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FIPPA MFIPPA


s.24 SUMMARY OF ORDERS/PRIVACY REPORTS s.17


(See as well, cases summarized under s.48 [FIPPA] \ s.37 [MFIPPA])



General



  • A request sent by fax transmission is a request "in writing" under the Act. The Interpretation Act, in s.29(1), defines "writing" to include words "printed, painted, engraved...or represented or reproduced in any other mode in a visible form." The term "facsimile" is defined in the Concise Oxford Dictionary to include "an exact copy of writing or printing..." While the Act requires that a request for access be in writing, there is nothing in the Act that restricts the method of transmission or delivery of a request. The Act does not require the filing of a request in its original writing. When an institution receives a request by fax, it has no obligation to ensure that it is identical to the original document that was faxed. (Order #M-207)


  • 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. (Order #P-562)


  • Institutions should set up logs for incoming mail to ensure that if a requester asks for certain correspondence the institution will be able to find it. (Orders #P-79, P-85)


  • Clear guidelines are needed regarding records retention schedules. The Commissioner asked the institution to discuss this with the Director of Compliance in order to produce written guidelines regarding the maintenance of personal information banks, and retention and disposal of records. (Orders #P-35, P-45)


  • The Act does not preclude a requester from submitting the same request more than once. The fact that the institution did not open a new file for the request is not determinative of whether the request was treated as a separate request. (Order #P-202)


  • One can only make a request for recorded information. Oral comments made by an employer cannot be the subject of an access request where those comments were never recorded. (Orders #P-17, P-19, P-99, P-196, M-33)


  • While the Act does not, in most cases, require an institution to create records, or organize them in a particular format, in response to a request, it does give requesters the right to the `raw material', which would answer all or part of a request. In this case, the Commission ruled that the institution had an obligation to advise the requester that the information sought was in records responsive to other parts of the request, rather than advising the requester that the records do not exist. (Order #P-553)


  • Where, after a lengthy search, it is determined that no record as described in the request exists, there is no legal requirement to create a record to answer a request. (Orders #P-13, P-99, P-317)


  • While there is, in general, no duty to create a record, it may in certain circumstances be, consistent with the spirit and purpose of the Act to do so. The Commissioner, however, has no power to order an institution to create a record where there is no requirement to do so. However, in Order #M-18, the Commission did require an institution to create a record containing the salary range for a particular position. (Order #P-99)


  • The Act does not provide that a requester's reasons for making an access request are relevant to a consideration as to whether access is given. An individual is free to use any records to which he or she has been granted access as he or she chooses. (Order #P-240)


  • A request may be in the form of a question as long as one may determine from the question what records are sought. (Order #M-493, P-995, #P-17, #P-54, M-530, P-652)


  • Where a request is made for a file, any records contained within the file should be considered responsive to the request. (Order #P-909)


  • Where a requester has sought identical records in previous requests and where, in the circumstances, no new records would have been created, the institution may rely on its former searches and not conduct a new search. (Order P-914)


  • In this case, the wording of a request suggested that the requester was seeking an opinion or interpretation of a by-law and not requesting a specific record. The Commissioner ruled that an institution is not bound to create a record or to do legal research for a requester. (Order #M-577)


  • It is acceptable for an institution to treat a number of requests as one request when it benefits the requester. However, the requester should be consulted before any decision is made to combine requests for the purpose of conducting a search. (Order #P-260)


  • Where a requester has submitted separate requests for records whose subject-matter is closely related and which have common areas of search, an institution may provide a fee estimate for one comprehensive search for all records responsive to each request. In this case, five separate requests from the same requester for records about the transfer of the Psychiatric Patients Advocacy Office to the Advocacy Commission and interest group reaction to the transfer, were properly combined for the purpose of estimating search costs. The requester should be consulted before any decision is made to combine requests for the purpose of conducting a search. The requester should still be provided with 2 hours of free search time for each of the 5 requests. (Order #P-943)


  • A provision in a regulation that stipulates a fee for access to individual records does not confer a right to access such records in bulk form. Also, a regulation which sets a fee for providing a copy of a record does nothing more than establish a price for the document. Such fee regulations do not create rights of access. Rights of access to records are determined by FIPPA/MFIPPA. (Order #P-1114)


  • In this case the IPC determined that it was in the interest of the requester for a record to be considered responsive. This was despite the fact that the requester denied an interest in the record based on its general description and the imprecise wording of his request left the scope of the request open to conjecture. (Order #P-1038)


  • It is not appropriate for an institution to treat a detailed itemized request dealing with records related to one subject matter as multiple requests requiring the payment of multiple access fees.(Order #P-1267)


