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Document
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PO-1846-F
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File #
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PA-990434-1
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Institution/HIC
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Ontario Hydro
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Summary
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NATURE OF THE APPEAL: The Electricity Act, 1998 implemented a restructuring of Ontario Hydro, effective April 1, 1999. At the same time, Ontario Hydro ceased to be an institution covered by the Freedom of Information and Protection of Privacy Act (the Act ). Some, but not all, of the new corporate bodies created as part of the restructuring exercise were added by regulation to the list of institutions covered by the Act . Ontario Hydro Services Company (OHSC) was not one of the new organizations designated as an institution. However, by means of a Transfer Order made by the Lieutenant Governor in Council under the Electricity Act, 1998 , OHSC assumed responsibility for certain requests made under the Act that were received by Ontario Hydro prior to April 1, 1999 and unresolved as of that date (see: Order PO-1730). On February 23, 1999, the appellant submitted a request under the Act to Ontario Hydro for all records pertaining to Ontario Hydro's exemption from the Act . Ontario Hydro initially responded that it continued to be covered by the Act and therefore no records existed in response to the request. The appellant appealed Ontario Hydro's interpretation of the request contending that the request included records relating to both Ontario Hydro and its successor companies. Appeal PA-990156-1 was opened which resulted in Order PO-1730. In Order PO-1730, Assistant Commissioner Tom Mitchinson found that records relating to the exclusion of Ontario Hydro's successor companies from the jurisdiction of the Act were reasonably related to the request. Consequently, the Assistant Commissioner ordered OHSC, on behalf of Ontario Hydro, to provide the appellant with a revised written decision respecting access to the records responsive to the request, as clarified, in accordance with sections 26 and 29 of the Act . On behalf of Ontario Hydro, OHSC issued a decision in response to the appellant's original request. OHSC located three responsive records and granted full access to Record 3, a briefing note. OHSC denied access to Record 1 and part of Record 2 on the basis of section 19 (solicitor-client privilege) of the Act . The decision letter stated that the remaining part of Record 2 was not responsive to the request. The appellant appealed the denial of access, and contends that additional records exist. During mediation, the Mediator reviewed the portion of Record 2 that the institution considered not responsive to the request, and advised the appellant that she concurred with its position. As a result, the appellant agreed to eliminate the non-responsive portion of Record 2 from the scope of the appeal. On May 1, 2000, OHSC's name was changed to Hydro One, Inc. For the purpose of this appeal, all references to actions taken by OHSC or Hydro One, Inc. shall be to Ontario Hydro. I sent a Notice of Inquiry setting out the issues in the appeal to Ontario Hydro, initially. The appellant submitted a similar request to the Ministry of Energy, Science and Technology (the Ministry). The Ministry issued a decision which the appellant also appealed and Appeal PA-990433-1 was opened. One record at issue in the current appeal (Record 1), is the same as Record 12 in Appeal PA-990433-1. For the sake of consistency, I also sent Ontario Hydro a copy of the Notice of Inquiry for Appeal PA-990433-1 and provided it with an opportunity to address the issues arising in that appeal with respect to Record 12 (Record 1 in the current appeal). I received Ontario Hydro's representations on the issues in this appeal, which included combined representations on Record 1 and Record 12 in Appeal PA-990433-1. I then sent the appellant the non-confidential portions of Ontario Hydro's representations along with a copy of the Notice of Inquiry that was sent to Ontario Hydro. The appellant did not submit representations in response. RECORDS: The records at issue are as follows: Record 1: A letter from Legal Affairs, Ontario Hydro to Legal Affairs, Ministry of Energy Science and Technology; and Record 2: A letter between Ontario Hydro and the Ministry. Only the last bullet point under Item 1 on page 2 of this document is at issue. DISCUSSION: REASONABLENESS OF SEARCH Where a requester provides sufficient detail about the records which he is seeking and Ontario Hydro indicates that further records do not exist, it is my responsibility to ensure that Ontario Hydro has made a reasonable search to identify any records which are responsive to the request. The Act does not require Ontario Hydro 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 , Ontario Hydro 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 Ontario Hydro's response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records may, in fact, exist. The appellant refers to Order PO-1730 in which Ontario Hydro was ordered to issue a decision addressing records relating to the exclusion of Ontario Hydro's successor companies from the jurisdiction of the Act . The appellant contends that with a matter of this significance, there must be more than three records in response to the request, including internally generated documents as well as those which were received as a result of consultation and/or communication with other government bodies. Ontario Hydro responded to this issue as follows: The fact that the successor companies to Ontario Hydro would not be subject to the Act arose from the nature of the legislation that established these successor companies ie. Bill 35 Energy Competition Act, that envisioned commercial, competitive entities to succeed Ontario Hydro. This was not a decision that originated from Ontario Hydro. The legislation was reviewed by the Law Division of Ontario Hydro, which provided comments to the [Mi
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Legislation
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Subject Index
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Signed by
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Laurel Cropley
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Published
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Dec 21, 2000
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Type
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Order – Final
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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