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Document
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P-1532
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File #
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P-9700260
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Institution/HIC
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Ministry of the Environment This is my final
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Summary
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order to Interim Order P-1525, made pursuant to the Freedom of Information and Protection of Privacy Act (the Act ). BACKGROUND AND NATURE OF THE APPEAL: The Ministry of the Environment (the Ministry) received a request for access to records relating to a specific waste disposal site in the City of Kingston including notes, journal entries and records of conversations documented by three named Ministry employees. The Ministry granted access to the contents of the Kingston Region's approval file but indicated that there was a 1985 file which they had not been able to locate. The Ministry granted partial access to the remaining records. The Ministry denied access to the handwritten notes of two of the three named employees (the environmental officers) pursuant to the exemption provided by section 14(1). The requester appealed the denial of access. The appellant represents the City of Kingston which is being charged by the Ministry for allegedly contaminating the environment through the waste disposal site. During mediation, the Ministry explained that it did not have the handwritten notes of the third employee (the District Manager) because he relied on the notes of the other two employees and did not have occasion to take notes. Therefore, no other handwritten notes existed. In response to the Notice of Inquiry provided by this office to the parties, the appellant submitted photocopies of handwritten notes, dated February 26, 1997, taken by the District Manager and argued that therefore, such records must exist. The reasonableness of the Ministry's search for responsive records thus became an issue in the appeal and the parties were asked to comment. Representations were received from the Ministry which indicated that it was no longer relying on the section 14(1) exemption to deny access to the handwritten records of the environmental officers and that it had disclosed these records directly to the appellant. Accordingly, these records were no longer at issue. Included in the Ministry's submissions on the reasonableness of its search, was a memorandum of explanation from the District Manager. The District Manager stated that he maintains "a personal Daily Journal of meetings and telephone conversations." He stated that notes are entered every evening at home and that he considers these entries to be "personal material protected from public access even though they do record daytime workplace-related, as well as personal activities." The Ministry submitted that it had never seen this journal and that it did not have access to these notes which are maintained at the District Manager's home. This raised the issue of whether the Ministry has custody and control over these notes. In the interests of expediency and to effect an opportunity to all the parties to make submissions on this issue, I decided to address the reasonableness of the Ministry's search for records in an interim order (Order P-1525) and to address the issue of whether the Ministry has custody or control over the journal entries made by the District Manager in this final order. Representations were received from the appellant, the Ministry and the District Manager. DISCUSSION: CUSTODY OR CONTROL Section 10(1) of the Act states: Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless the record or the part of the record falls within one of the exemptions under section 12 to 22. In Order 120, former Commissioner Sidney B. Linden stated that the terms "custody" and "control" should be given a broad interpretation in order to give effect to the purposes and principles of the Act . In that order, he lists a number of factors pertinent to the creation, maintenance and use of records to be considered when determining the issue of "custody" and "control" of the records: 1. Was the record created by an officer or employee of the institution? 2. What use did the creator intend to make of the record? 3. Does the institution have possession of the record, either because it has been voluntarily provided by the creator or pursuant to a mandatory statutory or employment requirement? 4. If the institution does not have possession of the record, is it being held by an officer or employee for the purpose of his or her duties as an officer or employee? 5. Does the institution have a right to possession of the record? 6. Does the content of the record relate to the institution's mandate and functions? 7. Does the institution have the authority to regulate the record's use? 8. To what extent has the record been relied upon by the institution? 9. How closely is the record integrated with other records held by the institution? 10. Does the institution have the authority to dispose of the record? The appellant submits that the creator of the record is an employee and that the record was created to document his work-related activity. Additionally, the appellant submits that if the record contains any information related to the request, then the record is responsive to the request. The Ministry acknowledges that the creator is an employee of the Ministry. The Ministry states that the record was created by the District Manager for personal use and that to the best of the Ministry's knowledge, it has not relied upon the record for Ministry use. The Ministry states that the record is not in its possession and that it has never seen the record and is unaware of its contents. The Ministry points out that there is no requirement for such records to be held at an employee's home. On the cont
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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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Mumtaz Jiwan
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Published
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Feb 20, 1998
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Type
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Order – Final
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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