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Document
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P-863
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File #
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P-9400586, P-9400587, P-9400588, P-9400589, P-9400590, P-9400591, P-9400592,P-9400593 and P-9400594
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Institution/HIC
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Ministry of Housing
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Summary
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NATURE OF THE APPEALS: These are nine appeals under the Freedom of Information and Protection of Privacy Act (the Act ). The Ministry of Housing (the Ministry) received a request for access to the following information which relates to an appeal involving the requester before the Rent Review Hearings Board (the Board): (1) The Hearing Registry and Observer Attendance sheet (2) Determination and Scheduling Form (RRHB 230 "Weighting Form") (3) Record of all inquiries (4) Hearing Status Report (RRHB 196) (5) Board Member's hearing (trial) notes (6) Board Member's Weekly Attendance Log (7) Board Member's Monthly Attendance Log Summary List & Time Sheet (RRHB 232 & RRHB 179) (8) Audio tape (copy) of hearing (trial) (9) Any other information concerning the hearing and case file such as: inter-office memos, record of phone contacts (RRHB 219), record of any and all formal or informal meetings or discussions in regard to the hearing. The Ministry issued its decisions in respect of each part of the request as follows: 1. Access was granted to the one-page "Hearing Attendance Register" dated April 2, 1993. (Appeal Number P-9400586) 2. The form to which the requester was seeking access was discontinued prior to the appeal he had filed with the Board and, therefore, the record does not exist. (Appeal Number P-9400587) 3. Access was granted in full to the requested records which are included in the Board's record file. The requester attended the Board to view the records. The Ministry further informed the requester that should he require copies of any of the information contained in the file it would be made available to him at a cost of $0.20 per page to a total of $26 for the entire file. (Appeal Number P-9400588) 4. Access was granted to the one-page "Hearing Status Report" dated June 14, 1993. (Appeal Number P-9400589) 5. The Residential Rent Regulation Act does not require Board members to take notes. The Ministry indicates that the appeal record file and the member's working file were searched and no notes were found. In addition, if the Board member made notes during the hearing, they are not in the custody or control of the Ministry. (Appeal Number P-9400590) 6. Use of the log to which the requester was seeking access was discontinued prior to the appeal he had filed with the Board and, therefore, the record does not exist. (Appeal Number P-9400591) 7. Neither of the forms were in use by the Board at the time the requester filed his appeal before the Board. However, the Board member's monthly attendance is recorded on the "Personal Attendance Form" to which access was denied pursuant to section 21 of the Act . (Appeal Number P-9400592) 8. The hearing was not recorded and, therefore, the tape does not exist. (Appeal Number P-9400593) 9. Access was granted to a one-page handwritten internal memorandum, dated June 21, 1993. (Appeal Number P-9400594) The requester appealed these decisions, claiming that further records exist in response to Parts 1, 3, 4 and 9 of his request and that the records requested in Parts 2, 6 and 8 of his request do, in fact, exist. In addition, the requester appealed the denial of access to the records responsive to Part 7 of his request and claimed that records responsive to Part 5 of the request are in the custody or control of the Ministry. Finally, the appellant submits that he should not be required to pay a fee for the records as they contain his personal information. During the mediation stage of the appeal, the appellant narrowed the scope of Part 7 of the request to include only the attendance records which pertain to the time that his appeal was before the Board (December 1992 to July 1993, inclusive). Notices of Inquiry setting out the issues in each appeal were sent to the Ministry and the appellant. Representations were received from both parties. In his representations, the appellant indicates that he also wishes to rely on an earlier letter to the Commissioner's office which was received on November 29, 1994. DISCUSSION: REASONABLENESS OF SEARCH Where a requester provides sufficient details about the records to which he is seeking access and the Ministry indicates that no further, responsive records can be located, it is my responsibility to ensure that the Ministry has made a reasonable search to identify any records which are responsive to the request. In my view, the Act does not require that the Ministry prove to the degree of absolute certainty that such records do not exist. However, in order to properly discharge its obligations under the Act , the Ministry must provide the Commissioner's office with sufficient evidence to demonstrate that it has made a reasonable effort to identify and locate records responsive to the request. The appellant contends that reasonable searches were not conducted by the Ministry for records responsive to Parts 1, 2, 3, 4, 6, 8 and 9 of his request. In support of this position he provides the following arguments: 1. Other individuals were in attendance at his hearing but do not appear on the "Hearing Attendance Register" (Part 1); 2. If the "Weighting Form" (RRHB 230) does not exist then the information should be available in another form (Part 2); 3. The "Record of Inquiries" is incomplete as it does not contain all the inquiries made both by himself and other individuals in relation to the Board's file (Part 3); 4. There should be more than one "Hearing Status Report" and that the status report which was provided was not completed in its entirety (Part 4); 5. The Ministry has provided insufficient information in relation to when the use of the "Weekly Attendance Log" was discontinued (Part 6); 6. The Board member "inferred that [the hearing] was being recorded and microphones were used" (Part 8); and 7. The foregoing evidence is indicative of the shortcomings of the Ministry's/Board's searches in these matters (Part 9). The representations of the Ministry include sworn affidavits and supporting documentation from the Vice Chair of the Board, w
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Legislation
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Subject Index
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Signed by
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Donald Hale
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Published
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Feb 10, 1995
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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