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Document
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P-553
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File #
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P-9200755
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Institution/HIC
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Ministry of Finance
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Summary
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ORDER BACKGROUND: The Ministry of Finance (formerly the Ministry of Revenue) (the Ministry), received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for information on (1) the number of companies, firms or individuals that have given some form of security for payment of tobacco tax, (2) the dollar amount of any such security given and (3) the number of companies, firms or individuals which pay tax on the basis of tobacco sales rather than purchases. The requester stated that she was not asking for the specific identities of any of these business entities. In its decision letter, the Ministry responded that no records exist with respect to parts 1 and 3 of the request. With respect to part 2 of the request, the Ministry denied access to the information based on the exemption contained in section 17(2) of the Act . The requester appealed both the denial of access and the assertion that no records exist which are responsive to parts 1 and 3 of the request. Mediation was not successful and notice that an inquiry was being conducted was sent to the appellant and to the Ministry. Representations were received from both parties. ISSUES: The issues in this appeal are: A. Whether the Ministry has in its custody records that are responsive to parts 1 and 3 of the request. B. Whether the Ministry's decision letter complies with the requirements of section 29(1)(b) of the Act . C. Whether the mandatory exemption contained in section 17(2) of the Act applies to the records that are responsive to part 2 of the request. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the Ministry has in its custody records that are responsive to parts 1 and 3 of the request. Part 1 of the appellant's request reads as follows: From May 1, 1991 to May 1, 1992 how many companies, firms or individuals have given a bond, letter of credit or other form of security to the Ontario Ministry of Revenue under the Tobacco Tax Act, as security for payment of tobacco tax, in [the categories of wholesalers, manufacturers and exporters]. In its decision letter, the Ministry explains the absence of records that would be responsive to this part of the request in the following fashion: [This information] is not entered in any statistical way on our records. Other records may contain information on whether these companies are wholesalers, manufacturers and/or exporters. There is no record which combines the two kinds of information, for example, that X is a wholesaler and that the Ministry has asked X for a letter of credit. The appellant, on the other hand, submits that the records that are responsive to part 2 of the request (where she seeks the total dollar value of any such security given) must necessarily include the information that she is seeking under the first part of her request. Part 3 of the appellant's request is worded as follows: As of May 1, 1992, how many companies, firms or individuals are paying tobacco tax to the Ontario Ministry of Revenue based upon tobacco sales , instead of the previous practice of paying this tax on tobacco purchases ? In its decision letter, the Ministry supports its position that there are no records responsive to this portion of the request in the following manner: [T]ax returns would show whether an individual pays tax on sales or purchases, but the Ministry has no records which analyze or count the two categories of taxpayers. This analysis has simply never been formally written down ... The appellant once again submits that the records which are responsive to part 2 should also respond to part 3. The Act does not directly address the fact situation which has arisen in the present appeal. On this basis, the issue of whether the Ministry has responded appropriately to the appellant's request can only be determined by considering the relevant provisions of the Act in conjunction with previous orders issued by the Commissioner's office. In Order 50, former Commissioner Sidney B. Linden addressed the obligations of institutions when processing access requests where the raw data exists which would respond to the request but no record exists in the exact format requested. In that order, he addressed the issue in the following fashion: ... [W]hen an institution receives a request for information which exists in some recorded format within the institution, but not in the format asked for by the requester, what duty is imposed on the institution? ... In cases where a request is for information that currently exists, either in whole or in part, in a recorded format different from the format asked for by the requester, in my view, section 24 of the Act imposes a responsibility on the institution to identify and advise the requester of the existence of these related records. It is then up to the requester to decide whether or not to obtain these related records and sort through and organize the information into the originally desired format ... ... The Act requires the institution to provide the requester with access to all relevant records, however, in most cases, the Act does not go further and require an institution to conduct searches through existing records, collecting information which responds to a request, and then creating an entirely new record in the requested format. In other words, the Act gives requesters a right (subject to the exemptions contained in the Act ) to the "raw material" which would answer all or part of a request, but, ... the institution is not required to organize this information into a particular format before disclosing it to the requester. I agree with Commissioner Linden's comments and adopt them for the purposes of this appeal. Following my review of the records, I have formed the conclusion that the "raw material" to answer the appellant's request is, for the most part, available. The appellant is correct in her assertion that the records to which the appellant was denied access under section 17(2) are also responsive to part 1 of her request (although the information is not broken down by various categories) and partially to part 3 as well. Therefore, pursuant to section 24 of the Act , the Ministry had an obligation to advise the appellant that the information which she wa
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Legislation
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FIPPA
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17(2)
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24(1)
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29(1)(b)
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Subject Index
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Signed by
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Irwin Glasberg
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Published
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Oct 14, 1993
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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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