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Document
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P-1200
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File #
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P-9500588
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Institution/HIC
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Ontario Criminal Code Review Board
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Summary
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NATURE OF THE APPEAL: The appellant submitted a request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Ontario Criminal Code Review Board (the Board). The request was for any notes, letters and computer storage information gathered and compiled by the five Board members who presided over the appellant's hearing on June 6, 1995. The request included any information pertaining to any investigations carried out into allegations or statements made by or against the appellant. The appellant also sought access to the tape recording of the hearing and requested that, upon receiving responsive records, each of the five Board members provide him with a letter stating that they have no other records and they have no knowledge of any other Board employees having any further records responsive to the request. The Board located records it determined were responsive to the request and granted partial access to them. For those parts not disclosed, the Board claimed the application of the exemptions under sections 21 and 49(b) of the Act (invasion of privacy). The Board advised the appellant that the audio tape recordings of the hearing are not in the Board's custody or control and that this issue is currently the subject of a Judicial Review application filed in relation to Order P-912. The appellant filed an appeal of the Board's decision claiming that further responsive records exist and that the Board's decision does not comply with the provisions of the Act . Specifically, the appellant claims that the Board's decision did not respond to that portion of his request dealing with the personal notes and records of the five Board members and any investigative notes or records pertaining to the allegations made by or against him. The appellant also maintains that the Board has improperly addressed the issue of the audio tape recordings and has failed to provide him with letters from the Board members respecting their knowledge of existing records. During mediation, the Board stated that no responsive records exist regarding the Board members' personal notes or records of the hearing. This office sent a Notice of Inquiry to the Board and to the appellant. Representations were received from both parties. In his representations, the appellant reiterated his position that, regardless of whether the issue of the Board's custody or control of the tape recordings of a hearing was the subject of a Judicial Review application, the Board did not properly fulfill this portion of his request. Accordingly, this office sent a Supplementary Notice of Inquiry to the appellant and the Board. The Supplementary Notice invited both parties to provide their submissions on whether the issue of the Board's custody or control of the tapes in this appeal should be deferred pending the outcome of the Judicial Review application of Order P-912. Supplementary representations on this issue were received from the appellant only. The Board advised this office that it did not object to the issue being placed "on hold". To summarize, the issues I will address in this order are as follows: (1) the Board's response to that portion of the request dealing with letters from the Board members respecting their knowledge of the existence of responsive records; (2) the reasonableness of the Board's search for responsive records; and (3) the manner in which the issue of the appellant's request for access to the tape recordings of his hearing should be dealt with. DISCUSSION: LETTERS FROM THE BOARD MEMBERS One portion of the appellant's request reads as follows: I further request that upon providing the information I have requested herein, or as much of that information as is available, that the five said individuals [the Board members] each provide a letter stating that they have no further information in their possession or control in respect of my request, and that they have no knowledge of any other person employed with the Ontario Criminal Code Review Board having any further information in respect of my request. In its decision letter, the Board did not respond to this portion of the request. In his submissions, the appellant maintains that the Board has failed to comply with this aspect of his request. As is apparent from the nature of the information sought, the appellant is specifically requesting that the Board create responsive records. That is, after the Board has provided the appellant with the other information sought, its members are to provide him with a letter including the information set out above. An individual's right of access to information under the Act relates to information already recorded, whatever its physical form. In the absence of existing recorded information, the Act does not require the creation of a new record. The Legislative intent of the Act does not impose a specific duty on an institution to transcribe oral views, comments or discussions (Order 17). In my view, the Board has no statutory obligation to create the letters from the Board members setting out their knowledge of information responsive to his request. Accordingly, I will not consider this issue further in this order. REASONABLENESS OF SEARCH Where a requester provides sufficient details about the records which he or she is seeking and the Board indicates that such a record does not exist, it is my responsibility to ensure that the Board has made a reasonable search to identify any records which are responsive to the request. The Act does not require the Board to prove with absolute certainty that the requested record does not exist. However, in my view, in order to properly discharge its obligations under the Act , the Board must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive to the request. The Board has submitted an affidavit from its Freedom of Information and Privacy Co-ordinator. The affidavit states that all records responsive to the request found in the appellant's file have been provided to him, with the exception of the severances which were made. The affidavit goes on to state that there are no additional notes or records, subsequent to the appellant's hearing, in the file. Attached to the affidavit is
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Legislation
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FIPPA
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10(1) custody or control
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52(1)
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54(3)
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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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Jun 04, 1996
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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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