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Document
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PO-1852
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File #
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PA-990445-1
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Institution/HIC
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Ministry of the Environment
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Summary
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NATURE OF THE APPEAL: The Ministry of Environment (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to a specified draft report relating to a soil survey which was conducted by the Ministry in 1998. The survey concerned contamination levels in the City of Port Colborne (the City). The requester is a lawyer representing individuals who are involved in litigation with a corporation operating in the City. The requester also asked for any previous drafts of the report, as well as copies of any memoranda, notes and e-mail messages relating to meetings which took place between representatives of the Ministry, the corporation and the City, and correspondence between these parties regarding matters discussed at the meetings. The request letter identified the dates of four such meetings, as well as the names of a number of Ministry employees who were present at some or all of these meetings. After notifying the City and the corporation, the Ministry granted partial access to the responsive records. Access to the remaining records was denied, in whole or in part, pursuant to one or more of the following exemptions contained in the Act : section 13(1) - advice and recommendations; sections 17(1)(a), (b) and (c) - third party information; sections 18(1)(a), (c) and (e) - economic and other interests of the Ministry; section 19 - solicitor-client privilege; and section 21(1) - invasion of privacy. The requester (now the appellant) appealed the Ministry's decision, and also raised the possible application of the "public interest override" in section 23 of the Act . During mediation, the Ministry withdrew the section 18(1)(c) exemption claim, and the appellant confirmed that he is not interested in receiving any records or parts of records that were subject to the section 21(1) exemption claim. Also during mediation, the final version of the soil survey report in question was made public. However, the appellant made it clear that he continued to want copies of all previous draft versions of this report. No draft reports were among the records identified by the Ministry as responsive to the request, despite the fact that drafts were specifically identified in the request letter. On this basis, the appellant maintained that additional responsive records should exist. I sent a Notice of Inquiry to the Ministry, the City and the corporation, and received representations in response from the Ministry and the corporation only. I then sent the Notice, together with the non-confidential portions of both sets of representations to the appellant, who provided representations in reply. RECORDS: There are 40 records at issue in this appeal, as described in the index provided by the Ministry to both the appellant and this Office. The records are number A through V and 1 through 19. Record 17 does not exist and was listed in error by the Ministry. The records consist of e-mail messages (some with attachments), briefing notes, agendas and minutes of meetings, draft meeting minutes, memoranda, facsimiles, overheads, a risk assessment report and a record of verbal transaction. REASONABLENESS OF SEARCH The appellant maintains other responsive records should exist, including previous drafts of the 1998 soil survey report. In appeals involving a claim that further responsive records exist, the issue to be decided is whether the Ministry has conducted a reasonable search for the records, as required by section 24 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, I may order further searches. The Act does not require the Ministry to prove with absolute certainty that further records do not exist. However, in my view, in order to properly discharge its obligations under the Act , the Ministry must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive to the request. Although an appellant will rarely be in a position to indicate precisely which records have not been identified in the Ministry's response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records exist. In response to my request for a summary of the steps taken in responding to the appellant's request, the Ministry provided representations on its searches for records located in three Ministry offices: Niagara District Office, Phytotoxicology Section, and Environmental Assessment and Approvals Branch. Niagara District Office records The Ministry included an affidavit of a Senior Environmental Officer in the Niagara District Office with its representations. This individual's name was mentioned by the appellant in his request letter as one of the individuals who was present at the meetings between the Ministry, the City and the corporation. The Ministry explains that this individual is the most qualified to conduct the search for records because he is responsible for the management of day-to-day issues relating to the corporation and the City and the impact of the soil contamination which is the subject of the survey report. The Senior Environmental Officer swears in his affidavit that he worked on the file involving the corporation, so was aware of the location for responsive records. He points out that he conducted all required searches and forwarded all responsive records to the Ministry's Freedom of Information and Privacy Co-ordinator (the Co-ordinator) for processing. Although not included in the affidavit, the Co-ordinator adds that he was advised by the Senior Environmental Officer that, to the best of his recollection, no responsive records that previously existed were subsequently destroyed. The Co-ordinator also states that he contacted two other employees mentioned in the appellant's request letter. One of these employees maintains that no notes or minutes were taken at the meeting identified by the appellant in his request letter, and the other employee advises that any records he may have had would have been left at the Niagara District Office when he assumed new employment responsibilities at a differ
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Legislation
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FIPPA
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13(2)(l)
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Section 19
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Section 23
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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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Dec 28, 2000
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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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