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Document
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PO-1744
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File #
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PA-990131-1
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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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NATURE OF THE APPEAL: On March 11, 1999 the Ontario Rental Housing Tribunal (the Tribunal) was added as an institution under the Freedom of Information and Protection Act (the Act ) pursuant to O. Reg.104/99. On November 27, 1998, the Ministry of Municipal Affairs and Housing (the Ministry) received a request under the Act for access to records relating to applications made by the requester to the Tribunal in respect of his property, and complaints filed with the Ministry and with the Investigations Unit of the Ministry, for the period between August 18, 1998 and December 4, 1998. The Ministry identified 556 pages of records from the office of the Minister, the Tribunal and the Investigations Unit and granted access to the responsive records. The requester, now the appellant, appealed the Ministry's decision on the basis that additional records exist. The appellant stated that the records disclosed by the Ministry did not include "a single memorandum, office correspondence, interdepartmental correspondence, electronic correspondence (e-mail), minutes of meetings, notes taken from telephone conversations and entries into log books that are kept by the officials of the Ministry." In his appeal, the appellant also included a list of names of people as authors or recipients of such records. During mediation, the Ministry advised our office that since the request had been received prior to the Tribunal being named as an institution under the Act , the Ministry had responded to the request on behalf of both itself and the Tribunal. The Ministry indicated that it would continue to act for both itself and the Tribunal for the purposes of this appeal. Therefore, any reference hereafter to the Ministry will be deemed to include reference to the Tribunal as well. As a result of mediation, the Ministry conducted a second search for additional records in the Tribunal offices, the Investigation Unit and the Minister's office. This search resulted in the location of five additional records which were disclosed to the appellant. The appellant continued to insist that additional records must exist. I sent a Notice of Inquiry to the appellant and the Ministry, informing them that an oral inquiry will be held to determine whether the Ministry had conducted a reasonable search for records which are responsive to the request. A mutually convenient date for the oral inquiry was set. Prior to the date agreed to for the hearing, the appellant advised the Mediator that he would not be able to attend on that date and requested that another date be set. This was repeated on two more occasions when hearing dates were set and the appellant indicated that he would not be available. Finally, the oral hearing was set for September 8, 1999. A Confirmation of Hearing was sent to both parties. The Mediator advised the appellant that if he chose not to be available for the hearing, I would proceed in his absence. The inquiry was conducted via teleconference. The Ministry was represented by its legal counsel. Also present were the Tribunal's Freedom of Information and Privacy Co-ordinator and Senior Counsel. The Executive Assistant (Corporate Resources), Manager of the Investigations Unit and the Manager of Shared Technology were also present. The Ministry provided oral representations. The appellant did not make himself available for the oral hearing. DISCUSSION: Where a requester provides sufficient details about the records which he or she is seeking and the institution indicates that records do not exist, it is my responsibility to ensure that the institution has made a reasonable search to identify all responsive records. The Act does not require the institution to prove with absolute certainty that records do not exist. However, in my view, in order to properly discharge its statutory obligations, the institution must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records. Although an appellant will rarely be in a position to indicate precisely which records have not been identified in an institution's response to a request, an appellant must, nevertheless, provide a reasonable basis for concluding that such records may, in fact, exist. During the oral hearing, the Ministry stated that it was making submissions of behalf of both itself and the Tribunal. The Ministry indicated that it was relying on its letter dated June 18, 1999 addressed to the appellant and this office. The letter of June 18, 1999 was accompanied by a binder which contains copies of records located as a result of the second search and which have been disclosed to the appellant. In this letter, the Ministry describes the particular areas searched, by whom and the results of the searches. As a result of the request, staff of both institutions conducted an initial search and located 556 records which were disclosed, in their entirety, to the appellant. Upon appeal and during mediation, the Ministry conducted a second search and all of the additional records found were disclosed to the appellant in the binder accompanying the Ministry's letter of June 18 th , 1999. The Ministry made the following submissions on its searches for records responsive to the request within the Tribunal and the Ministry: The Tribunal: The FOI Co-ordinator contacted tribunal members and staff and discussed with them the nature of the request and the records being sought. The Vice-chair of the Tribunal supervised the search for records in the Tribunal's Eastern District office. This search included the two application files, and any letters, memoranda, e-mail, minutes of meetings and records of telephone conversations. No records apart from those in the application files were found. The contents of the application files were disclosed to the appellant. The three tribunal members who presided over the application hearings were also contacted as part of the search. Each of them confirmed that they did not have any records responsive to the request. The administrative files in the office were also searched for responsive records and none were found. The Ministry stated that in response to the appeal, a second search was conducted in all the above areas in an attempt to locate additional records. The search resulted in locating three entries in the Vice-Cha
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Legislation
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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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Jan 21, 2000
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Type
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Order
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