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Document
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PO-1960
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File #
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PA-010084-2
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Institution/HIC
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Ministry of Natural Resources
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Summary
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NATURE OF THE APPEAL: The Ministry of Natural Resources (the Ministry) received a request from a member of the media for access to records produced or received by a named Ministry official in connection with a subdivision and golf course project on Lake Nipissing near the City of North Bay. The Ministry initially granted only partial access to the records, denying the requester access to the remaining records under the invasion of privacy exemption in section 21(1) of the Act and taking the position that other portions of the records were not responsive to the request. The requester, now the appellant, appealed the Ministry's decision to deny access to the records. As a result of a lengthy, but productive, mediation process, the sole issue remaining in dispute between the parties is whether additional records responsive to the request exist. The appellant takes the position that additional records beyond those identified by the Ministry must exist. The Ministry argues that the searches which it has undertaken for responsive records were reasonable in the circumstances. I initially provided a Notice of Inquiry to the appellant, seeking his submissions in support of his position that additional records beyond those identified by the Ministry should exist. The appellant provided me with representations in response which were then shared with the Ministry, who also submitted representations. I then shared those submissions with the appellant who chose to provide me with reply representations. REASONABLENESS OF SEARCH In appeals where the appellant believes that additional records exist, as is the case in this appeal, the sole issue to be decided is whether the Ministry has conducted a reasonable search for the records as required by section 24(1) of the Act . If I am satisfied that the search carried out was reasonable in the circumstances, the decision of the Ministry will be upheld. If I am not satisfied, further searches may be ordered. The Initial Representations of the Appellant In both his initial and his reply representations to me, the appellant describes in some detail the reasons for his belief that the Ministry's search for responsive records was inadequate. As a result of receiving additional records through other requests made under the Act , the appellant has become aware of a number of meetings, telephone conversations, e-mail messages and other communications involving the named employee which occurred during the time period covered by the request. This individual was the former District Manager of the Ministry's North Bay District and, since May 4, 1998, now serves as the Executive Assistant to the Deputy Minister of Natural Resources. The appellant provided me with a chronological list of dates of meetings, e-mail messages, memoranda, notes and telephone conversations which he believes demonstrate the involvement of the former District Manager in the Ministry's handling of a "sensitive issue" during the period from April 14 to May 8, 1998. The appellant's reconstruction of these events is premised on the information he has received from other sources, including following his examination of records obtained through other requests under the Act. In my view, these submissions lead one to a logical conclusion that additional records are reasonably likely to exist beyond those identified by the Ministry. For this reason, I decided to seek the representations of the Ministry in response to those of the appellant. The Ministry's Submissions The Ministry's submissions rely heavily on the fact that a search of its record-holdings for information in response to another request from this same appellant was undertaken. Indeed, following an appeal to the Commissioner's office which resulted in Order PO-1920, the reasonableness of the Ministry's search for records responsive to that request was upheld. The Ministry advises that as a result of the searches conducted in response to the earlier request, it was able to advise the requester that no records responsive to the present request existed in its North Bay District Office. It argues that because of the extensive searches conducted by its employees at the behest of its North Bay District Office Information Management Supervisor for records responsive to that request, it was not necessary for it to conduct an additional search for records responsive to the present request. In addition to its communications with the North Bay District Office, the Freedom of Information Assistant Co-ordinator responsible for processing this request contacted the former District Manager, requesting that she conduct a search of her record-holdings for the information sought in the request. The Ministry states that: [E]xcept for notebooks which she kept during her tenure as District Manager and upon the assumption of her current position, [the former District Manager] indicated that any records created before May, 1998 would be found in the District files . . . and that she was aware of only two other records which fell into the ambit of the request. The Ministry's submissions go on to describe these two records and the reasons why they are no longer available. It adds that the former District Manager did not keep subject files and there were "no other records other than her notebooks in the period after she joined the Deputy Minister's office." The Ministry responds to the suggestions contained in the appellant's initial submissions as to the reasons why he believes additional records should exist by commenting that: These suggestions are based on his interpretation of extracts from notes and other documents. A discussion of whether or not a record should have been created tends to take on metaphysical dimensions. Such a discussion, while interesting, is not really relevant within the context of this appeal. The Ministry reiterates its reliance on the findings in Order PO-1920 and submits that the applicable standard in cases such as this is whether the searches conducted by the Ministry in attempting to locate responsive records were reasonable. It submits that the searches undertaken in the North Bay District Office for records responsive to that earlier request were found to be reasonable in the decision and that additional searches of its North Bay District Office record
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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Oct 24, 2001
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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