2. Records That Do Not Exist

• Requesters have no right, subject to the regulation dealing with machine-readable records, to require an institution to create a record in response to a request. Requests are for information contained in a record existing at the time the request is made. (Orders #P-99, P-562, P-931)

• Where requests are made in the French language, under the French Language Services Act, a ministry is required to respond in French under the Act. However, the ministry is not required to translate any responsive records. This would result in the institution having to create a record in circumstances in which it is not obliged to do so. (Orders #P-562)

3. Records Governed by Federal Legislation

A. Wiretap

• Requests for wiretap application records are outside of the scope of Ontario's access and privacy legislation. This is because the Criminal Code deals with access to records of this nature and as a result a provincial statute cannot, given the doctrine of federal legislative paramountcy, apply. This is so whether the wiretap record exists or not. (Orders #P-344, P-368, P-378, M-202, P-625)

B. Young Offenders Act Records

• The records provisions of the Young Offenders Act (YOA) are expressly contradicted by the Freedom of Information and Protection of Privacy Act (FIPPA). This contradiction applies not only to requests for YOA records (and Juvenile Delinquents Act records, which are included in the records scheme of the YOA) but also to the ability of the Commission to obtain these records during an appeal. In essence, the YOA contains a comprehensive records scheme that deals with disclosure of these records in restricted circumstances. Given the doctrine of federal legislative paramountcy, the YOA provisions prevail over FIPPA and YOA records fall outside the scope of FIPPA. In order for the Commission to determine whether a record is in fact a YOA record, an institution must forward an affidavit to the Commission during an appeal. The affidavit must contain the following information: (1) it must contain information about the person swearing the affidavit describing his or her qualifications and responsibilities; (2) it must state that the person is familiar with the withheld records and the subject matter of the records; (3) it must describe the records withheld in reasonably specific detail (without revealing the content of the record), correlate each record to the provisions of the YOA asserted and demonstrate how the required elements of each provision are satisfied (e.g., how the records relate to an offence under the YOA and how disclosure would serve to identify the persons as having been dealt with under the Act); (4) it must set out the purpose for which each record was created and the circumstances under which each record was created. (Orders #P-378, P-446, P-736, P-737)

• In accordance with the doctrine of federal legislative paramountcy, the Young Offenders Act (YOA) prevails in respect of records kept by a provincial institution under section 43 of the YOA. Nevertheless, in respect of YOA records, the Commission has a duty to ensure that the records are not improperly withheld from scrutiny under FIPPA on the basis that they are "YOA records." In this case, the record concerned a workplace harassment complaint about the conduct of certain employees of the institution in relation to other employees. The workplace in this case was a young offender facility. The investigation that led to the creation of the record was not conducted for the purpose of investigating an offence alleged to have been committed by a young person; for use in proceedings against a young person; or for any other type of activity outlined in sections 40, 42, 43 or the YOA. Even if the record in question was found to be a record within the meaning of the YOA, the Commission would not be in conflict with a federal statute in dealing with disclosure of these records. The severed record, which was ordered disclosed, did not contravene section 46 of the YOA in that it did not identify a young person as an individual who was dealt with under the YOA. (Order #P-446)

• The Divisional Court quashed Order P-804 dealing with the IPC's access to 'young offender' records in an appeal. The majority of the Court held that the records may not be provided to the IPC in an appeal so that the IPC could determine whether or not the records were in fact 'young offender' records. The Court found that if an institution provided young offender records to the IPC in an appeal it would be committing an offence under s.38.1 of the Young Offenders Act. That section deals with non-publication of information that would identify a young person as having been dealt with under the Act. Moreover, the Court found that the province could authorize the IPC to obtain the records if it wished to do so under s.44.1(1)(h) of the Young Offenders Act. Given that the province has chosen not to do so, the Court believed it was inappropriate for it to do so. This case deals with records that were clearly 'young offender' records--thus the question of what to do with records that are more ambiguous is left undecided. The decision has been appealed to the Court of Appeal. (In the Matter of the Young Offenders Act, the Freedom of Information and Protection of Privacy Act and Order P-804 of John Higgins, Inquiry Officer, dated November 29, 1994, June 19, 1996, Ont.Div.Ct., Court File No. 829/94)

