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P-1417

Document		P-1417


File #		P_9600372


Institution/HIC		Ontario Human Rights Commission


Summary		NATURE OF THE APPEAL: The Ontario Human Rights Commission (the OHRC) received a request under the Freedom of Information and Protection of Privacy Act (the Act ). The request was for access to records containing "a listing of all financial expenses incurred by the Commission" with respect to its investigation of a complaint of discrimination, as well as the subsequent Board of Inquiry hearing and the Ontario Court (Divisional Court) proceeding. The OHRC located records responsive to that portion of the request relating to the Board of Inquiry proceeding and denied access to them, in their entirety, claiming the application of the following exemption contained in the Act : solicitor-client privilege - section 19 The OHRC further advised the requester that it had no records relating to the expenses which it incurred in investigating the complaint. The requester, now the appellant, appealed this decision on the basis that further records should exist and that the records identified as responsive to the request are not subject to the exemption in section 19. During the mediation of the appeal, the appellant further clarified and narrowed the scope of his request. The OHRC disclosed to him additional information regarding: 1. The salary ranges of human rights officers at the time the complaint was being investigated. 2. A list of the fees and disbursements which it incurred at the Board of Inquiry and Divisional Court proceeding. 3. A computer printout describing in greater detail some of the disbursements paid in the these proceedings. 4. A further explanation of one of the items listed in the printout. The OHRC also advised the appellant that records relating to other disbursement items incurred in November 1992 are in the custody and control of the Ministry of Citizenship (the Ministry) and that a request for this information should be directed to the Ministry. The appellant maintains that records relating to the November 1992 disbursement should exist and that section 19 does not apply to the legal accounts which have been identified by the OHRC as the records which are responsive to his request. As further mediation was not possible, a Notice of Inquiry was provided to the appellant and the OHRC. Representations were received from both parties. PRELIMINARY ISSUE: TRANSFER OF THE REQUEST In its letter to the appellant dated February 24, 1997, the OHRC advised him that records relating to a travel claim made in November 1992 by counsel, which forms part of the requested information, are in the custody or control of the Ministry. As noted above, it further advised the appellant to make a separate request for this information to the Ministry. The OHRC indicates that, following consultation with the Ministry's Freedom of Information and Protection of Privacy Co-ordinator, it decided not to transfer that part of the request to the Ministry. Rather, it chose to advise the requester to make a further request to the Ministry for this information. Section 25 of the Act describes the obligations of an institution when it identifies records which are in the custody or control of another institution. Section 25(1) states: Where an institution receives a request for access to a record that the institution does not have in its custody or under its control, the head shall make all necessary inquiries to determine whether another institution has custody or control of the record, and where the head determines that another institution has custody or control of the record, the head shall within fifteen days after the request is received, (a) forward the request to the other institutions; and (b) give written notice to the person who made the request that it has been forwarded to the other institution. In my view, after making the determination that records responsive to part of the request were in the custody or in the control of the Ministry, section 25(1) requires that the OHRC forward that portion of the request to the Ministry and advise the appellant that it has done so. In this case, however, the OHRC simply asked the appellant to make a separate request of the Ministry. In Order P-1400, Inquiry Officer John Higgins determined that the Commissioner and his delegates have an implied power under section 54(3) of the Act to order an institution to forward a request to another institution. I agree, and find that I have a similar authority to order the OHRC to transfer a portion of a request to another institution. Therefore, in accordance with the requirements of section 25(1), I order the OHRC to transfer that part of the request involving records relating to the November 1992 travel expense claim to the Ministry and to give written notice to the appellant that it has done so. The transfer to the Ministry and notification to the appellant is to be made within 15 days of the date of this order and without recourse to a time extension. DISCUSSION: REASONABLENESS OF SEARCH Where a requester provides sufficient details about the records which he is seeking and the OHRC indicates that further records do not exist, it is my responsibility to ensure that the OHRC has made a reasonable search to identify any records which are responsive to the request. The Act does not require the OHRC 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 OHRC 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 appellant submitted extensive representations. However, for the most part, they detail a series of alleged discrepancies between the expense information submitted by counsel and the progress of the human rights complaint which was the subject of the OHRC's investigation and the subsequent Board of Inquiry and the Divisional Court proceedings. Little of this information is of assistance to me in determining whether the OHRC's search for responsive records was reasonable. The OHRC's representations include affidavits sworn by its former Freedom of Information and Protection of Privacy Co-ordinator (the Co-ordinator) and a Legal Assistant with its Legal Services Branch. Each of these affidavits describe in detail the nature and extent of the searches which were undertaken for records responsive to the appellant's request. In addition, the Co-ordinator has explained the efforts which he made to clarify the scope of the appeal and to locate a paper copy of the November 1992 travel claim. I have reviewed the submissions of the parties with respect to this issue and find that the OHRC's efforts to identify and locate records responsive to the appellant's request were reasonable in the circumstances. Accordingly, I dismiss this portion of the appeal. SOLICITOR-CLIENT PRIVILEGE The OHRC identified ten pages of records, comprising legal accounts rendered to it by outside counsel, as responsive to the appellant's request. During the mediation phase of the appeal, the appellant agreed to narrow and limit the scope of his request in several ways. However, by letter dated January 9, 1997, (which was likely sent in March 1997) responding to an OHRC letter dated February 24, 1997, the appellant advised the OHRC because he felt there still existed some confusion on the part of the OHRC as to the info


Legislation		FIPPA 25(1) 54(3) Section 19


Subject Index		legal fees


Signed by		Donald Hale


Published		Jun 25, 1997


Type		Order


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