  • Once an access request is received, an institution has an inherent responsibility regardless of the requirements of a retention schedule to ensure that personal information and general records responsive to a request are retained until the request/appeal process is completed.(Order #M-1121, M-1135)


ss.(1)--Reasonable Search

Evidence Needed to Establish That Search was Reasonable







  • The Commission is responsible to ensure that the institution has made a reasonable effort to identify the record responsive to the request; the institution is not required to prove to the degree of absolute certainty that the requested record does not exist. In this case, the institution provided affidavit evidence and representations. In the circumstances, having regard to the broad nature of the request and the fact that the record would have been almost 20 years old, the Commission considered that the search was reasonable. (Orders #P-458, M-282, M-315)


  • Where an issue has been raised by the requester regarding the reasonableness of the search, the institution is required to establish this to the satisfaction of the Commissioner. Failing that, the Commissioner may order the institution to search its files in the presence of a compliance investigator or to conduct a further search and provide further affidavits as to the results of the search. (Orders # P-211, P-287, P-618, P-708, M-341, P-740, P-747, M-386, P-752, P-753, M-391, P-762, P-787)


  • The Commission was not satisfied that a reasonable search had been conducted and Ordered that an affidavit be provided containing, at a minimum, the following information to enable it to conclude that the institution had discharged its statutory responsibility to conduct a reasonable search: (a) information about the employee(s) swearing the affidavit describing his or her qualifications and responsibilities; (b) a statement describing the employee's knowledge and understanding of the subject matter of the request; (c) the date(s) the person conducted the search and the names and positions of any individuals who were consulted by the person, if any; (d) information about the type of files searched, the nature and location of the search, and the steps taken in conducting the search. (Order #(PO-1857-I)


  • The Commission is responsible to ensure that the institution has made a reasonable effort to identify the record responsive to the request; the institution is not required to prove to the degree of absolute certainty that the requested record does not exist. In this case, the institution provided affidavit evidence and representations. In the circumstances, having regard to the broad nature of the request and the fact that the record would have been almost 20 years old, the Commission considered that the search was reasonable. (Orders #P-458, M-140)

 

  • The Commissioner may order an institution to search its files in the presence of a Commission compliance investigator, where the search originally conducted was not shown to be reasonable. (Order #P-211)


  • Where the Commission finds that the search was not reasonable, it may order the institution to conduct a reasonable search within 15 days of the Order and direct the institution to obtain information concerning the search from experienced staff. If, as a result of the search, records responsive to the request are found, the Commission may order the institution to provide a decision letter regarding access. (Orders #M-148, P-601, M-564)


  • The search that the institution undertakes must be conducted by knowledgeable staff in locations where the records in question might reasonably be located. Where the institution fails to do this, it may be ordered to conduct a further search within 15 days of the date of the Order. It may also be ordered to obtain further information from employees knowledgeable of the institution's records management system. (Order #P-495)


  • The search that an institution undertakes must be conducted by knowledgeable staff in locations where the records in question might reasonably be found. While the affidavit supplied by the institution indicates that verbal inquiries were made to determine whether any responsive records might exist, there was no evidence that any physical search of the institution's holdings actually took place. In this case, the requester sought access to a legal opinion that he believed the institution had in its possession. The Commission ruled that the institution had to show that it had asked its legal counsel about the existence of the opinion. (Order #P-575)


  • Institutions are required to provide more than a bare statement that the record does not exist or could not be located to put the requester in a reasonable position to decide whether or not to appeal the institution's decision. Institutions are required to provide a full explanation to the requester as to the nature of the search and that the search was conducted by knowledgeable staff. (Order #M-191)


  • Where the affidavit and other material that the institution provided to the Commission in an appeal were not sufficient in establishing whether a search for records was reasonable, the Commission, may order the institution to conduct additional searches for the records. (Orders #P-535, P-536)


  • Simply stating, in an appeal submission, that a director had reviewed the file and found no records responsive to the request does not establish the reasonableness of the institution's search. (Order #P-664)


  • The Commission has the duty to determine on the standard of reasonableness the efforts that the institution undertook to search for the records. The powers of the Commission do not require it to enter the premises of the institution to look for records; the Commission may do so in its discretion and may also determine its own process. The institution that asserts that the records do not exist bears the onus of establishing that fact. The Commission held that the intention of the legislature was not to require that it bear the cost burden of undertaking searches of the records of institutions. The institution knows its records, and therefore it is appropriate that it undertake its own searches. As a result, the Commission held that it had the power to order the institution to provide an affidavit as to the reasonableness of the search, though it did not exercise it in this case, and that it could order the institution to conduct a further search for records responsive to the request. The Commission ordered the institution to do the latter. In addition, the Commission ruled that records kept by the privately retained lawyers for the institution were in the control of the institution [see s.10 FIPPA \ s.4 MFIPPA] and that therefore the institution was ordered to search for records responsive to the request, which are in the custody of their lawyers. (Orders #M-315, P-785)


