|
|
|
|
|
|
|
|
|
|
|
|
|
|
Document
|
|
PO-1830
|
|
|
|
|
|
File #
|
|
PA-000010-1
|
|
|
|
|
|
Institution/HIC
|
|
Ministry of the Environment
|
|
|
|
|
|
Summary
|
|
NATURE OF THE APPEAL: The appellant made a request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Ministry of the Environment (the Ministry). The request was for access to any and all information relating to the appellant's complaint file. The appellant's complaint was lodged with one of the Ministry's Drive Clean offices. The Ministry disclosed all of the records it initially identified as responsive to the request. The Ministry advised the appellant that no other records exist. The appellant appealed the Ministry's decision on the basis that additional responsive records should exist. In support of this, the appellant advised that a named company which has a contract with the Ministry relating to the Drive Clean program has information relating to his complaint in its possession. The appellant also indicated his belief that the named company had sent the records in its possession to the Ministry but that the Ministry returned them unopened. The Ministry initially took the position that the records in the possession of the named company are not within its custody or control. During mediation, the Ministry explained to the mediator that it had "contracted out" with the named company to conduct emission testing and other services and that this arrangement was essentially a privatization agreement. The Ministry refused to provide a copy of the Agreement to the mediator indicating that it would address this issue at inquiry. The Ministry also confirmed that the named company had sent the records to it but that it returned them to the company unopened as it believed a decision to provide information to the appellant should be made by the named company as a private business. Also during mediation, the Ministry conducted a further search for responsive records and located additional records. In addition, during the mediation and inquiry stages of the appeal, the named company forwarded certain records to the Ministry which the Ministry retained. The Ministry issued three further decisions in which it disclosed some of these records to the appellant and denied access to the remaining records. These decisions, dated March 10, 2000, April 14, 2000 and May 11, 2000 are not at issue in this appeal. The appellant is of the opinion, however, that further records should exist. his office provided a Notice of Inquiry to the Ministry and the named company. The Notice raised two issues: custody or control of the records relating to the named company and reasonableness of search. Representations were received from both parties. The same Notice of Inquiry was then sent to the appellant with the complete representations of both the Ministry and the named company attached. The appellant did not submit representations in response. PRELIMINARY MATTER: CUSTODY OR CONTROL Section 10(1) of the Act provides a right of access to records "in the custody or under the control of an institution" (emphasis added). Some of the records responsive to the appellant's request were not in the custody of the Ministry and the Ministry took the position that it did not have control over them. Therefore, one of the issues identified in this appeal was whether the records are "under the control" of the Ministry within the meaning of section 10(1). If they are, the right of access under section 10(1) applies. The named company takes the position that all information in its possession which is collected through the provision of services under its agreement with the Ministry are paid for by the Ministry and are thus the Ministry's "property". In this regard, the named company states: [The named company] provides a number of services, including covert audits, under its QA/QC (Drive Clean Quality Assurance/Quality Control) Agreement with the [Ministry] ... The Agreement with the Ministry recognizes [the named company's] ownership of the Program Materials developed by [the named company] for the provision of the QA/QC's and further covenants to hold all such Program Materials in the strictest confidence. However, the information, collected through the provision of services under the Agreement, are paid for by the Ministry and as such is the property of the [Ministry]. Since the Ministry is the owner of the information collected by [the named company], the decision on whether or not to release such information lies with the [Ministry]. The only restriction on this ownership and ability to make decision on the release of information is the need to protect the confidentiality of [the named company's] Program Materials and thus avoid a breach of contract. In order to facilitate the ability of the Ministry to release the information, [the named company] has provided the Ministry a summary of the covert audit and the findings in question, under the original Request and this Appeal. The summary does not in any way jeopardize the confidentiality of the [named company] covert process but it does provide a complete and accurate listing of all weaknesses found during the audit in question. In response to the custody or control issue as set out in the Notice of Inquiry, the Ministry states: The Ministry received the records from [the call centre] and [the named company]. As a result, it is the Ministry's position that we can make a decision with respect to access. [The appellant] was provided with the entire [call centre] records on April 14, 2000 and the entire [named company] records on May 11, 2000 except for the Covert Audit report which was denied (see decision letter of April 14, 2000). In terms of the Covert Audit report, [the named company] prepared a summary of the deficiencies found with the [named] Drive Clean Facility and this has also been provided to [the appellant]. Since the contractors provided the records to the Ministry, the questions raised in issue B (custody and/or control) no longer require our response. In its April 14, 2000 decision letter, the Ministry stated: After contacting the two third parties with respect to additional records located involving your comp
|
|
|
|
|
|
Legislation
|
|
|
|
|
|
|
|
Subject Index
|
|
|
|
|
|
|
|
Signed by
|
|
Laurel Cropley
|
|
|
|
|
|
Published
|
|
Nov 06, 2000
|
|
|
|
|
|
Type
|
|
Order
|
|
|
|
|
|
<<
Back
|
|
|
|
Back to Top
|
 |
|
|
|
© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
|