• The non-disclosure provisions in s.38(1) and s.46(1) of the Young Offender's Act do not apply to someone who is deceased. In this case, the Young Offender's Act did not apply to records of an investigation into the unreported disappearance from a group home of a crown ward who was deceased at the time of the access request. (Order #P-991)

C. Interprovincial Undertakings

• While the Act applies to an interprovincial undertaking such as Ottawa-Carleton Regional Transit Commission (OC Transpo), it does not apply to certain records where the disclosure would clearly affect the working conditions, labour relations or a vital part of the management and operation of the institution. Records regarding a grievance proceeding relate to labour relations. Disclosure of the grievance file would impact on grievance procedures and would clearly affect labour relations. As a result grievance records, in respect of OC Transpo, are not covered by the Act. (Orders #M-159, M-160. Summary of M-160 is below under "Right of Access.")

4. Correspondence With the Information and Privacy Commission

• Where an institution receives a request for access to a number of Freedom of Information appeal files that the institution had previously opened to respond to earlier access requests made by the same requester, access may be denied based on the fact that there is no right of access under this section. The records were generated during the mediation stage of the appeals process and included correspondence between the institution and the Commissioner's office. The process envisaged by the Act was not intended to be used to allow a requester to obtain access to this information; the process should not result in the same information having to be considered in two separate appeals. The reasons for the Commissioner's decision are as follows: the Commissioner's office has the right to control its own process; the records may contain the same information that was the subject of the original appeal that was not disclosed; and, to grant access to these records would encourage duplicate appeal proceedings and militate against finality in the appeals process. The Act would apply, however, to records that were generated internally by the institution in dealing with an appeal. (Order #P-537)

• Correspondence between the Commissioner's office and an institution exchanged following the inquiry stage and which related directly to the disposition of an appeal is not privileged under s.52(9) [FIPPA] \ s.41(9) [MFIPPA]. Such correspondence is nevertheless outside of the purview of the Act (see s.10 [FIPPA] \ s.4 [MFIPPA], Order #P-537). However, correspondence between an institution and the Commissioner's office, which are of a purely administrative nature and do not pertain directly to the substance of an appeal, are not privileged under this section and are within the purview of the legislation. Since no other exemptions under the Act applied to the record, it was ordered disclosed. (Order #P-592)

Records not responsive to request

• Where an individual requested all records held by a Police Service regarding a charge laid against the individual, all the records which related directly or indirectly to the individual or his or her matter were responsive to the request. Pages in a police officer's note book relating to other arrests or investigations were not responsive to the request. (Order M-514)

• A portion of a computer generated page of information on a computer screen containing computer codes within a specific module in the police records system was not responsive to the request even though another portion of the page concerning a legal process involving the requester was responsive to the request. (Order #M-517)

Right of Access

1. Interprovincial Undertakings

• Records created by a federal Crown Corporation that are in the custody or under the control of a provincial or municipal institution are governed by FIPPA\MFIPPA, where the disclosure would not paralyse the Crown Corporation and where the disclosure would not conflict with federal law. Both the federal and provincial access and privacy statutes contemplate that from time to time either or both may have the records of the other. (Orders #P-270, P-241. In Tim Grant v. Atomic Energy of Canada Ltd. and the Attorney General of Canada, the Federal Court of Canada, Trial Division, ruled that, given s.37 of the Canada Evidence Act, the information ordered disclosed in Order #P-270 would be injurious to the public interest in national security. Thus the evidence was not admissible in a judicial proceeding and therefore in the judicial review that was pending. [Court File DES-2-93, August 8, 1994, D.McGillis J.])

• A transit commission, the Ottawa-Carleton Regional Transit Commission (OC Transpo), which is governed by federal labour laws, is nonetheless an institution covered by MFIPPA. The federal aspect of the institution is that it provides interprovincial service. As a result it is governed by federal labour laws. The MFIPPA is a law of general application that will apply to OC Transpo where the records do not apply to working conditions or labour relations and where disclosure of the records would not affect a vital part of the management or operation of OC Transpo. (Orders #M-13, M-159, M-160, M-699)

• Section 350 of the federal Railway Act provides for the confidentiality of certain information given to the National Transportation Agency. The Commission ruled that the provision has no application to records supplied to institutions governed by Ontario's access and privacy legislation. It was noted that some of this information may have inherent economic value. (Order #P-647)

