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Document
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PO-1730
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File #
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PA-990156-1
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Institution/HIC
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Ontario Hydro
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Summary
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BACKGROUND: 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. NATURE OF THE APPEAL: On February 23, 1999, Ontario Hydro received a request from a reporter for access to all records pertaining to Ontario Hydro's exclusion from the Act . On March 31, 1999, Ontario Hydro advised the requester that "Ontario Hydro continues to be covered by the Act therefore no records exist that respond to your request. Accordingly access is denied." The requester (now the appellant) appealed this decision. During mediation, the appellant clarified that his request included records relating to both Ontario Hydro and its successor companies. Ontario Hydro, as represented by OHSC, disagreed. It took the position that the original request was clear and was restricted to Ontario Hydro. OHSC also maintained that there was no need to seek clarification from the appellant regarding the scope of his request. I sent a Notice of Inquiry to the OHSC (on behalf of Ontario Hydro) and the appellant, and received representations from both parties. DISCUSSION: SCOPE OF THE REQUEST The appellant's request reads as follows: all records pertaining to Ontario Hydro's exemption from the Freedom of Information and Protection of Privacy Act. In his representations, the appellant explains: At the time I made my request, I did not know that Ontario Hydro would cease to exist and that successor companies would take over its operations; as far as I was aware, Ontario Hydro itself was to become exempt from the Act starting April 1, 1999. ... ... The functions once performed by Ontario Hydro are now being carried out by its four successor corporations. In fact, one of those entities, Ontario Hydro Services Company, has stepped into Ontario Hydro's shoes to respond to this appeal. In the circumstances, it is my view that all records which relate to the exemption from the Act of two of Ontario Hydro's successor companies ("the Records in Issue") are responsive to my request. The appellant also points out that if there was any uncertainty regarding the scope of his request, ... Ontario Hydro was under an obligation, pursuant to section 24 of the Act to seek clarification if the scope of my request, and having failed to do so, it cannot now rely on a narrow interpretation of the scope of my request. OHSC takes the position that on February 23, 1999, when the appellant submitted his request, Ontario Hydro "continued as a company and continued to be subject to [the Act ]." On this basis, OHSC supports the decision made by Ontario Hydro at that time that no responsive records existed. OHSC goes on to state that: The appellant is a professional writer, employed by the media and has written about and commented on the activities of Ontario Hydro over a span of many years. In that capacity, he clearly was aware of the upcoming Energy Competition Act and the implications for Ontario Hydro. His request was very specific. It related clearly to Ontario Hydro. Given the source of the request, and the specific wording of the request, there was no reason to seek "clarification." OHSC also submits that the clarification provided by the appellant during mediation represents a new request and, because OHSC is not an institution covered by the Act , it has no legal obligation to respond to any access requests received after April 1, 1999. I agree that the appellant would be precluded from submitting a new request, but I do not accept any of the other positions taken by OHSC. In Order P-880, Adjudicator Anita Fineberg determined that records must "reasonably relate" to the request in order to be considered "responsive." She went on to state: ... the purpose and spirit of freedom of information legislation is best served when government institutions adopt a liberal interpretation of a request. If an institution has any doubts about the interpretation to be given to a request, it has an obligation pursuant to section 24(2) of the Act to assist the requester in reformulating it. As stated in Order 38, an institution may in no way unilaterally limit the scope of its search for records. It must outline the limits of the search to the appellant. Section 24 of the Act imposes obligations on both requesters and institutions when submitting and responding to requests for access to general records. This section states, in part: (1) A person seeking access to a record shall, ... (b) provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record; ... (2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1). At the time of making his request, the appellant was not in a position to know any of the details regarding the corporate structure that would be taking over Ontario Hydro's operations, and more specifically that two of the successor companies, rather than Ontario Hydro
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Legislation
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Subject Index
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Signed by
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Ann Cavoukian
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Published
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Nov 17, 1999
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Type
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Order
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