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Document
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P-1361
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File #
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P-9600200 and P_9600381
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Institution/HIC
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Liquor Control Board of Ontario
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Summary
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NATURE OF THE APPEALS: This order represents my final order in respect of the outstanding issuesfrom Interim Order P-1268, and the additional issues raised in this appeal. The Liquor Control Board of Ontario (the LCBO) received a request under the Freedom of Information and Protection of Privacy Act (the Act ),for all records relating to the appellant's civil and criminal cases involvingthe LCBO. The appellant is a former employee of the LCBO and was the subject of aninvestigation which resulted in criminal charges being laid. The appellant wasnot convicted, but he was suspended from his job and subsequently terminated. The appellant then filed a civil suit against his former employer, which wassettled in July, 1995. The LCBO identified 81 pages of responsive records and denied access tothem, claiming that they fall within the parameters of section 65(6) of the Act ,and therefore outside the scope of the Act . The appellant appealed this decision, and also claimed thatadditional records should exist. Appeal P-9600200 was opened and Interim OrderP-1268 was issued as a result. In that order, former Assistant Commissioner Tom Mitchinson ordered the LCBOto conduct a further search for responsive records and, in the event thatadditional responsive records were located, to issue a decision with respect toany new records in accordance with the provisions of the Act . Theformer Assistant Commissioner did not address the issue of jurisdiction and thisoffice remained seized of the jurisdictional issue raised by section 65(6). As a result of the LCBO's further search, an additional seven-page record (amemorandum dated October 1, 1991 from "Investigative Services" to "LossPrevention") was located. The LCBO issued its decision that this recordalso fell within the parameters of section 65(6) of the Act . The appellant appealed this decision and continued to claim that additionalrecords should exist. Appeal P-9600381 was opened. This final order willaddress the jurisdictional issue raised in both P-9600200 and P-9600381 as itrelates to the records (81 pages and seven pages) together with the appellant'sclaim that further records still exist. During mediation of this appeal, the LCBO provided the appellant and thisoffice with an index of records and a copy of its records retention schedule. The records at issue in this appeal consist of Records 1-39 (which include theseven-page record located in the additional search), as described and listed inthe index. The appellant identified the following specific additional records which hebelieves should exist: 1.An investigative report dated on or about July or August, 1991, compiledby two named employees of the LCBO in District # 2. 2.Records related to the initiation of the investigation, dated on orabout April, 1991, including the identity of the individual that authorized theinvestigation. 3.Records related to the termination of the appellant's employment onOctober 31, 1991, including the identity of the individual that authorized thetermination. This office sent a Notice of Inquiry to the appellant and the LCBO. Representations were received from the LCBO. The appellant indicated that theinformation he had provided to this office during the course of both appealsconstitutes his representations. DISCUSSION: REASONABLENESS OF SEARCH As stated in Interim Order P-1268, where an appellant provides sufficientdetails about the records which he is seeking and the institution (in this casethe LCBO) indicates that further records do not exist, it is my responsibilityto ensure that the LCBO has made a reasonable search to identify any recordswhich are responsive to the request. The Act does not require the LCBOto prove with absolute certainty that further records do not exist. However, inmy view, in order to properly discharge its obligations under the Act ,the LCBO must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive tothe request. The LCBO states that another search for responsive records was conducted inaccordance with the provisions of Interim Order P-1268. Specifically, the LegalServices, Human Resources, Retail, Corporate Affairs and Loss Prevention andSecurity divisions of the LCBO, all conducted further searches for additionalrecords. One additional seven-page record was located. The LCBO also contacted the OPP at the Noelville detachment and the SudburyDistrict Headquarters to request any and all information pertaining to theappellant. The LCBO states that it was advised by the OPP that its retentionschedule for records, with the exception of officer's memo books, is the currentyear plus two years. The OPP confirmed that, therefore, it did not have anyrecords relating to the appellant. With respect to the officer's memo book, theLCBO was advised that the appellant had been provided with a copy of theofficer's notes. As indicated previously, the LCBO has provided the appellant with an indexof records. The LCBO has also provided the appellant with a copy of amemorandum, dated October 10, 1996, prepared by the LCBO Investigator explaininghis inquiries with the OPP. I have carefully reviewed the representations of the parties. I find thatthe LCBO's search for records responsive to the request was reasonable in thecircumstances of this appeal. RECORDS In reviewing the records, I noted that Record 1 consists of an Authorizationand Direction, letter from the counsel for the LCBO, photocopies of two chequesand a covering letter. Record 2 consists of the duplicate copy of theAuthorization and Direction, a duplicate copy of the letter from the counsel forthe LCBO, copies of the same two cheques (as in Record 1) and a copy of acontract application. I note also that Record 6 is yet another duplicate ofcounsel's letter in Records 1 and 2, that Record 7 is a duplicate of theAuthorization and Direction in Records 1 and 2. Therefore, I will consider theapplication of section 65(6) to all parts of Record 1 and any discussion ofRecord 2 will be limited to the contract application. My findings on Record 1will apply equally to the duplicates in Records 2, 6 and 7. JURISDICTION The remaining issue in this appeal is whether the records fall within thescope of sections 65(6) and (7) of the Act . These provisions read asfollows: (6)Subject to subsection (7), this Act does not apply to recordscollected, prepared, maintained or used by or on behalf of an institution inrelation to any of the following: 1.Proceedings or anticipated proceedings before a court, tribunal orother entity relating to labour relations or to the employment of a person bythe insti
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Legislation
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FIPPA
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29(1)(a)
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65(6)3
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65(7)(2)
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Subject Index
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Signed by
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Mumtaz Jiwan
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Published
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Mar 06, 1997
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Type
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Order – Final
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