2. Records Governed by Federal Legislation

A. Young Offenders Act

• Where a record concerns an internal investigation into the operation of a training school and the conduct of its employees, it is not a Young Offenders Act record. The record does not relate to an offence that may have been committed by a young person, nor was it created for the purpose of investigating an offence alleged to have been committed by a young person. (Re Solicitor General of Ontario et al. and Assistant Information and Privacy Commissioner et al., (1993), 102 D.L.R. 602 (Ont. Div.Ct.))(Order #P-352)

3.Records responsive to request

• When an institution creates a record in response to a request, then factual information that places the requested information in context e.g. a disclaimer notice regarding property assessment values is also responsive to the request. (Order #P-954)

• While cover pages and dates of funding proposals were found to be not responsive to a prior request, the wording of the new request which is for all information related to the funding of the project and the character of the documents make them relevant in this case. (Order #P-970)

4. General

• Where a third party that has been given notice under this section provides representations to an institution, access requests for that material are to be treated as general requests which are governed by the exemptions in the Act [FIPPA \ MFIPPA]. While s.52(13) [FIPPA] \ s.41(13) [MFIPPA] states that parties are not entitled to access to another party's representations at the appeal stage, there is no equivalent provision in respect of access to such representations at the request stage. (Order #P-78)

• The Psychiatric Patient's Advocacy Office was part of the Ministry of Health and thus its records were covered by the Act. While the office had entered into a Memorandum of Understanding with the ministry, it did not provide that the ministry had abdicated responsibility for the Office. The Commission held that the office was fundamentally part of the ministry and was an internal program of the ministry. (Order #P-494)

• Records of the Judicial Appointments Advisory Committee were covered by the Act. The Commission ruled that the Committee was a part of the Ministry of the Attorney General for a number of reasons including that the mandate of the Committee was related to the functions of the ministry, the ministry funds the operations of the Committee and provides administrative support and the Committee's offices are located on the premises of the ministry. (Order #P-704)

• Providing access to information under the Municipal Freedom of Information and Protection of Privacy Act does not constitute an infringement of copyright. Specifically, sections 27(2)(I) and (j) of the Copyright Act provide that disclosure of information pursuant to the federal Access to Information Act or any like Act of the legislature of a province does not constitute an infringement of copyright. (Orders #M-29, M-542)

• Where a request is received for general information which may be located in a portion of a record(s) (as opposed to a request for specific records) an institution is obligated to respond only to the portion of the record which is responsive to the information requested rather than the entire record. Institutions should also consider whether the information at issue is meaningful if it is only a portion of a larger document. (Orders #P-880, P-970, P-971, P-1026)

• A work stoppage that created difficulties for staff in entering picketed work locations was not sufficient to relieve the institution of its responsibility to process an access request and meet the statutory time periods.(Order #M-1138)

• Circumstances or context affecting access decision to records may change over time. A requester is entitled to fresh consideration of access in any new request where change affecting the records has occurred. (Order #P-1619)

• It is not possible for an institution to remove records otherwise in its lawful custody from the purview of the Act by simply maintaining that they relate to personal or partisan activity. (Order # PO-1725)

5. Patients' Right of Access to His or Her Medical Records

• In the absence of legislation, a patient is entitled, on request, to examine and copy all information in his or her medical records which the physician considered in administering advice or treatment, including records prepared by other doctors that the physician may have received. The patient's general right of access to medical records is not absolute. If the physician reasonably believes it is not in the patient's best interests to inspect the medical records, access may be denied. Denial of access should be made in exceptional circumstances where there is significant likelihood of a substantial adverse effect on the patient's physical, mental or emotional health or harm to a third party. (McInerney v. MacDonald (1992), 93 D.L.R. (4th) 415 (S.C.C). This case is included here for the assistance of readers even though the freedom of information and privacy legislation do not apply to the private sector.)

