held up on a procedural issue. It will continue to be held up until I have time to research. However, I was hoping you could put the Record together so that we can move quickly when the procedural issue is resolved.”

I responded to that email on June 6, 2007, by email, as follows:

“This is an unusual file, and if I had to do it over again I would not have done any investigation at all. The records that the applicant requested are not the City’s records, but those of the Saskatoon Police Service. I should have told the applicant that, and cut the matter off right there. However because Human Resources staff of City Hall handled the matter for the Saskatoon Police Service in the same manner that they handled similar incidents for City Hall staff, I decided I would look into it, thinking that it wouldn’t hurt to look at our process. However I told the applicant right from the start that I had no jurisdiction in the matter, and the most I would ever be able to do would be to recommend to the Chief of Police that the records be released.

I never did look at the records. I discussed the process with the Manager of the branch that handled the investigation, and was satisfied that the records should not be released, for the reasons outlined in my letters to the applicant of September 13, 2004 and October 31, 2005.

You are asking me to put the records together, but I don’t have them because they aren’t the City’s records. I know that I would normally be compelled to provide you with the records in question, but I believe that this applies only to City records. My opinion is that I have no authority to demand that records that our Human Resources Branch are holding on behalf of the Saskatoon Police Service be provided to me and then onwards to the Information and Privacy Commissioner, and I am therefore not willing to do so.

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I hope that you are agreeable to finishing your review of the over-all issue of who the records belong to. If you do end up determining that the records do belong to the City, then we can cross that bridge at that time.

I do hope that this e-mail comes across in the spirit that it is intended -- not to be obstructionist or to try to get out of my statutory responsibilities, but as a way to address this complicated issue in the most efficient and effective manner. Please give me a call at 975-3240 if you would like to discuss this.”

I received the following email response that same day:

“Thanks for explaining your position so clearly. I take from this email that there are really two preliminary issues that I will have to deal with prior to moving forward (or not). I appreciate the clarification of your position. This seems to be a recurring issue that we will have to research and make a decision on. I will be in touch when I have had the opportunity to do a little more re search. Thank you for the input.”

This should have been the point where, if the Information and Privacy Commissioner did not accept my position that these were not City records, he issued a subpoena for the record pursuant to Section 43 of the Act, which would have put the matter before the court for a proper decision.

Nothing was heard from the OIPC until I received a nine page letter dated January 19, 2010 from another Portfolio Officer. This letter raised the following issues:

Custody or Control of the Record – Three pages of the letter were devoted to detailed analysis of the meaning of custody, possession and control. Because the records were physically located within City Hall, OIPC felt that they were in the possession of the City and thus would be considered to be City records and therefore would fall under the provision of the Act.

Section 7 Response – Section 7 requires that the head respond to an access request within 30 days, must identify the specific provision of the Act on which a refusal is based, and also must advise the applicant that the applicant may request a review by the OIPC within one year. The OIPC found that the City did not respond to the applicant’s initial request within 30 days; did not identify the specific provision that related to the decision that the record belonged to the SPS and not the City, while identifying one section [16(1)(b)] that deals with consultations involving employees and thus contradicts the argument that the request does not fall within the provisions of the Act; and did not advise of the opportunity to request a review.

Request to Forward the Records – I was asked to assemble and submit the records responsive to the request.

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I responded by letter dated January 29, 2010, as follows:

Thirty-Day Response Timeline – I stated that I received the request on August 27, 2004 and responded on September 13, within the thirty-day response period. I indicated that any attempts that the applicant may have made previously to obtain this information directly from staff in Human Resources was outside of this process, but that once she made the request to me I acted upon it within the legislated timeframe.

Section 16(1)(b) – I acknowledged that Section 16(1)(b) does not apply and that I had no explanation as to why I put the argument forward but agreed that it is not relevant.

Right of Appeal – I agreed that I should have advised the applicant of her right of appeal.

