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Document
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P-59
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File #
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Appeal 880236
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Institution/HIC
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Archives of Ontario
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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 (the "Act") which gives a person who has made a request for access to personal information under subsection 48(1) of the Act a right to appeal any decision of a head under the Act to the Information and Privacy Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. On May 16, 1988, the requester asked the Ministry of the Attorney General for various records, including "...all copies of personal letters and replies to the following letters with regards as follows: William G. Davis, Q.C. Premier of Ontario Letter dated March 26, 1983". This part of the request was forwarded to the Archives of Ontario "...pursuant to Section 25 of the Freedom of Information and Protection of Privacy Act because the Archives of Ontario has custody of the records...". 2. By letter dated July 4, 1988, the Freedom of Information and Privacy Co-ordinator (the "Co-ordinator") for the Archives of Ontario (the "institution") wrote to the requester and advised that: ...access cannot be provided because the record could not be located. We have completed a thorough search of the records of the Premier's Office in our custody and control. In the correspondence index we found reference to the letter you have requested, however, upon searching the appropriate boxes it was determined that the file containing your correspondence was missing. It appears that the record was not sent to the Archives of Ontario at the time the records were transferred to this institution. 3. On July 12, 1988, the requester wrote to my office appealing the institution's failure to provide him with the requested record, and I sent notice of the appeal to the institution. 4. At the suggestion of one of my staff, both the institution and the Premier's Office conducted a further search for the record, however it was not found in either location. 5. On September 14, 1988, notices were sent to the appellant and the institution advising both parties that I was conducting an inquiry to review the institution's decision. Enclosed with this notice was a report prepared by the Appeals Officer assigned to this case, intended to assist the parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal and sets out questions which paraphrase those sections of the Act which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. The Appeals Officer's Report indicates that the parties, in making their representations to the Commissioner, need not limit themselves to the questions set out in the Report. 6. Representations were received from the institution, and I have taken them into account in making my Order. No representations were received from the appellant. The issues arising in this appeal are as follows: A. Whether the steps taken by the Archives of Ontario to search for the requested records were reasonable and sufficient in the circumstances of this appeal. B. Whether the Archives of Ontario made all necessary inquiries to determine if another institution had custody or control of the record, as required by subsection 25(1) of the Act . C. Whether the records retention and management procedures followed by the Archives of Ontario are adequate to properly protect the integrity of records transferred to it from other institutions. The purposes of the Act as set out in section 1 should be noted at the outset. Subsection 1(a) provides the right of access to information under the control of institutions in accordance with the principles that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. Subsection 1(b) sets out the counter-balancing privacy protection purpose of the Act . The subsection provides that the Act should protect the privacy of individuals with respect to personal information about themselves held by institutions and should provide individuals with a right of access to their own personal information. It should also be noted that the Act does not specify a burden of proof where access is denied because a record purportedly does not exist. However, as a general principle, the burden of proof rests on the person who asserts a position, so in cases such as the current appeal, in my view, the institution must establish a reasonable expectation that the record in question does not exist. ISSUE A : Whether the steps taken by the Archives of Ontario to search for the requested records were reasonable and and sufficient in the circumstances of this appeal. The institution provided an affidavit, sworn by the Co-ordinator, outlining the steps taken by the institution to search for the requested record. These steps were as follows. a. The Senior Archivist responsible for the historical government records of the Office of the Premier was asked to conduct a search; b. The Senior Archivist reviewed the original file card index which was created by the Premier's Office and subsequently transferred to the Archives. This index is apparently organized in alphabetical order by surname of correspondent. c. Using the appellant's name, the Senior Archivist located two file cards. One card had three entries indicating correspondence received in three different years, one of which matched the appellant's request. The second card was a cross-reference containing one entry under the name of another individual. d. Using the file code indicated in the file card index, the appropriate box was recalled from the off-site government Records Centre. e. The box was searched, but the requested record could not be found. f. In an effort to ensure that the record had not been misfiled, the search was expanded by recalling three other boxes containing correspondence from the appellant in years other than 1983. This search also included a check of the cross-reference under the name of the other individual identified on the second file card. This expanded search was able to locate the records indicated on the file index card, but not the 1983 correspondence at issue in this appeal. As well, none of the boxes contained a cross-reference page which would have indicated that a record had been removed and forwarded elsewhere.
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Legislation
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Subject Index
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Signed by
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Sidney Linden
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Published
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May 18, 1989
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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