ss.(1)--Custody or Control

Factors to be Considered

• Some of the factors that may be considered in determining custody or control are: 1. was the record created by an officer or employee of the institution? 2. what use was intended to be made of the record? 3. did the institution have possession of the record? 4. if the institution did not have possession, was it created as a result of the duties of an employee and is it being held by the employee? 5. does the institution have the right to possess the record? 6. does the content of the record relate to the institution's mandate and function? 7. does the institution have the authority to regulate the record's use? 8. to what extent has the record been relied upon by the institution? 9. how closely is the record integrated with other records held by the institution? 10. does the institution have the authority to dispose of the record? The term "custody" should be given broad meaning and only in rare circumstances would physical possession not suffice as custody. In Order #P-120 notes made by an employee while she was a panellist in a job competition were found to be in the control of the institution even though she had taken the notes home. (Orders #P-120, P-257, P-267, P-271, P-326, M-165, P-505, M-315, P-704, M-387, P-794, M-430, P-822, M-506, P-994, P-1151, M-875)

• Bare possession is not sufficient to base a finding that the record is in the "custody" of the institution; there must be some right to deal with the records and some responsibility for their care and protection. (Orders #P-239, P-271)

• Records of political staff that relate to political matters may be in the custody or control of an institution where the records are kept, maintained or stored together with other government records. (Order #P-267)

• It is not possible for an institution to remove records otherwise in its lawful custody from the purview of the Act by maintaining that they relate to personal or partisan activity. (Order# PO-1725)

• While this section does not state at what point in time the institution has custody or control over the records subject to a request, the intent of the Act is clear that the relevant date is the date upon which the request was received by the institution. The institution cannot divest itself of custody or control of records in the midst of an appeal. (Order #M-430)

• Where an employee of the Premier's Office keeps records relating to personal or partisan matter in a government database, organized in essentially the same manner as entries relating to his official duties, it was found that these records were properly within the custody of the Premier's Office. It is not possible for an institution to remove records otherwise in its lawful custody from the purview of the Act by simply maintaining that they relate to personal or partisan activity (Order # PO-1725)

Factors to be Considered for Control

• Some factors that may be considered in determining control are:

1. Does the Institution have a statutory power/duty to carry out activity resulting in creation of records? 2.Is the activity a "core", "central" or "basic" function of the institution? 3. Are there any provisions in contracts between the institution and third party giving the institution the right to possess or control the records? 4.Was there an understanding by the institution and third party that the record was not to be disclosed to the institution? 5.Who paid for the creation of the record? 6.Was the third party an agent of the institution? Did that agency include a right for the institution to possess or otherwise control the records? 7.What is the customary practice of the institution and similar institutions in relation to possession or control of records of this nature in similar circumstances? 8.What is the customary practice of the third party and others in a similar trade in relation to possession or control of records of this nature in similar circumstances? 9.To what extent did the institution rely or intend to rely on the record? 10.Who owns the record? (Orders # MO-1237, MO-1242)

Records that are in the Custody or Under the Control of the Institution

• Order P-704 dealing with the custody and control of records prepared by the Judicial Appointments Advisory Committee was confirmed. The IPC held that judicial appointments committee records were in the custody or under the control of the Ministry of the Attorney General despite the fact that it was an ad hoc committee that was administratively independent of the Attorney General. The Divisional Court found that while the Committee did operate independently, it was in essence an agent of the Attorney General in assisting it to perform a statutory function under s.42 of the Courts of Justice Act (ie: requiring the AG to appoint provincial judges). The fact that the Committee was independent of political or other interference did not mean that it was not functioning as an agent of the AG. The implication of the decision is that the FIPPA applies to all the workings and records of the Judicial Appointments Committee; it may also extend to other entities like it that perform an agency function to government. In addition, the record in question was in the custody of an individual member of the Committee. The Court also found that the location of the record was not relevant to the issue of custody or control and consequently held that the FIPPA could extend to records kept other than on the premises of an institution. (AG v. Irwin Glassberg et al, March 25, 1996, Ont.Div.Ct.)