Request to Forward the Records – I responded as follows:

“I appreciate that the Commissioner has the authority, pursuant to Section 43(1) of LA FOIP, to require that the responsive records be produced for examination. However, the Commissioner has previously stated that there are circumstances where it is not necessary for the record to be produced. In Report F-2008-002 relating to whether certain records were under the control of the Ministry of Justice and Attorney General, the Commissioner stated under II [4] “While it is common practice in a review for me to be provided with a copy of the requested record from the government institution, this was not required in this case given the analysis that follows.”

This situation is identical to that referred to above. It is not necessary to examine the records to make a determination as to whether they are in the control or possession of the City. Moreover, I cannot produce the records for your examination because they are not the City’s records.

The Saskatoon Police Service is not a “local authority” under LA FOIP, and does not fall within any other access/privacy legislation. I don’t believe that there is any dispute about this.

The Employee Services Manager of the City’s Human Resources Department provides some services to the Saskatoon Police Service. There are similar instances such as in labour relations, where the City’s labour relations staff does work for the Saskatoon Police Service, and the Board of Police Commissioners, where the Deputy City Clerk acts as Secretary to the Board. Whenever these individuals are performing work for the Saskatoon Police Service or Board they report directly to the Police Chief or Board, as the case may be, and not to the City Manager. The City Manager has no control over them during the time that they are doing this work.

Just as the City Manager has no control over these individuals when they are working for the Saskatoon Police Service, the City’s records management program has no control over their records. They are kept in locked cabinets apart from civic records,

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and access is restricted to only those individuals who are directly involved. The City’s Records Retention Policy does not apply. If the Saskatoon Police Service chose to have those duties performed either in-house or by contracting an outside agency, the records would be removed from City Hall.

You suggest that my email of June 6, 2007, which states “My opinion is that I have no authority to demand that records that our Human Resources Branch are holding on behalf of the Saskatoon Police Service be provided …” establishes that the City is in possession of the records. I suggest that it establishes no such thing. It merely establishes that the records are physically located within the walls of City Hall, and nothing more than that. The records are under the control of the Saskatoon Police Service, and inasmuch as the Employee Services Manager is acting as an agent of the Saskatoon Police Service when performing these services, and in holding these records, they are also in the possession of the Saskatoon Police Service.

Our position remains that the records are not in the possession or under the control of the City of Saskatoon and thus the Act does not apply.”

On April 6, 2010 I received a response from the Portfolio Officer dated March 24, 2010, as follows:

Thirty Day Response Timeline – I was advised that a request for access to information is deemed to have been received when it is received by the local authority, not any employee I particular, and thus that the employee’s initial requests to the Human Resources staff involved and other managers should have been formally responded to, by me, within thirty days.

Submission of Record – I was told that the circumstances relating to the Ministry of Justice report that I had referred to in my letter were different, and that if I “cannot demonstrate to our satisfaction that you do not have physical possession of the record, the City will have to provide a copy to our office for examination.”

Possession or Control of the Record – I was advised as follows:

“It is our understanding that it is the City’s contention that the record in question is not in the City’s possession because there are agreements with the Saskatoon Police Service that oversee the sharing of staff and storing of documents and thereby has control of the record. If this is the case, please provide us with further details and material that supports your assertion. If this is not the case, please provide clarification on the City’s position with respect to possession and control.

Further details and material to show that the Saskatoon Police Service has control of the record would include written agreements or memorandums of understandings between the City and the Saskatoon Police Service regarding the storage of records. Also, please provide in more detail in relation to the storage of the record such as

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where the record is located, what other documents are stored with the record and who specifically in the Saskatoon Police Service holds the keys to this cabinet. In terms of contractual arrangements, we draw your attention to our publication, A Contractor’s

Guide to Access and Privacy in Saskatchewan. of reference.

I have enclosed a copy for your ease

We look forward to hearing from you in this regard.”

At this point I realized that the OIPC did not believe what I was telling them about the records belonging to the SPS and not to the City. Not only did they not believe me, they didn’t understand what I had been telling them, since the brochure they sent me, A Contractor’s Guide to Access and Privacy in Saskatchewan, was not relevant. Since they wanted proof of this

relationship, I thought I would ask the Chief of Police to provide a letter or affidavit confirming

that the records in question are SPS records and not the City.

