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Document
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P-1416
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File #
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P_9700021
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Institution/HIC
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Ministry of the Attorney General On June 12, 1997, the undersigned was appointed Inquiry Officer and receiveda delegation of the power and duty to conduct inquiries under the provincial Freedom of Information and Protection of Privacy Act and the Munici
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Summary
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NATURE OF THE APPEAL: The Ministry of the Attorney General (the Ministry) received a request underthe Freedom of Information and Protection of Privacy Act (the Act )for a copy of the tape of a Small Claims Court trial held in Kitchener onNovember 6, 1996. The Ministry responded by advising the requester that court records are notin the custody or under the control of the Ministry and, therefore, are notsubject to the provisions of the Act . The Ministry further advised therequester that court tapes and transcripts can be obtained by making a requestto the Court Reporter's Office in the jurisdiction where the proceedings tookplace, and provided him with the address and telephone number of that office. The requester (now the appellant) appealed this decision to theCommissioner's office. This office sent a Notice of Inquiry to the Ministry andthe 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)(a) 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, the record or the part of the record falls within one of the exemptionsunder sections 12 to 22. It is clear from the wording of section 10(1)(a) that in order to be subjectto an access request under the Act , a record need only be under thecustody or the control of an institution. In Order P-994, Inquiry Officer Laurel Cropley considered whether an "information"(a document used 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. Inquiry Officer Cropley also considered what records may be said to fallwithin a court file in Order P-995. That order dealt with a request for "evidence"used against an appellant in a prosecution under the Provincial Offences 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 . [emphasis added] The reasoning in Orders P-994 and P-995 was adopted by former InquiryOfficer Anita Fineberg in Order P-1397, which involved a request for the taperecording of the testimony and evidence from a trial. In Order P-1397, theInquiry Officer found that the tape of the trial testimony formed part of thecourt records and, therefore, was not in the custody or under the control of theMinistry. I adopt the principles enunciated in Orders P-994, P-995 and P-1397for the purposes of this appeal. The Ministry in this appeal is the sameinstitution whose decisions were under appeal in Orders P-994, P-995 and P-1397. On the basis of the above principles, the determination of the issues inthis appeal turns on whether the record at issue is a record which relates to acourt action and which is in a court file. The Ministry refers to Order P-994 in its representations and submits thatthe record at issue is the result of a Small Claims Court proceeding in whichthe requester/appellant was a participant. Therefore, according to theMinistry, it is a record which relates to a court action. The Ministry statesthat the court proceedings, including the tape, would then be kept in a courtfile. There is no intention that the record be used by the Ministry. Therecord relates solely to the court proceedings for which it was created and itdoes not, otherwise, relate to the Ministry's mandate or function. Finally, theMinistry submits that the use of court records is dictated by the judiciary, notthe Ministry. Accordingly, it is the Ministry's position that the tape is acourt record which is located in the official court file and, as such, is notsubject to the Act . In his representations, the appellant makes a number of arguments whichcentre on the question of the possession, storage and disposal of the tape. Inits representations, the Ministry acknowledges that it has possession of therecord but only "insofar as [i
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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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Marianne Miller
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Published
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Jun 25, 1997
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Type
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Order
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