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Document
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P-81
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File #
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880117, 880118, 880119, 880120, 881021
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Institution/HIC
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Ministry of Labour
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Summary
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O R D E R These appeals were 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 a record under subsection 24(1) a right to appeal any decision of a head under the Act to the Information and Privacy Commissioner. Further, subsection 57(4) allows a person who is required to pay a fee to ask the Commissioner to review the head's decision to charge a fee or the amount of the fee. The facts of these cases and the procedures employed in making this Interim Order are as follows: 1. On March 13, 1988, the requester wrote to the Ministry of Labour (the "institution") asking for access to, among other things, the following records: a. briefing notes, summary information and case examples of companies/contractors with 25 or more orders issued against them under the Occupational Health and Safety Act during 1986-88 (Appeal Number 880117); b. briefing notes, memos and cases described on prosecutions undertaken and completed case prosecutions during 1986-88 (Appeal Number 880119); c. briefing notes on work refusals or profiles/memos of such refusals and their resolution during 1986-88 (Appeal Number 880120); d. memos and briefing notes relating to significant occupational illness issues arising from inspections during 1986-88 (Appeal Number 880121). In each case, the requester sought "...public interest fee waivers for the reasons already provided". 2. In response to the requests, the institution wrote three letters dated April 7, 1988, one letter dated April 12, 1988 and two letters dated April 22, 1988. The institution denied access to most of the requested records pursuant to several sections of the Act . Other records either did not exist or had previously been provided to the requester. With respect to certain records which the institution was prepared to disclose, the requester was provided with two fees estimates totalling $2,478.36 and $1,514.34 and advised that fee waivers were not proposed. 3. By letter dated April 28, 1988, the requester appealed the head's decisions respecting both the exemptions cited and the fees estimated (Appeal Number 880118). I gave notice of the appeals to the institution on May 19, 1988. 4. The Appeals Officer assigned to these cases attended at the institution on two occasions to review samples of the relevant records. 5. None of these appeals could be settled by way of mediation, and on September 7, 1988 I sent a notice to the parties that I was conducting an inquiry to review the decision of the head in Appeal Number 880117. 6. In accordance with my usual practice, the Notice of Inquiry was accompanied by a report prepared by the Appeals Officer. This report is 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 sections of the Act paraphrased in the report include those exemption sections cited by the head in refusing access to a record or a part thereof. The report indicates that the parties, in making their representations to the Commissioner, need not limit themselves to the questions set out in the report. 7. By letter dated September 20, 1988, I invited the parties to make written representations on the issues identified in the Appeals Officer's Report. 8. Written representations were received from both the appellant and the institution. The institution's representations indicated a change in its original position regarding the basis for exempting the records. The institution also submitted that, although fees were not at issue in Appeal Number 880117, the substantive issues related to that appeal could not be addressed by the institution until the Commissioner issued a decision on the reasonableness of the fees estimated to complete the requests in Appeal Number 880118. 9. At a meeting held to clarify the institution's position, it was learned that the records in Appeal Number 880117 could not be retrieved and reviewed without first performing an identification exercise, the cost of which was estimated in relation to records at issue in Appeal Number 880118. For example, in Appeal Number 880117, the requester asked for briefing notes and case examples of companies or contractors with 25 or more Occupational Health and Safety Orders issued against them. The institution proposed to charge a fee only for the case examples, and not the briefing notes, but argued that until the question of fees for the case examples was decided, they were not obliged to conduct the searches necessary to identify which companies or contractors had 25 or more orders issued against them and could not, therefore, identify which briefing notes fell within the scope of the request. 10. Following the issuance of my Order 50 (Appeal Numbers 880047, 880049, 880050 and 880051), which involved the same requester and institution and outlined the responsibilities of institutions in identifying records, the institution performed the identification exercise referred to in paragraph 9, above, at no cost to the appellant. This allowed the institution to identify the actual, as opposed to the estimated, number of records to which its fees estimate should apply, and I instructed the institution to revise its original fees estimate accordingly. I also instructed the institution to respond to the substantive issues raised in the Appeals Officer's Report with respect to those appeals in which a fees estimate was not originally contemplated. I have since received representations from the institution with respect to Appeal Numbers 880120 and 880121, and I will deal with them in my Final Order in those appeals. These appeals raise a number of matters of general application and, in order to provide guidance to institutions presented with requests for large volumes of records, I have decided to issue this Interim Order. It will address the following issues: A. What are the obligations imposed by the Act when an institution receives a request for records? B. What are the responsibilities of the head when preparing a fees estimate pursuant to subsection 57(2) of the Act ?
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Legislation
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FIPPA
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29(1)(b)
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57(1)
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57(1)(c)
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57(3)
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Section 26
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27(1)
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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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Jul 26, 1989
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Type
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Order – Final
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