Solicitor for the SPS, with a copy to the Chief of Police, giving background to the matter. I did not state the name of the applicant, although I did state the name of the complainant in the harassment investigation so that they were aware of what files I was talking about. I quoted the OIPC letter of March 24 which talked about providing further proof, and said: “Unfortunately there are no written agreements or memorandums of understanding regarding the above. Since my word is not sufficient for the Commissioner, I would like to provide a letter or perhaps even an affidavit from the Saskatoon Police Service confirming that the records in question are Saskatoon Police Service records and not City records.”

On April 9, 2010 I wrote to the

On April 20, 2010 I received the following letter dated April 19 from the Solicitor for the SPS:

“Please be advised that I am a lawyer with the Saskatoon Police Service. This acknowledges receipt of your letter dated April 9 th wherein you summarize an Access to Information Request by (the applicant) for the …(findings of the two harassment investigations )…”

I can confirm that the two above referenced harassment investigations involved allegations surrounding (the complainant’s) treatment in her workplace, being the Saskatoon Police Service building, by employees of the Saskatoon Police Service. As such the Saskatoon Police Service considers these investigations, and the resulting findings, to be the property of the Saskatoon Police Service. I understand, and appreciate, the fact that your offices arranged for archival storage of these matters in view of potential perceived conflicts of interest that may have arisen should the Saskatoon Police Service have continued to store these same records. As you are aware, any such potential perceived conflict of interest would have arisen as a result of (the complainant’s) civil action against employees (both sworn and civilian) of the Saskatoon Police Service.

The Saskatoon Police Service no longer requires that you maintain archival storage of the 2002 and 2003 Harassment Complaint investigation findings and related materials. Would you therefore kindly return those to us in their entirety at your very earliest convenience?

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Thank you kindly for your professional cooperation and assistance. Please do not hesitate to contact the writer should you have any questions or concerns.”

I was surprised to get this request, because all I had asked for was something in writing to confirm the relationship. I also had never considered that the records had been stored with the City for archival purposes – only that they belonged to the SPS. But because the records belong to the SPS I immediately contacted the Human Resources Department to inform them of the request of the SPS. The files were then returned to SPS.

On May 6, 2010 I sent the following letter to the OIPC:

Thirty Day Response Timeframe

In your initial letter to me on January 19, 2010, you advised that the employee had approached the General Manager of Corporate Services (the manager in charge of the Human Resources Department at that time) on June 30, 2004 but that she did not receive a formal response until September 13, 2004. I responded in my letter of January 29 that the employee filed a formal request with me on August 27, 2004, so that my response to her was well within the prescribed timeframe. I indicated that I did not have any copies of the emails to which you referred, but that they were obviously (the applicant’s) first attempts to obtain the document through normal Human Resources channels, and that it is only once a formal application is made to me, as head, that the timeframe provisions are applicable.

You did not accept my argument, and drew my attention to subsection 6(2) of the Act which states that an application is deemed to be made when the application is received by the local authority to which it is directed. I do not accept your view that the prescribed 30 days begin on the day that the initial overture, in whatever format (eg telephone call, email, etc.) is made to any of the more than 2,000 employees of the City. I would draw your attention to subsection 6(1)(a) which states that an applicant shall make the application in the prescribed form to the local authority in which the record containing the information is kept. The application in the prescribed form was submitted on August 27, 2004.

Possession or Control of the Record

I have received the attached letter dated April 19, 2010 from the Solicitor for the Saskatoon Police Service, requesting that the Human Resources Department return the Harassment Complaint Investigation findings and related materials since they are the property of the Saskatoon Police Service. We have done so and thus do not have physical possession of the record and are unable to provide a copy to your office for examination.”

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On May 20, 2010 I received the following letter dated May 12, 2010 from the Director of Compliance, OIPC:

“I acknowledge receipt of your letter dated May 6, 2010 and received in this office May 10, 2010.

