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Summary
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NATURE OF THE APPEAL: The appellant is a former employee of the Liquor Control Board of Ontario (the LCBO) who was the subject of an investigation. He was suspended from his job and subsequently terminated. The appellant was also charged under the Criminal Code of Canada , but was not convicted of any offences. The appellant began a civil action against the LCBO for wrongful dismissal. This law suit was settled in July 1995. The appellant submitted a request under the Freedom of Information and Protection of Privacy Act (the Act ) for all records relating to his civil and criminal cases involving the LCBO. The LCBO identified 81 pages of responsive records, consisting of correspondence, an "Authorization and Direction", copies of cheques, draft agreements/offers to settle, minutes of settlement, a chronology of events, summary statements, a copy of a newspaper clipping, various memoranda, and notes to file. The LCBO denied access to all of the records, claiming that they fall within the parameters of section 65(6) of the Act , and therefore outside the scope of the Act The LCBO also included the following statement in its response to the appellant: Also, please note that since some of our records had been transferred to the OPP for investigation, you may wish to approach them directly to obtain a copy of such records. In addition, since the records requested are more than 5 years old, they might have already been archived and/or destroyed. The appellant appealed the LCBO's decision, and also claimed that additional records should exist. This office sent a Notice of Inquiry to the appellant and the LCBO seeking representations on the jurisdictional issue raised by sections 65(6), and also on the issue of whether the LCBO had conducted a reasonable search for responsive records. Representations were received from both parties. DISCUSSION: REASONABLE SEARCH Where an appellant provides sufficient details about the records which he is seeking and the institution (in this case the LCBO) indicates that further records do not exist, it is my responsibility to ensure that the LCBO has made a reasonable search to identify any records which are responsive to the request. The Act does not require the LCBO 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 LCBO 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 LCBO argues that, because section 65(6) applies to the records, the question of reasonable search is irrelevant. In my view, the existence of the new sections 65(6) and (7) of the Act does not alter an institution's statutory responsibility to undertake reasonable efforts to identify and locate all responsive records. As I have noted in an number of previous orders dealing with these new provisions: Section 65(6) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in section 65(7) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner's jurisdiction. In my view, an institution would generally not be in a position to determine whether a record falls under section 65(6) without first reviewing its contents, and then assessing whether it fits within the scope of this section. Not all so-called "labour relations" or "employment-related" records satisfy the various requirements of sections 65(6)1, 2 or 3, and even if they do, they may fit within the scope of one of the exceptions to these exclusions listed in section 65(7). Although an appellant will rarely be in a position to indicate precisely which records have not been identified in an institution's response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records may, in fact, exist. In the case before me, the appellant's request is quite detailed, and outlines the type of information he is seeking, why certain records should exist, and who he feels might have the responsive records. In his appeal letter, the appellant points out that his civil law suit was settled in June 1995, and questions why records would have been destroyed after such a short time period. The LCBO submits that a memorandum regarding the appellant's request was sent to four individuals: a lawyer, the Director of Loss Prevention and Security, the Freedom of Information Administrator for the Retail Division, and the Freedom of Information Administrator for Human Resources. The LCBO states: All files were searched, and all records were sent to [the Freedom of Information Co-ordinator]. Only [the Human Resources Administrator] had any records in her possession. The LCBO points out that the investigation that resulted in the appellant's termination was conducted solely by the Ontario Provincial Police (the OPP), and that, on the advice of the OPP, it did not undertake an independent investigation. In his request letter, the appellant states that he wants access to all records which led to the decision to launch the OPP investigation. He specifically refers to internal investigative reports, audit report, correspondence, and notebook entries, and names a number of LCBO employees who he feels are likely to have prepared these records. The LCBO's response letter is quite general and does not touch on the specific points raised by the appellant. In the Notice of Inquiry, the LCBO was asked to: ... provide us with a written summary of all steps taken in response to the appellant's request. In particular, we ask that you consider the following: 1. Was the appellant contacted for additional clarification of his request? If so, please provide details including a summary of any further information the appellant provided. 2. Please provide details of any searches carried out including: by whom were they conducted, what places were searched, who was contacted in the course of the search, what types of files were searched and finally, what were the results of the searches? I would ask that you include details of any searches carried out to respond
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