• Only one part of the test needs to be met; that is, custody or control. Even where the institution maintains copies of a record produced in whole or in part by another organization, such records are in the custody of the institution. Where the contract between the institution and third party states that the reports belong to the institution, control lies with the institution. (Orders #P-41, P-257, P-1105)

• Notes and diary entries about properties being inspected related to the employment responsibilities of the Fire Prevention Officers, who created the records and were therefore in the custody or control of the institution. This was so even though the notes were voluntarily created and were not kept with the regular institutional files. (Order #M-59)

• Records are in the custody and control of an institution and governed by the Act even though they were obtained from the requester and regardless of whether copies of the records were previously provided to the requester. (Order #P-332)

• A report submitted to an institution by a third party is in the "custody or control" of an institution. (Order #P-3)

• Day Nursery Health Inspection Reports were in the custody of the Ministry of Community and Social Services where the institution was required to receive them under the Day Nurseries Act. (Order #P-257)

• In this case, the appellant's medical record was sent to the police by a hospital in which the appellant was a patient. The appellant had consented to the disclosure. The record was kept in the police files and was therefore in the custody or control of the police even though they did not request that the document be sent to them. (Order #M-128)

• Simply providing records to the Commission's office in an appeal does not, in and of itself, prejudice the position of an institution that it does not have custody and\or control of those records. The Psychiatric Patient Advocate Office (PPAO) is part of the Ministry of Health and, as such, its records are in the custody or control of the ministry. This was so even though the PPAO and the ministry had entered into a Memorandum of Understanding that provided that the PPAO is responsible for maintaining confidential records relating to its advocacy operations. The Memorandum did not mean that the PPAO had exclusive custody or control over records which it had a responsibility to maintain to the exclusion of the ministry. (Orders #P-494, P-509)

• Records related to a tender for the development of non-profit housing held by the Ministry of Housing were in the custody or under the control of the ministry. (Order #P-610)

• The Commission ruled that the Ministry of Consumer and Corporate Relations had "control" over examination papers taken by individuals applying to be licensed as Real Estate Brokers. While the Ontario Real Estate Association was not an institution under the Act, it, as the nominee of the Registrar of Real Estate and Business Brokers, conducts and administers training programs which include the testing of examinees. The Real Estate and Business Brokers Act provides that the Registrar or his or her nominee review the examination paper on request where an individual fails the exam. The Registrar has the statutory right to compel the production of a copy of the examination in these circumstances. Therefore, the Commission ruled that, for the purpose of reviewing the marking of an examination, the Registrar, and hence the ministry, had control over the records. The Commission went on to note that the institution's retention schedules ought to be amended to ensure that the records would be kept in future. (Order #P-629)

• In this case the notes of a member of the Social Assistance Review Board, which were contained on a preprinted form entitled 'Record of Hearing', were assumed to be in the custody or control of the board and governed by the access and privacy legislation. (Order #P-648)

• Records in the custody of lawyers who have been privately retained by an institution are still in the "control" of the institution. As well, s.6(6) of the Solicitors Act confirms that the records are fundamentally those of the client and that they shall be returned to the client on payment of the fee. In essence, the lawyer holds records as an agent of the client. (Order #M-315, M-1078)

• The records of the Judicial Appointments Advisory Committee were in the custody or under the control of the Ministry of the Attorney General. The Committee operated as a part of the Ministry of the Attorney General (see above under "Right of Access"). The Commission found that the records kept by the Committee members were under the control of the ministry. The Commission considered that the records were in the Committee members' control or custody because of their responsibilities as members, that the records may be relied upon in determinations made as part of the members' responsibilities and that the Committee is part of the ministry. (Order #P-704)

• Court reporters' notes taken at Criminal Code Review Board hearings were held to be in the custody or under the control of the Board. The Commission found that in this case the reporter acted as the trustee or repository of the notes or tape recordings created as a result of an engagement with the Board. The right of control over such records remained with the Board and the Board's consent was required before a transcript may be ordered by any party to a Board proceeding. (Order #P-822, see below Orders P-52, P-119 where court reporters' notes were held not to be in the custody or control of the institution.)

• The Commission ruled that tape recordings, created by a court reporter during a hearing of the Ontario Criminal Code Review Board (OCCRB), are in the control of the institution, the OCCRB. The OCCRB did not have custody of the tapes but it did have control over the tapes in that it's consent was required before a transcript could be issued. The fact that the tapes were only a "back-up" of stenographic notes did not change this analysis. (Order #P-912)

• Where a municipality passed a resolution stating that the administrator is not required to submit a detailed listing of chargeable calls for the administrator's cellular phone, this did not dispose of the issue of whether the municipality had custody or control of the requested records. Despite the resolution, the Commission found the municipality remained in complete control of whether it chooses to exercise its right to possess the records. Thus, even though an institution is not "required" to keep a record, the Commission can make a determination that the record is under the custody and control of the institution. In a postscript in this case, the Commission stated that the above is particularly true when the record deals with expense claims in a public institution because there is a public expectation that the expense claim verification process is being properly administered.(Order #M-452).

