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Document
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PO-1981
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File #
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PA-010255-2
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Institution/HIC
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Ontario Human Rights Commission
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Summary
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BACKGROUND AND NATURE OF THE APPEAL: Prior to 1991, the Ontario Human Rights Commission (the OHRC) had a policy whereby an organization could apply to the OHRC to have a particular program declared a "special program" for the purposes of section 14 of the Human Rights Code, R.S.O. 1990, c.H-19 (the Code ). The OHRC subsequently amended this policy, eliminating the application process as a means to obtain a "special program" designation. The issue of whether a particular program meets the criteria of a "special program" is now determined by the OHRC's Board of Inquiry in the course of a complaint. The OHRC received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to information relating to "special programs" as provided for under section 14 of the Code . The appellant subsequently filed a new request, expanding the scope of what she was seeking. In particular, she requested access to: all reports, correspondence, memoranda, and other documents regarding "special programs" (as provided in section 14 of the Human Rights Code ), including any policy paper regarding special programs and any other opinion and/or approval by the Human Rights Commission in respect of whether a program satisfies or fails to satisfy the requirements of a special program. After filing her revised request, the OHRC responded to the appellant's original request, advising her that, aside from its Guidelines on Special Programs, the information which she was requesting was not "tracked" by the OHRC. A copy of the Guidelines was provided to the appellant. The appellant appealed to this office claiming that she did not receive a proper decision letter as required under the Act . That appeal (PA-010255-1) was resolved upon the issuance of a decision letter by the OHRC. In its decision letter dated August 17, 2001, the OHRC stated that, aside from the Guidelines on Special Programs , which were previously provided to the appellant, it has no other records regarding the requirements of a "special program". The OHRC cited in its decision the wording of the appellant's original request, as opposed to the wording of her revised expanded request. The appellant is appealing the decision of the OHRC as she believes that additional records responsive to her amended request exist. A Notice of Inquiry was provided to the appellant and the OHRC outlining the facts and issues in this appeal. The parties were advised that the sole issue to be determined in this appeal is whether the OHRC conducted a reasonable search for records responsive to the appellant's request. Based on the procedures established by this office, the OHRC was advised that all individuals who conducted searches in this case should be available for the oral inquiry. Present at the Inquiry were the appellant and the Registrar of the OHRC. DISCUSSION: REASONABLENESS OF SEARCH: Where a requester provides sufficient detail about the records which she 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. Although an appellant will rarely be in a position to indicate precisely which records have not been identified in the OHRC's response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records may, in fact, exist. The appellant submits that, in view of the OHRC's previous policy, documents such as correspondence, opinions, and/or orders relating to specific applications for "special program" designations must exist. Further, the appellant maintains that documentation must exist in relation to the OHRC's decision to change its policy with respect to "special programs". The appellant also referred to the fact that the OHRC's Guidelines on Special Programs was revised in 1997. She maintains that documents should exist relating to that revision. At the Inquiry, I provided the parties with a copy of Order PO-1968. That order relates to an application to the OHRC by the Ontario College of Art (the OCA) for approval to implement a "special program" in accordance with section 14 (then section 13) of the Code. In that case, the OCA made a request under the Act for information relating to its application. The OHRC issued a decision advising the OCA that records responsive to its request did not exist. During the course of mediation in that appeal, the OHRC conducted further searches and located two reports and on
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Legislation
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Subject Index
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Signed by
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Andrea Schwartz
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Published
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Dec 21, 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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