You responded to the Applicant by your letter dated October 31, 2005 and invoked an exemption in LA FOIP, namely section 16 (1)(b) of LA FOIP. You have submitted arguments in support of your decision to deny access. Arguably at that same time the City had the record in question in its possession.

Only after you received our office’s detailed letter dated March 24, 2010 in which we provided comments with respect to your submission and indicated that our office may take a different view of the matter did you apparently advise the Saskatoon Police Service of this matter and apparently solicited a formal request from the Police Service for transfer of the responsive record to the Police Service.

We are very concerned with your actions in:

Advising the Saskatoon Police Service, a third party, by a letter dated April 9, 2010 of the access request and disclosing personal information of the Applicant without her consent;

Choosing to alienate the records by transferring them to the Saskatoon Police Service, an organization that is not a local authority for purposes of LA FOIP in the face of a review that was commenced on October 5, 2005;

Now claiming that the records are no longer in your possession;

You have denied our office the opportunity to review the records in question and determine in our independent judgement whether they are or are not subject to LA FOIP.

To put it as neutrally as we can, it appears that you may have taken steps to “wilfully obstruct, hinder or resist the commissioner or any other person in the exercise of the powers, performance of the duties or the carrying out of the functions of the commissioner or other person pursuant to this Act.” This is an offence under section 56(3)(a) of LA FOIP.

We require that, for purposes of our review, you obtain all of those documents that are referred to in the letter dated April 19, 2010 to you from Greg N. Bains and forthwith provide those records with the appropriate Index of Records to this office on or before May 28, 2010.

This shall be notice that we will require an Affidavit sworn by you exhibiting the communications with the Police Service and which details all of your actions with respect to the records from the date that you received the access request from the Applicant dated September 13, 2004 until the date you transferred those records to the Saskatoon Police Service. We require this Affidavit on or before May 28, 2010. If you do not wish to

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provide such an Affidavit please advise immediately so that we can arrange a court reporter in order that the Commissioner can examine you under oath as to the circumstances of your disposition of the records.

Given the seriousness of your actions and what may well be the commission of an offence under LA FOIP we are copying the head of your local authority with this letter.

cc:

His Worship, Donald J. Atchison, Mayor of Saskatoon”

The matter was immediately handed over to the City Solicitor, who provided a seventeen-page formal response to the OIPC on June 29, 2010 as well as Affidavits from the City Clerk, and the former Manager of the Employee Services Branch, who originally handled the harassment investigation file. The City Solicitor asked that the Commissioner either discontinue his review of the matter or provide his report and recommendations to the City Clerk.

On August 11 a seven-page letter dated August 4, 2010 was received from the OIPC Director of Compliance, forwarding a fifty-eight-page analysis prepared by the Portfolio Officer. The letter included the following:

Head of City of Saskatoon. We were requested to provide proof that the duties and power of Head had indeed been delegated to the City Clerk.

Thirty Day Response Timeline. The requirement for measures to be in place to deal with

FOI requests expeditiously and within 30 days was repeated.

application does not have to be ON the prescribed form, but merely IN the prescribed

form. No reference was made to how informal requests to various employees could be considered to be in the prescribed form.

It was stated that the

On September 3, 2010 the City Solicitor responded to the OIPC Director of Compliance, advising that the City does not agree with the analysis, and referring her to the City’s correspondence of June 29, 2010.

On November 25 the Commissioner’s sixty-four-page report of November 24 was received. The covering letter indicated that the report would be posted on the OIPC website on or after December 1, 2010.

COMMISSIONER’S REPORT

My response to the statements and recommendations contained in the Commissioner’s report are

included below.

However there are several aspects of the report itself which warrant comment.

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Obstruction

I personally take particular exception with the impression that is left that I deliberately transferred the record when it was under review in spite of the fact that I gave affidavit evidence to the contrary. My understanding of the law is that if the Commissioner thought he had any evidence he should have proceeded with charges, and in the absence of that he should not be making any allegations in his report.