• Minutes of meetings of the Board of Directors of the Canadian Blood Agency, were found to be in the custody of the Ministry of Health when a representative of the Ministry received the minutes. (Order #P-1291)

• Working papers and draft reports produced and maintained by accountants retained by the institution's outside Counsel were found to belong to the institution and be under its control. The records were: 1) prepared for the institutions use and benefit not for the accountant's own information; 2) made available to both the Counsel and the institution's local solicitor; 3) relied on to make decisions regarding a dispute involving a municipal official; and 4) the institution was responsible for paying the fees incurred by the accountants in performing their work on its behalf. (Order #M-1078)

Records Not in the Custody or Under the Control of the Institution

• Although the Ministry of the Attorney General may be in "possession" of records relating to a court action in a court file, because of the Ministry's limited ability to use, maintain, care for, dispose of and disseminate these records, the Ministry cannot be said to have custody or control over these records for purposes of the Act. Accordingly, to the extent that such records are located in a "court file", they cannot be subject to an access request under the Act. The same principles apply to records in files maintained by Justices of the Peace and Small Claims Court. However, copies of court records which exist independently of the "court file" are within the custody or control of the institution possessing them and therefore, are subject to access under the Act. Court records are those records which relate to a court action and which are found in a court file. In this case, an "information" or a record which confirms that an individual attended at Court to swear an "information" before a Justice of the Peace and which are located in a court file would fall outside the Act. (Order #P-994, P-1416). Writs of seizure and sale in possession of the sheriff are not within the custody and control of the Ministry of the Attorney General and therefore fall outside the scope of FIPPA. (Order #P-1089). Jury rolls for criminal trials, as opposed to civil trials, are not within the custody and control of the Ministry of the Attorney General and therefore fall outside the scope of FIPPA. (Order #P-1151). Court records which are copied for security purposes and maintained on behalf of the court for the same purpose as the original court records are not in the custody or control of the institution. (Order #P-1283) .

• An institution does not have custody of a court reporter's notes where the notes are not delivered to the institution or to the reporter's employer. In order to establish control of a court reporter's notes, the institution's procedures must be considered. If any member of the public can gain access to the notes, then the institution does not have control. If the institution must approve production or distribution of notes, then the institution has control. In order to determine the issue, one can look to relevant legislation, contracts or practices. (Orders #P-52, P-119, P-822 (above) contra regarding court reporters notes taken at the Criminal Code Review Board.)

• The records in the possession of the community college ombudsman are not in the custody or under the control of the college where the ombudsman is not subject to the direction of the college, and the college has no rights of access to the ombudsman's files. The college ombudsman was appointed by and reported to a committee on which the college did not hold majority membership. Funding for the ombudsman office was shared equally by the college and the students' association. The college had formally agreed that it was precluded from any direct or indirect dealings with the college ombudsman's files. The records are kept and retained separately from the institution. (Orders #P-271, P-509)

• Records concerning the names of companies that obtained the services of employees as a result of the Futures program are not in the custody or control of the Ministry of Education. Futures program delivery organizations are not agents of the ministry. The program is delivered on a purchase of service basis through a transfer payment contract with the Youth Employment Counselling Centre. Information about employers is not forwarded to the ministry. (Order #P-384)

• Where a tribunal board member's personal notes about a hearing are not kept on the board's premises, they are not in the custody or control of the board. The board does not regulate the use of the notes and takes no steps to exert control over them. In this case the notes were created by the board member for her own personal use and, according to the representations, the member never allowed any other person to see, read or use the notes for any purpose. The Commission noted that if the notes had been contained in the appellant's appeal file or in any other record-keeping system over which the board had administrative control, they would properly have been considered in the custody or control of the board, and governed by the Act. (Orders #P-396, P-505, P-1132)

