Exclusions and exemptions

The Ontario Freedom of Information and Protection of Privacy Act (FIPPA) provides that every person has a right of access to a record in the custody or under the control of the University. Furthermore, the University has the obligation to disclose as much of the record as can reasonably be severed without disclosing the information that falls under one of the exemptions.

Exclusions

FIPPA does not apply to certain records; these records are considered to be excluded from the scope of the Act. Below is a partial list of exclusions which are most frequently applied at the University:

Labour relations – section 65(6) and (7)

  • Proceedings or anticipated proceedings before a court, tribunal or other entity.
  • Negotiations or anticipated negotiations relating to labour relations or to the employment of a person.
  • Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.

However, the Act applies to:

  • Agreement with unions.
  • Agreements which end proceedings.
  • Agreements resulting from negotiations.
  • Employee submitted expense accounts.

Research and teaching materials – section 65(8.1), (9) and (10)

  • Records respecting or associated with research conducted or proposed by an employee of an educational institution or by a person associated with an educational institution.
  • Records of teaching materials collected, prepared or maintained by an employee of an educational institution or by a person associated with an educational institution for use at the educational institution.

However, the Act applies to:

  • Subject matter and funding received with respect to research.

Exemptions

There are two types of exemptions: mandatory and discretionary. In respect of mandatory exemptions, once the record or parts of the record is found to fall within the exemption, the exempt information cannot be disclosed. As for discretionary exemptions, even where the record falls within an exemption, the University has the discretion to decide to disclose the record.  Below is a partial of exemptions which are most frequently applied at the University: 

Advice or recommendations – section 13

  • Information where the disclosed would reveal advice or recommendations of a public servant, any other person employed in the service of an institution or a consultant retained by an institution.

Exceptions:

  • Factual material, statistical survey, valuator's report, environmental impact statement, test report, report on performance of an institution, feasibility study, field research report, final plan or proposal to change or establish a program, interdepartmental committee task force report, report of a body attached to an institution, reasons for a final decision, order or ruling of an officer or employee.

Law enforcement – section 14

  • Provides an exemption where disclosure could reasonably be expected to interfere with law enforcement and certain other activities.
  • Exempts certain types of law enforcement records.

Third party information – section 17(1)

Mandatory exemption

  • A record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information.
  • Supplied in confidence implicitly or explicitly.

Where the disclosure could reasonably be expected to:

  • prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations;
  • result in similar information no longer being supplied;
  • result in undue loss or gain to any person; or
  • reveal information supplied to or the report of a conciliation officer, mediator, labour relations officer or other person appointed to resolve a labour relations dispute.

Economic and other interests – section 18

  • Records that contain trade secrets or financial, commercial, scientific or technical information that belongs to the institution and has monetary or potential monetary value or where the disclosure could reasonably be expected to prejudice the economic interests or competitive position of the institution.
  • Records that contain positions, plans, procedures, criteria or instructions to be applied to any negotiations; plans relating to the management of personnel or the administration of the institutions that have not yet been put into operation or made public; proposed plans, policies or projects where the disclosure could reasonably be expected to result in premature disclosure or undue financial benefit or loss to a person.
  • Tests, testing procedures or techniques that are used for education purpose if disclosure could reasonably be expected to prejudice the use or results.

Closed meetings – section 18.1

  • Record that reveals the substance of deliberations of a meeting of the governing committee or a committee of the governing body of an educational institution if a statute authorizes holding the meeting in the absence of the public and the subject-matter of the meeting is a draft of a by-law, resolution or legislation; or is litigation or possible litigation.

Solicitor-client privileged – section 19

  • Record that is subject to solicitor-client privilege;
  • Record that was prepared by or for counsel employed or retained by an educational institution for use in giving legal advice or in contemplation of or for use in litigation.

Personal privacy – section 21

Mandatory exemption

Personal information must not be disclosed to anyone other than the individual to whom it relates except:

  • upon the prior written request or consent of the individual;
  • if the record is one to which the individual is entitled to have access;
  • in compelling circumstances affecting the health or safety of an individual;
  • personal information collected and maintained specifically for the purpose of creating a record available to the general public;
  • under an Act of Ontario or Canada that expressly authorizes the disclosure;
  • for research purposes as set out in the Act;
  • if the disclosure does not constitute an unjustified invasion of personal privacy.

Personal information – section 49

Access to one's own personal information may not be disclosed if:

  • A specific exemption applies.
  • Disclosure would be an unjustified invasion of another's privacy.
  • It would reveal a confidential source, such as:
    • the personal information is evaluative or opinion material;
    • the personal information was compiled solely for the purpose of determining suitability, eligibility or qualifications for employment or for the awarding of government contracts and other benefits;
    • the information was supplied to the institution in circumstances where it may reasonably have been assumed that the identity of the source would be held in confidence;
    • the disclosure of the record would reveal the identity of the source of the information.
    • Where the disclosure could reasonably be expected to prejudice the individual's mental or physical health.
    • It is a correctional record.
    • The information is a research or statistical record.

* Note: Consult FIPPA for a full list of the exclusions and exemptions.

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