Tone of Report – The report contains the same tone thatt is taken in correspondence received from the Commissioner. Examples are noted in italics below:

Pg 24 – “… but there apparently was a form of unwritten arrangement

Pg 29 – “The City has failed to substantiate the claims and conclusions in the two affidavits.”

Pg 42 – “There is significant uncertainty as to the terms of the alleged verbal contract.”

Pg 42 – “What I have is a series of assertions by the City about who had or did not have control of the record but very little in terms of detail about the alleged unwritten contract.”

Pg 58 – “Choosing to divest itself of the record by transferring it to the Saskatoon Police Service in the face of a review

This choice of words is offensive and is an affront to my professionalism and integrity. In my opinion it is inappropriate for an oversight body to treat a local authority in that manner, and it is certainly not the way that other oversight bodies, such as the Human Rights Commission, write their reports.

Thirty Day Response Timeline – The report is silent on this aspect of the review. I can only conclude that the Commissioner ultimately agreed with my interpretation of the Act but decided not to acknowledge it in his report.

RESPONSE TO COMMISSIONER’S STATEMENTS

[181]

That the City’s section 7 responses dated September 13, 2004 and October 31, 2005 to the Applicant were not compliant as they did not appropriately identify the City’s basis for refusal and advise of the Applicant’s right to a review.

I agree with the Commissioner’s statement. Although I explained the basis for refusal, I did not refer to the appropriate section in the Act. I also did not advise the applicant of her right to appeal to the OIPC, since the Act does not apply to police records and I did not realize that the OIPC had the power to review requests that were outside of the jurisdiction of the Act.

[182]

That for the purposes of section 5 of LA FOIP the City had possession of the record when the Applicant made her access requests for the records.

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I do not agree with this statement. While the records were physically located within City Hall, they were not in possession of the City for all of the reasons I have previously on several occasions provided to the OIPC. The records are SPS records which are exempt from LA FOIP.

[183]

That the record has not been archived for the purposes of section 3(1)(c) of LA FOIP.

This is not relevant as the record is a SPS record which is exempt from LA FOIP.

[184]

That the City transferred the record in the face of a review by OIPC to a body that is not a local authority for purposes of LA FOIP.

This statement is wrong. I advised the City department that was acting as agent of the SPS of their request for the return of the records and advised that they should be returned. I initially contacted the SPS only because OIPC wanted further proof of the relationship between SPS and the City. This is in no way the same as “transferring the record in the face of a review by OIPC to a body that is not a local authority”.

Furthermore, I had already advised the OIPC, in my letter of January 29, 2010, quoted above, that “if the Saskatoon Police Service chose to have those duties performed either in-house or by contracting an outside agency, the records would be removed from City Hall.”

[185]

The City has given no indication that it has made efforts to retrieve the record from SPS as this office has requested.

This statement is correct. The records belong to SPS and are outside the jurisdiction of LA FOIP.

[186]

The City revealed the identity of the Applicant to SPS when it may not have been required.

This statement is incorrect. I did not reveal the identity of the applicant to the SPS. The complainant was and is well known within certain work areas of the SPS and the City, due to her ongoing actions in dealing with workplace issues from 2002 and 2003. It is not much of a leap to assume that the person who applied for the findings of this particular harassment investigation is the complainant.

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DECISION OF HEAD RELATING TO COMMISSIONER’S RECOMMENDATIONS

Recommendation of Commissioner:

[187]

That the City immediately retrieve the record from SPS and provide a copy to our office or alternatively, provides us with a true electronic version of the record.

Head’s Decision:

These are Saskatoon Police records which are outside LA FOIP. Neither I nor the Commissioner have jurisdiction to “retrieve” the record.

For many years the Saskatoon Board of Police Commissioners, which is the legislated body in charge of the Saskatoon Police Service, has taken advantage of various expertise in City staff in areas such as labour relations, human resource management, payroll and administrative support to the Board of Police Commissioners. This has been seen as an efficient and effective use of resources.

