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Document
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PO-2103
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File #
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PA-020025-1
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Institution/HIC
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Ministry of Agriculture, Food and Rural Affairs
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Summary
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BACKGROUND: The Animals for Research Act ( ARA ) governs the use of animals for research in Ontario. The ARA is designed to meet the needs of medical research while at the same time ensuring, as far as possible, the comfort and well-being of animals used in research. The ARA is administered by the Ministry of Agriculture and Food (the Ministry). The ARA permits only three sources of animals for research: registered research facilities; municipal pounds; and supply facilities. Municipal pounds generally operate under the authority of by-laws made under the Municipal Act . [see section 210(1)-(13)]. Some municipal pounds are owned and operated by the municipality, while in other cases a private business operates the pound on behalf of the municipality, pursuant to a contract. The ARA and its regulations govern various aspects of the operation of pounds, including the standard of care for animals and the keeping of records. Under sections 20(4)(a) and (b), where a pound operator has impounded a dog or cat with an identification tag, the operator must notify the Ontario Society for the Prevention of Cruelty to Animals (OSPCA) and take reasonable steps to find its owner. Under section 20(5), the pound must not destroy or permit to be destroyed an impounded dog or cat, until a specified redemption period has expired. Once the redemption period has expired, the pound may (among other things) sell the animal to a research facility [section 20(6)(c)] or destroy it [section 20(7)]. Under the ARA and its regulations, a pound has a duty to maintain detailed records of every animal it holds and to preserve the records for a specified period [section 20(12) of the ARA and section 10 of Ontario Regulation 23]. A breach of most provisions of the ARA constitutes an offence and is punishable by a fine or imprisonment [section 21]. For enforcement purposes, inspectors appointed by the Minister of Agriculture and Food may enter and inspect a pound, and demand the production of pound records [section 18]. In 2001, the Ministry charged two operators of a pound (the pound) with offences under the ARA as a result of an incident in which a family dog was impounded, sold to a research facility and destroyed. Each was charged with failing to notify the OSPCA that an impounded dog had an identification tag [section 20(4)(a)] and, under section 20, failing to honour the three-day redemption period. Both operators pleaded guilty, and were fined and convicted in 2002. NATURE OF THE APPEAL: The appellant, a non-profit animal protection group, submitted a request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Ministry for access to records held by the pound for the period from October 2000 to October 2001. The pound in question was a private business providing pound services by contract to several municipalities. The Ministry responded to the request as follows: Records maintained by pounds are not in the custody or under the control of the ministry. However, two pound cards obtained by the ministry for an investigation respond to your request. Access to these records is denied under section 14(1)(a) and (b) of the Act . . . . . . Section 14(1)(a) and (b) apply because disclosure of the records would interfere with a law enforcement matter and investigation. The appellant appealed the Ministry's decision to this office. In its letter, the appellant provided extensive submissions in support of the appeal. This letter has been provided to the Ministry. During the mediation stage of the appeal, the Ministry agreed to release the two pound cards for which it had claimed exemption under section 14(1)(a) and (b) of the Act . These records are therefore no longer at issue, and I will not refer to them further. Accordingly, the sole remaining issue to be dealt with in this order is whether records in the possession of the pound are in the Ministry's custody or control within the meaning of section 10(1) of the Act . I sent a Notice of Inquiry setting out the issues in the appeal initially to the Ministry, which provided representations in response. I then sent a Notice of Inquiry, together with the Ministry's representations, to the appellant, who in turn submitted representations. DISCUSSION: CONTROL OF THE RECORDS Introduction 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). The records that remain at issue are not in the custody of the Ministry. Therefore, the sole issue in this appeal is whether the records are "under the control" of the Ministry within the meaning of section 10(1). If so, the right of access under section 10(1) applies. In the Notice of Inquiry, I asked the parties to provide representations in response to the following questions regarding the "control" issue under section 10(1). I also made reference to various authorities under each question, where appropriate: Does the Ministry have a statutory power or duty to carry out the activity that resulted in the creation of the records? [Order P-912, upheld in Ontario (Criminal Code Review Board) v. Ontario (Information and Privacy Commissioner) (March 7, 1997), Toronto Doc. 283/95 (Ont. Div. Ct.), affirmed (1999), 47 O.R. (3d) 201 (C.A.)] Is the activity in question a "core", "central" or "basic" function of the Ministry? [ Ontario (Criminal Code Review Board) ] Who paid for the creation of the records? [Order M-506] Are the [municipality] and/or the pounds agents of the Ministry for the purposes of the activity in question? If so, what is the scope of that agency, and does it carry with it a right of the Ministry to possess or otherwise control the records? [ Walmsley v. Ontario (Attorney General) (1997), 34 O.R. (3d) 611 (C.A.)] Who owns the records? [Order M-315] Were the records created by an officer or employee of the Ministry? What use did the creator intend to make of the records? Does the Ministry have a right to possession of the records? Does the Ministry have the authority to regulate the records' use? Does the Ministry have the authority to dispose of the records? What impact, if any, does the Animals for Research Act and its regulations have on the control issue? These questions reflect a purposive approach to the "control" question under section 10(1). A similar approach has been adopted in Ontario and other access to information regimes. In Ontario (Criminal Code Review Board) v. Ontario (Information and Privacy Commissioner) , [1999] O.J. No. 4072, the Court of Appeal for Ontario (at p. 6, para. 34) adopted the following passage from the Federal Court of Appeal judgment in Canada Post Corp. v. Canada (Minister of Public Works) (1995), 30 Admin. L.R. (2d) 242 at 244-245: The notion of control referred to in subsection 4(1) of the Access to Information Act<
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Legislation
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Signed by
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David Goodis
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Published
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Jan 23, 2003
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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