• Notes made at an Ontario Municipal Board hearing by a board member who presided at the hearing are not under the custody or control of the board. The notes were located outside the board's premises in the Board member's personal possession in his home. The board does not require that its members take notes at hearings, nor does it regulate the use of the notes or exert any control over them. They were created by the Board member for his own personal use. As per the member's practice, he destroyed the notes shortly after he issued his final order in the hearing. An affidavit from the Manager of Finance and Administration confirmed these facts. (Order #P-505)

• Where a record contains legal advice provided to an employee in his or her personal capacity from a privately retained lawyer, the record is not in the custody or control of the institution. This is so even though the record contains information regarding the appellant that is referrable to the request. In this instance, the record was not created as part of the employee's duties, the institution had no right of possession by statute or otherwise, the institution had no authority to regulate the use of the record, the record was never relied on by the institution and the record was never in the possession of the institution. (Order #P-451)

• Working papers created by an external auditor who conducted an audit of an institution's financial records were not in the custody or under the control of the institution. In this case the institution was a Board of Education that had the audit done under s.234(2) of the Education Act. The Act requires that the auditor be independent of the board. The working papers were never in the possession of the board and there was no legal right for the board to obtain copies of the papers. The papers are not relied on by the board and have no relation to any other records that the board keeps. As a result, the working papers regarding the audit were not subject to an access request under the Act. (Order #M-152)

• The background notes and test results kept by an independent psychologist, engaged occasionally by a police force to do assessments of candidates who were being considered for promotion, were not in the custody or under the control of the police force. The psychologist provided a brief summary of the psychological report to the promotion committee. The candidate received a copy of the full report. The police force did not obtain the background notes or test results or a full copy of the report. The records were kept in the psychologist's private office and were never received by or integrated with the police force records. (Order #M-165)

• The report of an engineering consulting firm was held to not be in the custody or under the control of a Town. The report was not created for or on behalf of the Town, but rather, was created independently by the Town's insurers as a result of a claim filed against the Town. The Town did not have the right to either obtain, retain or dispose of the report. The record was never in the custody of the Town or any of its officials and had never been seen by any officer of the Town. (Order #M-387)

• Records relating to tenders for the operation of Jobs Ontario training programs in several counties were held not to be in the custody or under the control of the Ministry of Education and Training. The Commission found that the programs were operated through independent brokers who were solely responsible for the programs. Moreover, the institution's staff did not create the records and did not have custody of them except in exceptional circumstances and such custody would be intermittent. The institution had no authority to regulate the use or disposal of the records held by the brokers. (Order #P-794)

• Records in the custody of a lawyer hired as an investigator to provide an impartial and independent inquiry into a complaint were prepared for his own benefit and do not fall within the categories set out which indicate custody or control. In this case, the terms of the agreement between Hydro and the lawyer setting out the conditions of his employment and the maintenance of the records led the Commission to conclude there is no control over the investigation records by Hydro. (Order #M-506)

• This section permits institutions to withhold parts of records on the basis that they are not responsive to a request. (Order #P-913, P-970, P-971)

• When a student who was neither an employee nor representative of a board of education attended an arbitration meeting of the board as part of his studies, the records created by the student regarding the meeting were not in the custody of the institution. It was found that despite the fact the student later became an employee of the board, the records created while he was a student were not provided to the board and were therefore not in the custody and control of the institution.(Order # M-653)

• Notes and documentation maintained by a consultant hired to investigate a workplace harassment complaint, were not under the custody or control of the institution because the consultant kept the records separate from those of the institution, and nothing in the consulting contract required them to be provided to the institution. (Order #M-673)

• The Ministry of Community and Social Services' (MCSS) access to records of the Children's Aid Society, a transfer payment agency, is limited to requiring financial accountability for the funds provided to the CAS and to periodic administrative reviews to ensure compliance with the Child and Family Services Act. Even though MCSS has statutory access to Children's Aid Society records for audit purposes, this does not mean that these records are under the control of the MCSS.(Order #P-1069, P-1199)

• Writs of seizure and sale issued by a court and retained in a sheriff's office are not in the custody or control of the Ministry of the Attorney General. (Order #P-1089)