As I advised the Commissioner in my letter of January29, 2010, whenever these individuals are performing work for the Saskatoon Police Service they report directly to the Saskatoon Police Service and not to the City Manager. The City Manager has no control over them during the time that they are doing this work, and the City’s records management control program has no control over their records.

Here is an example that illustrates why it is so important that the principal of the ownership of the files is maintained. The Deputy City Clerk, who is an employee in the City Clerk’s Office, has several responsibilities, one of which is to act as Secretary to the Board of Police Commissioners. All records relating to the Board of Police Commissioners are kept in a locked file cabinet in her office. Only the Deputy City Clerk and her secretary have access to that file cabinet.

The effect of what the OIPC is saying in this report is that if I were to receive an FOI request for in camera minutes of the Board of Police Commissioners I couldn’t just respond that the Board of Police Commissioners is not covered under the Act. I would have to advise the applicant that they have the right to request a review by OIPC, and upon such review I would be required to obtain possession of those minutes and forward them to the Commissioner so that he could look at them in order to make sure that they aren’t records of the City. Surely this is not what the Legislature intended.

The OIPC has indicated on several occasions that it must look at the record in order to make the determination as to whether the record is a City record or a Police record, but has not given any reason as to how seeing a harassment investigation report advances that determination. I disagree that this record is required in order to make the determination.

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Recommendation of Commissioner:

[188]

That, within 30 days, the City provide a new, compliant section 7 response to the Applicant regarding this record. The response should reflect that the City has possession of the record for purposes of LA FOIP.

Head’s Decision:

This is a police record. It is not a City record. The City does not and never had “possession”. It cannot have “possession” under LA FOIP of a record which is exempt from LA FOIP.

Recommendation of Commissioner:

[189]

That the City follows the “Privacy Breach Guidelines” in responding to the apparent privacy breach in disclosing the personal information of the Applicant to the SPS.

Head’s Decision:

There was no privacy breach.

ISSUES REGARDING PROCESS

Delay in Responding

This file emphasizes the problems of delay. It should not take five years to obtain a report of the Information and Privacy Commissioner. This file is also an excellent example of how, in the City’s opinion, the problem is not necessarily one of staffing, but rather of how the files are handled by the OIPC. The Information and Privacy Commissioner was fully aware in 2007, if not earlier, that the issue was jurisdiction over Saskatoon Police Service files. In our opinion at that point he should have sought legal advice as to whether and how to bring the matter to the courts, as only the courts could resolve the issue. If that had been done, this matter would long since be over, and have reached a final, proper, resolution.

Saskatoon City Council has previously adopted the following motion, which bears repeating.

“that City Council write to the Saskatchewan Information and Privacy Commissioner, with a copy to the Minister of Justice, reiterating its concern at the length of time between requests for review and reports, and encouraging the Information and Privacy Commissioner to look for solutions, including potentially a more efficient process for reviews.”

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Posting of Reports

The report of the Commissioner was received on Thursday, November 25, 2010, with advice that it would be made public on or after December 1. This gave three working days to review the report and prepare a response prior to it being made public. This is unacceptable as it does not provide sufficient time for the City to review and respond to the full ramifications or implications of the Commissioner’s report.

The public needs to be able to hear from the Commissioner and the local authority at the same time so that it can hear the whole story and make its own judgments. The local authority deserves more than three days notice prior to publishing a 64-page report which has been five years in the making.

Saskatoon City Council has previously put forward the following recommendation to the Minister of Justice to address the above issues.

“that the Province be requested to amend The Local Authority Freedom of Information and Protection of Privacy Act as follows:

a) that there be a time limit for the Information and Privacy Commissioner to respond to privacy complaints; and

b) that reports and recommendations not be publicized or posted publicly until after a response has been received from the local authority or until the statutory period for response from the local authority has expired, and that any response submitted be posted with the report.”

Dated at Saskatoon, Saskatchewan, this 30 th day of November, 2010.

Janice Mann, City Clerk

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