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Document
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PO-1968
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File #
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PA-010203-2
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Institution/HIC
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Ontario Human Rights Commission
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Summary
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BACKGROUND: The Ontario College of Art (OCA) made a request to the Ontario Human Rights Commission (OHRC) for approval to implement a special program, i. e. an employment equity program, in accordance with section 13 (now section 14) of the Human Rights Code, R..S.O. 1990, c.H-19 . In 1990, the OCA obtained the requisite approval to implement its program known as the Equity 2000 Plan. NATURE OF THE APPEAL: The OHRC received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for all documents, notes, memoranda, etc. which are or have been in the possession of the OHRC in relation to the Equity 2000 Plan and recommendations of the OCA (also known as the Ontario College of Art and Design) from its outset to the present. The OHRC issued a decision advising that it did not find any records responsive to the request. The requester (now the appellant) appealed this decision because he believes that the records he is seeking must exist. To substantiate his belief that records must exist, the appellant provided this office with a copy of a News Release Communique from the OHRC dated June 26, 1990 entitled "Ontario Human Rights Commission Approves OCA Equity Plan". It states that the OHRC issued an order approving the employment equity program at the OCA known as Equity 2000, and that the order will be in effect for two years. After the first year, the OCA must provide the OHRC with a detailed progress report on both phases of the program. The news release also states that the OHRC invited written submissions through media releases and newspapers advertisements, and received 23 briefs which dealt with a broad range of issues raised by the program and which were considered before the OHRC made its decision. In addition, the appellant stated that he believes there must be a file containing records relating to the OCA because he was personally involved with the briefs and submission process. He submits that written communications should exist between the OCA and the OHRC's Director of Systemic Investigation and others, prior to and subsequent to the issuance of the order. In appeals such as this one, involving the denial of access on the basis that no responsive records exist, the sole issue to be decided is whether the institution has conducted a reasonable search for responsive records, as required by section 24 of the Act . I sent the appellant and the OHRC a Notice of Inquiry at the same time that I sent the Confirmation of Appeal. The Notice of Inquiry identified the facts and issues raised in the appeal. It advised that a Mediator was assigned to the appeal and if the appeal was not resolved by mediation, an oral inquiry would be held to determine whether the Ministry had conducted a reasonable search for records which respond to the request. The Notice of Inquiry also contained the further information provided by the appellant to this office to substantiate his belief that records should exist. During the mediation stage of this appeal, the OHRC located the following records: Equity 2000, A Long Range Plan for Employment Equity OCA - Phase I and Phase II, November 11, 1991 Appendix A: Status of Recommendations of Equity 2000 Report, October 1989 Order - OCA Program - Equity 2000 As the matter did not resolve during the mediation stage of the appeal, an oral inquiry was conducted via teleconference. Present were the appellant, who is a member of the faculty at the OCA, the appellant's solicitor, the OHRC's Registrar, Executive Assistant to the Executive Director, and the Manager of the Mediation and Investigation Branch. Both the appellant and the OHRC provided oral representations. DISCUSSION: REASONABLENESS OF SEARCH As set out above, in appeals involving a denial of access on the basis that no records or no additional responsive records exist, the sole issue to be decided is whether the institution has conducted a reasonable search for responsive records, as required by section 24 of the Act . Where a requester provides sufficient detail about the records he is seeking and the institution indicates that records do not exist, it is my responsibility to ensure that the institution has made a reasonable search to identify any records that are responsive to the request. The Act does not require the institution to prove with absolute certainty that records do not exist. However, in my view, in order to properly discharge its obligations under the Act , the institution 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 REPRESENTATIONS At the inquiry, the appellant submitted additional information to substantiate his belief that the records he is seeking must exist: With respect to correspondence, he submitted that the President of the OCA initiated the request for a Special Program in 1985 or 1986; that Legal Counsel for the OCA submitted representations on behalf of seven clients; that there was considerable communication between the OCA and the OHRC Equity 2000 Committee advising the OCA of the viability of the OCA's plan; that OCA's Legal Counsel would have made a submission regarding the viability of the plan; that there was communication between the OCA and the former Director of the Systemic Unit who had intervenor status regarding an arbitration matter; and that there was communication between the OCA and the OHRC Phase II Committee regarding the arbitration matter. The appellant submits that, in 1990, he contacted the Executive Assistant to the Director in the OHRC's Executive Director's Office to discuss the submissions provided to the OHRC by OCA's legal counsel. He submitted that records ought to exist on the basis that OCA's request for a special program was high profile and subject to significant media attention at the time, including CBC's Fifth Estate. The appellant also submitted that there should be records of media access requests for OCA documents. In providing representations
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Legislation
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Subject Index
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Signed by
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Susan Ostapec
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Published
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Nov 15, 2001
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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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