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Document
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P-1259
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File #
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P-9500631
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Institution/HIC
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Ministry of Municipal Affairs and Housing
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Summary
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BACKGROUND: The appellant, an employee of the Ministry of Municipal Affairs and Housing (the Ministry), was the respondent in a harassment complaint made by a co-worker (the co-worker). This complaint was investigated under the government's Workplace Discrimination and Harassment Prevention policy (the WDHP investigation). In the context of the WDHP investigation, the appellant made an informal request that the Ministry restore all of his electronic mail messages (e-mails) sent to and received from the co-worker for the months of July, August and September 1994. Systems staff at the Ministry (Systems) attempted to respond to this informal request after obtaining permission from senior management to restore the e-mails from back-up tapes. Ministry policy requires permission because back-up restoration involves 4-5 hours of senior technical staff time. Systems asked the appellant if he wanted any other employee's e-mails to be restored at the same time, and the appellant indicated that he wanted any e-mails sent to him by the co-worker during this same three-month period. Systems succeeded in restoring the appellant's own "in" and "out" box e-mails for July and September. None of them involved the co-worker. Systems explained that, because back-up tapes are produced weekly, if an e-mail was sent, received and deleted within the week, it would not appear on the back-up tape. Despite many attempts, Systems was unable to restore the appellant's e-mails for August because the back-up tapes for this month were damaged. At this point in time, the situation was as follows: 1. Systems advised the appellant that it might be possible for an outside supplier to restore the August back-up tapes containing his e-mails, but there was no guarantee that restoration was possible. Systems estimated that the cost of this would range from $2,000 to over $10,000. Systems asked the appellant to indicate if he wished them to pursue this option. Who would pay for these costs was not resolved. 2. The Ministry felt that the request to restore the co-worker's "out" box e-mails raised privacy issues under the Freedom of Information and Protection of Privacy Act (the Act ), and that the appellant would have to make a formal request. NATURE OF THE APPEAL: The appellant submitted the following request under the Act . I am formally requesting the restoration of the E-mail correspondence from July to September 1994 between myself and [the co-worker]. More specifically, I want access to E-mail messages that [the co-worker] had forwarded to me in July and August of 1994 that are resident in her E-mail "out box". The request letter also referred to the unresolved cost issue concerning his August e-mails. The Ministry responded by providing the appellant with a fee estimate of $7,412.36 for processing the request. The Ministry told the appellant that this estimate was based on information provided to him by Systems for the restoration of the back-up tapes which would contain any of his August e-mails. The appellant was asked to provide written acceptance of this fee estimate, and a deposit of 50% before the Ministry would proceed. The appellant wrote to the Ministry requesting a fee waiver. In this letter the appellant also complained that the Ministry had not responded to the portion of his request relating to the co-worker's e-mails for July through September. It seems that the Ministry did not respond to appellant's letter. The appellant provided this office with a copy of an e-mail which he had sent to the Ministry's Freedom of Information and Privacy Co-ordinator (the Co-ordinator). This e-mail purportedly summarizes a conversation concerning the appellant's letter. Assuming this e-mail is accurate, the Ministry declined the request for a fee waiver, and advised the appellant that no decision would be made regarding access to e-mails retrieved from the co-worker's "out" box until their contents had been reviewed under the Act . The appellant appealed the Ministry's fee estimate and its refusal to waive the fee. Because the appellant had already received his e-mails for July and September, he withdrew this portion of his request during mediation. While this appeal was in process, the WDHP investigation was completed. In the context of the WDHP investigation, the appellant was provided with a transcript of all e-mails retrieved from the co-workers "in" and "out" boxes for the months of July, August and September 1994. I subsequently confirmed this with Ministry staff in the context of my inquiry. According to the Ministry, restoration of the co-worker's August e-mails was possible because they had been backed-up from a different file server than the appellant's e-mails. It might appear that by providing the appellant will full access to all e-mail exchanges between himself and the co-worker from both her "in" and "out" boxes, that the appellant's request has been addressed, albeit through the WDHP process and not in response to his request under the Act . However, after reviewing the co-workers e-mails, the appellant continues to feel that some critical e-mails exchanged by him and the co-worker are missing, and he confirmed that he wished to proceed with this appeal. In my view, an argument could be made that the Ministry made all reasonable efforts to locate responsive records, and that the information the appellant is seeking access to is not a "record", as defined in section 2(1) of the Act , as it is not "capable of being produced from a machine readable record . . . by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution" (emphasis added). However, the Ministry has not made this argument and decided to process the request under the Act . Accordingly, as a result of various activities which took place during the course of this appeal, the only remaining issues to be addressed in this order are the appellant's appeal of the fee estimate, and the Ministry's denial of a fee waiver for the costs of restoring the August back-up tapes including his e-mails. DISCUSSION: NATURE OF THE DECISION The Ministry issued its fee estimate before proceeding with the request. The fee estimate did not include an "interim access decision" indicating whether the records were likely t
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Legislation
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FIPPA
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57(1)
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57(1)(d)
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57(4)
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Sep 11, 1996
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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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