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Document
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P-1069
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File #
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P-9500225 and P-9500339
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Institution/HIC
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Ministry of Community and Social Services
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Summary
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NATURE OF THE APPEALS: The Ministry of Community and Social Services (the Ministry) received two requests under the Freedom of Information and Protection of Privacy Act (the Act ) for access to all information in the requesters' Crown ward files pertaining to a specific period (1968-1969). The two requesters are sisters who are seeking access to their own personal information for the period of their Crown wardship. The Ministry identified certain court orders as responsive to the requests and granted partial access. Access was denied to records, or portions thereof, that contained the personal information of individuals other than the requesters. The Ministry also advised the requesters that the remaining information sought may be found in the Crown ward files maintained by the Children's Aid Society, Niagara (CAS). The requesters appealed the decisions of the Ministry on the basis that additional records should exist. The requesters also claim that the Ministry has control over CAS records and therefore, should be able to allow access to them. Two separate appeal files (P-9500225 and P-9500339) were opened. Since the institution and the issues in each file are the same and in the interests of expediency, this order will dispose of the issues in both P-9500225 and P-9500339. The appellants have confirmed that they are not interested in pursuing access to the severed portions of the records withheld by the Ministry under section 21(1) of the Act . Therefore, the issues that I will address in this order are firstly, whether the search for responsive records conducted by the Ministry was reasonable in the circumstances of these appeals and secondly, whether the Ministry has control over the Crown ward files maintained by the CAS. Notices of Inquiry were provided to the appellants, the Ministry and the CAS. Representations were received from all parties. DISCUSSION: REASONABLENESS OF SEARCH Where a requester provides sufficient details about the records to which he or she is seeking and the Ministry indicates that no such records exist, it is my responsibility to ensure that the Ministry has made a reasonable search to identify any records which are responsive to the request. The Act does not require the Ministry to prove with absolute certainty that the requested record does not exist. However, in my view, to properly discharge its obligations under the Act , the Ministry must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive to the request. In approaching the reasonableness of search issues in appeal, the Commissioner's office has recognized that an appellant is rarely in a position to know that records do, in fact, exist. An appellant is therefore asked to provide his or her reasons for believing that a record should exist. At the same time, the institution is asked to provide details of the search which it has conducted. Upon consideration of the information provided by the parties, a conclusion will be made as to whether or not the search was reasonable in the circumstances of the appeal. The appellants submit that in accordance with the Directory of Records which lists the type of personal information records maintained by provincial ministries and their agencies, the Ministry's Crown ward files should include more than court orders. In particular, the Ministry is required to maintain copies of the medical histories of Crown wards and parents, the social history of the parents and grandparents, placement history, plan and review of care, discharge plans and termination of wardship orders. The appellants have only received copies of court orders. The appellant (P-9500339) states that the Ministry has not provided her with her Crown wardship document. The appellant (P-9500225) points out that the records pertaining to the termination of her wardship in 1971 when custody was awarded to a family member have not been located by the Ministry. The Ministry explains that the Child Welfare Act , in effect at the time that the appellants' records were created, required the court issuing orders in child welfare cases to send copies of such orders to the Ministry. Such orders could relate to temporary care and custody or adjournments, supervision orders, society or Crown wardship orders, payment orders and other judgments affecting the welfare of the child. By way of background, the Ministry submits that at the time that the records were created, the CAS had the rights and responsibilities of legal guardian for the purposes of the child's care, custody and control. The Ministry states that the files maintained by the CAS reflected this role and therefore, were extensive, containing legal documents, family social history, placement history and the social worker case notes. The Ministry acknowledges that the current Directory of Records contains a detailed list of records which may be maintained in Ministry files but submits that the requirements under the previous legislation were different and therefore, the records that the Ministry created and maintained during that time, consisted mostly of court orders. The Ministry states that records of this nature would not have been destroyed. The Ministry explains that at the time that these Crown ward files were created, they were required to be retained for 60 years. In 1987, the retention schedule was revised to 100 years. Therefore, all such files are held in the area Ministry offices until termination of the wardship, at which time the records are microfilmed and retained for 100 years. The Ministry states that all Crown ward files for the time period at issue (1968-69) are on microfilm stored in one location. With its representations, the Ministry has provided copies of two affidavits detailing the searches that were conducted for the records in response to the two requests, the originals of which were provided to this office at the time that the appeals were filed. The Ministry has also provided an affidavit (in respect of each of P-9500225 and P-9500339), sworn by the Manager of Central Services Unit, Management Support Branch (the Manager). The Manager states that upon receipt of each request, a complete physical search of the microfiche records was conducted. The responsive records, with some severances under section 21(1), were disclosed to each appellant. Subsequent to the filing of the appeals, a
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Legislation
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FIPPA
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10(1) custody or control
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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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Nov 30, 1995
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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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