  • Where a requester could provide no credible evidence to support the existence of records, thorough and detailed searches conducted by the institution were sufficient to determine that records did not exist. (Orders #P-277, P-383, P-386, M-72, M-73, M-74, M-76, M-93, M-100, P-714)


  • An affidavit from the author of certain records which indicated that the records in question were created and then destroyed, because in the circumstances they were not needed, is sufficient evidence that the records do not exist. (Orders #P-335, P-336, P-429, M-520)


  • In this case the affidavit was not sufficient in that it did not provide any details as to the nature and extent of the search or the qualifications of the person who undertook the search on behalf of the institution. (Order #P-986)


  • In cases where the appellant has not provided sufficient evidence to support the existence of responsive records, and the Ministry provides an explanation given by an employee experienced with such records as to why such a record would not exist, the Ministry has provided sufficient evidence to show that it has made a reasonable effort to identify the record. (Order #P-1116)


  • It is not considered to be a "reasonable search" when a search is conducted for only one "type" of record (eg. tape recordings) in response to a request, when other types of records (eg. paper copy) may exist as well. (Order #P-1158)

 

  • A search is reasonable when records can not be located by the institution and the record retention schedules for the type of records requested indicate that these records have been destroyed. (Order #P-1329)


  • In (Order #M-1077), the Commission ruled that it would not be reasonable to expect an institution to question over 800 staff in order to identify a staff member who may have dealt with a requester and therefore may know of additional records.


  • In a reasonable search inquiry, the Commissioner has the power and the obligation to satisfy herself that all reasonable steps have been taken to locate and identify records responsive to a request. To do this, the Commissioner may ask and require that institutions answer questions about facts and circumstances of the record. The Commissioner has "the ability as well as the responsibility to determine what questions are objectively relevant in this regard, and to require that these questions be answered...it is not acceptable for the government to refuse to answer direct questions of this nature, and to require [the Commissioner] to accept indirect answers derived from the evidence it chooses to submit." (Order # PO-1954-I)


  • Where a considerable time period has elapsed, former employees may not be able to identify the existence and/or locations of specified records. However, former employees may be called upon to assist present employees in their searach for records created prior to their assuming their positions. Further, individuals assuming the positions of former employees assume the obligations of their predecessors in relation to record keeping practices. (Order PO-1981)



Parameters of the Search



  • In this case the adjudicator concluded that because the Ministry had unilaterally and without justification narrowed the scope of the appellant's request, it had failed to search for all records which may be responsive to the request. The adjudicator ordered the Ministry to conduct a search for records in accordance with the plain meaning of the request, which covers records of the Minister received or sent in any capacity as Minister, an MPP or as a member of Cabinet. (Order# PO-1897-I)

  • The search for responsive records is determined by the parameters set out in the wording of the request. Where the request is clear and provides sufficient description of the records sought to enable an experienced employee of the institution to correctly identify the responsive records, the search in respect of the request would be appropriate. (Orders #P-456, M-259, M-275, P-781, P-1047)


  • The Commission ruled that the institution's reliance on searches conducted with regard to a previous request in reaching the conclusion that it did not have a copy of the requested record was reasonable. The request was submitted only a few months prior to the present request, and it was clear that the requested record fell within the ambit of the previous request.( M-254). The Commission noted that in some instances this approach would not be reasonable. For example, in this case, one request was for personal information and the other was for general information regarding a particular address. Even though the subject matter was similar, the requests were different. (Orders #, M-275)


  • It is not acceptable for members of the public to be denied access to records that they would otherwise be entitled to receive, solely on the basis that the institution's records management systems are inadequate or deficient. (Order #P-350)


  • The institution had conducted a reasonable search for records relating to calls for assistance made by the appellant to the Pickering police in 1965. After reviewing historical records, the institution's automated records and microfilm, the institution searched the former building that housed the records and contacted a former police officer referred to by the appellant as someone who may know about the records. While the records were not located, the Commissioner was satisfied that the search was reasonable. (Orders #M-9, M-21, P-313)


  • In this case, a retired police officer's notebook was relevant to a request. The police force required that notebooks be destroyed after a certain period. While the time period for destruction had elapsed, the police force contacted the retired officer to confirm that the notes had been destroyed. The Commission ruled that the search was reasonable and that the records no longer exist. (Order #P-453)


