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| s.25 |
SUMMARY OF ORDERS/PRIVACY REPORTS |
s.18 |
s.25(1) [FIPPA] \ s.18(2) [MFIPPA]
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This provision imposes mandatory and specific obligations on an institution
which must be followed. In this case, there was considerable confusion over
whether a record existed. The Commission noted that if the proper procedures had
been followed, the fact that the report was an oral one could have been
communicated to the requester at the time of the institution's response to the
original request. (Orders #P-58, P-795)
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An institution is required to transfer a request where it does not have
custody or control of the records in issue and where it has knowledge that
another institution does have the records in its custody or control. (Orders #P-666,
P-646)
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The procedural scheme established by the Act clearly contemplates that the
government speaks with one voice with respect to requests. Thus, one government
institution cannot claim that certain records do not exist because they are held
by another ministry. As well, the Commission need not notify other institutions
that may have an interest in the records in the appeal. The legislation contains
various provisions which contemplate that the institution may canvass other
institutions if necessary, eg. transfer the request to the institution which has
custody and control, transfer the request to the institution with the greater
interest in the record, consult with other institutions before making an access
decision. (This consultation is facilitated by means of a time extension).
(Order #P-902)
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Even when a request is transferred from one institution to another, it is
still necessary for the second institution to consider whether another
institution has custody or control of the record before informing the requester
that the record does not exist. (Order #P-59)
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The Commissioner on an appeal may order the institution to forward a request.
(Order #P-119
, P-1400)
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The SkyDome failed to comply with this provision when it did not transfer
requests regarding records held by a negotiating committee to the Ministry of
Treasury and Economics. The committee was appointed by the Treasurer and
reported to the Treasurer regarding the proposed sale of the SkyDome. (Order #P-386)
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Where an institution is aware that other institutions may also have records
which respond to a request, the institution should forward the entire request or
the relevant portion of the request to the other institutions for response. The
institution should not advise the requester to submit separate requests to other
institutions which may have responsive records. (Order #P-1268)
s.25(2) [FIPPA] \ s.18(3) [MFIPPA]
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The Ministry of Government Services (MGS) was correct in transferring to the
Ministry of Correctional Services (MCS) a request for access to an agreement of
purchase and sale, which was negotiated between MCS and a third party company.
It was evident that MGS had a limited role in the sale of the property and was
not involved in the discussions and negotiations surrounding the agreement.
(Order #P-279)
- A decision under this provision can be appealed by the requester. (Order
#P-1498)
- In this case the Commission considered the following factors to determine
that it was not appropriate to transfer a request after 15 days: 1) the
purpose of the section and of the Act; 2) the reasons for the transfer; 3) the
timing of the transfer; 4) the nature and complexity of the records; 5) the
relative prejudice to the parties. (Order #P-1498)
- The 15-day time limit to transfer a request applies even if the
institution believes that the records fall outside the scope of the Act.
(Order #P-1498)
s.25(3) [FIPPA] \ s.18(3) [MFIPPA]
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Records related to tenders for the operations of jobs Ontario training
programs in several counties were properly transferred to a community college
and a regional municipality under this provision. The Commission was satisfied
that these entities operate as independent brokers and that they are solely
responsible for the implementation of the jobs Ontario agreement entered into
with the Ministry of Education and Training. (Order #P-794)
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The transfer conditions set out in this provision are discretionary. That is,
even if another institution does have a greater interest in the record, the
institution receiving the request is under no obligation to transfer the
request. (Order #M-674
, P-1428)
- A requester sent two institutions the same request. The
first institution transferred parts of the request at 3 separate stages in
the request and appeal process. Despite the unreasonably late timing of
the second and third transfers which occurred during the appeal mediation
and representation stages, the transfers were both allowed. This was due
to the following 2 mitigating factors: 1) The lateness of the transfers
was not considered truly prejudicial to the requester as the second
institution had received simultaneously the same request for the records,
and 2) the IPC determined that there would be significant prejudice to the
second institution if the transfers were not upheld.(MO-1494)
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OCIPO 