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Document
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P-1397
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File #
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P_9700063
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Institution/HIC
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Ministry of the Attorney General
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection ofPrivacy Act (the Act ). The Ministry of the Attorney General (theMinistry) received a request for a copy of the tape recording of the testimonyand evidence from a trial which took place on March 3, 1994 in a namedjurisdiction. The appellant indicated that he was involved in the trial whichwas held pursuant to the Dog Owner's Liability Act . The Ministry responded to the appellant by advising him that court recordsare not in the custody or under the control of the Ministry and, therefore, arenot subject to the provisions of the Act . The Ministry further advisedthe appellant that court tapes and transcripts can be obtained by making arequest to the Court Reporter's Office in the jurisdiction where the proceedingstook place, and provided him with the address and telephone number of thatoffice. The appellant appealed the Ministry's decision. A Notice of Inquiry was provided to the Ministry and the appellant. Representations were received from both parties. DISCUSSION: CUSTODY OR CONTROL The sole issue in this appeal is whether the Ministry has custody or controlof the tape. Section 10(1) of the Act states: Every person has a right of access to a record or a part of a record in thecustody or under the control of an institution unless, (a)the record or the part of the record falls within one of theexemptions under sections 12 to 22; or (b)the head is of the opinion on reasonable grounds that the request foraccess is frivolous or vexatious. It is clear from the wording of section 10(1) that in order to be subject toan access request under the Act , a record need only be under the custody or the control of an institution. In Order P-994, Inquiry Officer Laurel Cropley considered an argument by theMinistry to the effect that a copy of an "information" (a documentused to initiate a criminal prosecution) in a court file was a "courtrecord", and therefore fell outside the scope of the Act . TheInquiry Officer made the following findings which, in my opinion, are equallyapplicable to the facts in this appeal: (1)the Act does not define a class of records called "courtrecords", nor are records in this category expressly excluded from the Act by any of its provisions; (2)the question of whether a so-called "court record" comeswithin the scope of the Act must therefore be determined based on thegeneral principles enunciated in the Act , and in particular, theprinciple set out in section 10(1) that a record must be in the custody or under the control of an institution to fall within thescope of the Act ; (3)courts are not "institutions" under the Act , and,based on the constitutional separation of the judiciary from the other branchesof government, courts are not part of any Ministry; (4)by virtue of the Courts of Justice Act and the common law,courts have a right to supervise and protect their own records (i.e. recordsthat are directly related to a court's adjudicative function); (5)records of the type at issue in Order P-994 (an "information")found within a court file are in the possession of the Ministry, but it is onlybare possession, and they are not under the Ministry's control; (6)based on Order P-239, "bare possession" does not amount tocustody for the purposes of the Act ; rather, there must be "someright to deal with the records ..."; (7)as a result of points (5) and (6), neither custody nor control wereestablished for "informations" found in court files, and they falloutside the scope of the Act ; (8)copies of such records which exist independently of a "court file"may be within the custody or control of an institution and, in that event, wouldbe subject to the Act ; and (9)all of the above findings apply as well to records held by Justices ofthe Peace. The Inquiry Officer again had occasion to consider what records may be saidto fall within a court file in Order P-995, this time dealing with a request for"evidence" used against an appellant in a prosecution under the ProvincialOffences Act . She stated: Similar to my findings in Order P-994, I find that evidence produced attrial, whether in the nature of documentary exhibits or by way of recordedoral testimony , is clearly the type of information which would fallwithin the scope of documents which would properly be contained in a court filerelated to an action. In accordance with my reasons in Order P-994, therefore,I find that the requested records, to the extent that they exist in the courtfile, are not in the custody or under the control of the Ministry, and aretherefore not subject to the Act . [my emphasis] I agree with the conclusions reached by the Inquiry Officer in Orders P-994and P-995 and adopt them for the purposes of this appeal. I note that theMinistry in this appeal is the same institution whose decisions were underappeal in those orders. The submissions of the Ministry, in this case, are thesame as those considered in great detail by Inquiry Officer Cropley in theseprevious orders to reach the conclusions set out above. On the basis of the above principles, the determination of the issues inthis appeal turns on whether the records at issue are records which relate to acourt action and which are in a court file. The Ministry submits that the appellant appeared in court before a Justiceof the Peace for the purposes of a trial. The record at issue, the tape,relates to this action in that it is a recording of the oral testimony presentedat the trial. The court proceedings, including the tape of the oral evidence,would then be kept in a court file. There was no intention that the record beused by the Ministry. The record relates solely to the court proceedings forwhich it was created and it does not, otherwise, relate to the Ministry'smandate or function. Finally, the Ministry submits that the use of courtrecords is dictated by the judiciary, not the Ministry. Accordingly, it is theMinistry's position that the tape is a court record which is located in theofficial court file and, as such, is not subject to the Act . In his representations, the appellant has provided me with several reasonswhy he requires a copy of the tape. However, he does not provide submissions onthe issue of whether such tapes are in the custody or control of the Ministry. Having reviewed all of the representations, it is my view that the tape ofthe trial testimony forms part of the court records. Accordingly, I find thatthe tape is not in the custody or under the control of
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Legislation
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FIPPA
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10(1) custody or control
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Subject Index
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Signed by
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Anita Fineberg
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Published
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May 23, 1997
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Type
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Order
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