  • While the requester sought a "manager's" file concerning himself, it was clear that what was meant was the "superintendent's" files. Since the institution has not searched those files the Commission ordered it to do so. (Order #P-917)


  • Where a contentious situation in a Ministry was investigated by the Children's Aid Society, it was not reasonable for the Ministry to search for the investigation record only in the office where the investigation was conducted. (Orders #P-936)


  • When an institution is unable to locate responsive records for a request for correspondence from that institution to various other specified institutions, the institution is obliged to make inquiries and transfer the request to the institutions that have custody and control of responsive records. (Order #P-1188)


Records responsive to request



  • An institution provided a record to the IPC in an appeal but did not specify that part of the record was not responsive to the request. Later, the institution failed to advise the mediator that the description of the record in the Report of Mediator was erroneous, despite being given an opportunity to do so. As a result, the IPC found the whole record to be responsive to the request. (Order # MO-1338)


  • 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)


  • 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. In determining which documents are relevant to a request, relevance means responsiveness. Relevancy means anything that is reasonably related to the request. (Order #P-880)


ss.(2)--Sufficiency of Detail



  • An institution that receives a broadly worded request has three choices: it can respond literally to the request, which may involve an institution-wide search for the records; it can request further information from the requester in order to narrow its area of search; or it can narrow the search unilaterally. If the third option is chosen, the institution must outline the limits of the search to the requester. (Orders P-33, P-38, P-65, P-81, P-99, P-287, P-490, M-735, M-909)


  • There is no need to clarify a request if the institution knows what is being requested. (Orders #P-13, P-221, P-287)


  • Where a request is for information that exists in a format different from that which is asked for, the institution must advise the requester of the existence of the related records. It is then up to the requester to decide whether or not to obtain these related records and sort through and organize the information into the originally desired format. While, with the exception of information stored in a computer, an institution is not required to create a record in a particular format, where the institution undertakes a manual search of its files in order to create a record responsive to the request, it must advise the requester of the situation. In this way prior to undertaking a potentially time consuming and expensive task of creating a record, the institution would know whether the requester is interested in receiving the record in the format requested. (Orders #P-50, P-491, P-553)


  • Rather than taking a narrow approach to the Act, an institution's coordinator should meet with the requester and offer assistance in reformulating a request so that information that a requester is entitled to can be provided. (Order #P-99)


  • Upon receipt of a request, the institution must first be satisfied that the request is sufficiently clear that an experienced employee could identify the record. If it is not sufficiently clear, the institution must offer the requester assistance in reformulating the request. The Act does not require the institution to prove to the degree of absolute certainty that the requested records do not exist. (Orders #P-486, M-172)


  • The obligation to assist a requester in reformulating a request only arises where the request is unclear or broadly worded. Where, as here, the request was detailed and clearly identified the records that were sought the need for clarification did not arise. The institution was obliged to consider the request, locate the records and determine whether or not they were responsive to the specific parameters of the request. (Order #P-816)


  • Where a requester provides sufficient details on the nature of the records being sought, and has identified numerous specific records, it is not reasonable for the institution to supply affidavits of search with only a general description of search. The institution must provide evidence of the extent and results of the search undertaken for records responsive to each enumerated document type.( Order #M-537)


  • It is incumbent on the institution to assist the requester in clarifying the request. In this case, the institution was not obliged to create a list of similar real properties in the vicinity of the requester's company's property. However, the institution should have determined which of three possible interpretations was consistent with the requester's intention in submitting the request.(Order #P-906)


  • Where the institution was unsure about information the requester was seeking, it should have contacted the requester to determine the scope of the request. It should not unilaterally narrow the scope of the request. (Order #P-1007)


Continued Access (FIPPA only)

s.24(3) [FIPPA]



  • Continued access is predicated on the existence of the record at the time the request is received by the institution. (Orders #P-82, P-164)


  • The continued access provision does not preserve access for other requesters; only the requester, him or herself, can take advantage of this provision. As well, continued access is intended to apply to records produced in a series and not to records where only one edition is produced. (Orders #P-164, P-641, P-1358)


s.24(4) [FIPPA]



  • The test for frequency of the continuing access request is one of reasonableness. (Orders #P-107, P-108)


  • If a formal request under the Act is necessary, news releases are the type of records appropriately included within the scope of this section. They are produced on a frequent and regular basis and are actively disseminated without the need to apply exemptions. (Order #P-1099)


s.24(5) [FIPPA]



  • The decision to grant access to the original request need not automatically be applied on the subsequent dates in the schedule. (Orders #P-82, P-164)

  

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