• The Commission held that the following records in the custody of the institution's privately retained solicitor (not in-house counsel) are not under the institution's control for the purposes of this section and therefore, do not fall within the scope of the Act: (a) Documents prepared by the solicitor for his own benefit and protection, the preparation of which is not chargeable against the client, namely personal notes of conversations and meetings; and (b) documents sent or provided by the institution to the solicitor, the property in which was intended at the date of dispatch to pass to the solicitor, namely documents which are in essence letters, authorities and instructions to the solicitor in the context as between the client and his/her lawyer. (Order #M-824)

• Correspondence sent by a member of the public to an individual municipal Councillor was not in the custody or control of the municipality for the purposes of the Act. Even though the Councillor read from one of the letters at a council meeting the records were retained by the Councillor. None of the records were deposited with Council, nor did the municipality retain the records or exercise control over them. The Commissioner also held that municipal Councillors are not generally considered to be officers of the municipal corporation. (Orders #M-813, M-846)

• Police forces do not have control over information which is shared with Crime Stoppers. The Commission did not accept the appellant's position that the Police must have a right of possession to the records, or they could not have obtained them from Crime Stoppers. Crime Stoppers' arrangement to share information with the Police is purely voluntary in nature and a protocol developed specifically restricts the manner in which the Police can use the information which Crime Stoppers provides to them. (Order #M-875)

• Because the City only appointed two of the twelve directors of a retirement corporation, the City did not have custody or control of the financial statement. Also the record was not created for the purpose of informing the City of the financial status of the corporation. (Order #M-1049)

• In this case records generated by an employee which he stated were his personal diary notes of business meetings and conversations were not under the custody or control of the ministry. They were generated for his personal use; the Ministry did not rely on them for Ministry use; the records was never in the possession of the institution; the entries were made on his personal time and kept at the employee's home. (Order # P- 1532)

Appeal process

• The requester can not expand the nature of the request during the appeal process. In addition once an appellant has narrowed an appeal, the appellant can not reintroduce the excluded information later. (Order #P-972)

ss.(1)--Record

• While there is, generally, no duty to "create" a record in response to a request, creation of a record is sometimes consistent with the spirit of the Act, and enhances the purpose of the Act in respect of access. The Commissioner, however, has no power to order the institution to create a record when no record exists. (However, in Order #M-18 the Commissioner ordered an institution to create a record containing salary range.) (Order #P-99)

ss.(2)--Severance

• The head cannot rely on exemptions without first considering whether parts of the record could be disclosed without revealing exempt material. The key issue is reasonableness. A valid severance provides the requester with information responsive to the request. (Orders #P-14, P-20, P-22, P-24, P-30, P-40, P-43, P-48, P-49, P-56, P-57, P-64, P-72, P-92, P-123, P-124, P-134, P-150, P-159, P-180, P-187, P-771, M-534, M-514)

• Where exempt and non-exempt information is so interwoven that a reasonable severance is not possible, the record may be exempt in its entirety. (Orders #P-196, P-323, M-69)

• This subsection applies to the law enforcement exemption even though s.10(2) [FIPPA] \ s.4(2) [MFIPPA] refers to the content of a record, while s.14(2)(a) [FIPPA] \ s.8(2)(a) [MFIPPA] exempts a class of record--a "report." If all of the record is a "report" and is determined to be within ss.(2)(a), it may be exempt in its entirety. (Orders #P-30, P-38, P-94, P-124, P-134, P-137, P-200, P-221, P-239, P-250)

• Nothing in the Act permits an institution to sever out information in a record because the requester already knows that information. (Order #P-210)

• In this case the Commission ordered the institution to sever information related to a request and as a result the anonymized record was ordered disclosed as it was not exempt under the Act. (Order #M-264)

• The Commission may refuse to provide an institution with a second opportunity to consider the issue of severance when experienced staff in the institution could have done this when the original decision letter was issued. (Order #P-771)

• The Ontario Divisional Court ruled that in applying this provision the Commissioner approached the issues too narrowly, in that he considered the amended record and determined that it did not fall within one of the exemptions. The Commissioner should have first considered whether the whole record contained any information which fell within one of the exemptions. If he found that it did, then he should have gone on to consider whether the amended record disclosed information that fell within one of the exemptions. (Lincoln County Board of Education and Information and Privacy Commissioner/Ontario, Ontario Divisional Court, June 20, 1995, Court File No. 289/93, Justices McMurtry, Sanders and Winkler).