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Document
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MO-1452
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Institution/HIC
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City of Windsor
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Summary
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NATURE OF THE APPEAL: The City of Windsor (the "City") received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to environmental studies on a certain area of land. In his appeal letter, the appellant expressed concern that industrial waste and oil/chemical residue may be in the soil and that the property is in close proximity to schools. The City located one responsive record, an environment site audit that was commissioned by the owner of the property and submitted to the City for review, as responsive to the request. It then notified the property owner and solicited its views on disclosure of the record. In turn, the property owner provided submissions to the City objecting to disclosure on the basis that the record is a technical audit that was submitted to the City in confidence, and that disclosure would result in competitive harm. In its decision letter, the City confirmed that no environmental assessments were conducted on the property by any provincial or federal agency. It also referred to the environmental audit that was commissioned by the property owner. The City advised the appellant that it had decided not to disclose the record and relied on the exemption at section 10(1) (third party information) of the Act . During mediation of this appeal, the City reiterated that it had searched for, but did not locate, environmental assessment reports by any provincial or federal agency. The appellant was not satisfied that a reasonable search was conducted and maintains that such records should exist. I sent a Notice of Inquiry, setting out the issues and facts of this appeal, to the City and the property owner whose interests may also be affected by this appeal (the affected party). The City returned a response which was shared with the appellant. Representations were received from the affected party and the appellant. RECORD: The record at issue in this appeal is an environmental assessment audit ("audit") that was commissioned by the affected party and prepared by an independent consulting firm. PRELIMINARY ISSUES: Scope of the Request/Reasonableness of Search Where a requester provides sufficient detail about the records which s/he is seeking and the institution indicates that further records do not exist, it is my responsibility to ensure that the institution has made a reasonable search to identify any records which are responsive to the request. The Act does not require the City to prove with absolute certainty that further records do not exist. However, in order to properly discharge its obligations under the Act, the City must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records. Although an appellant will rarely be in a position to indicate precisely which records have not been identified in the institution's response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records may, in fact, exist. The City explained that the appellant did not submit his request in writing and when requested to do so, he refused. It states that the Freedom of Information Coordinator (FOIC) attempted to clarify with him the nature of the information requested. For example, the FOIC indicated that she asked the appellant a series of questions, including the address of the property, who may have produced the audit, whether the information was produced by the City, and the date of the document. The appellant was only able to provide the street intersection of the property. The City submits that it then: ... contacted [Engineer II] who provided the document in question. I (FOIC) requested the third party to provide comments. I then called [the appellant] again telling him that the City of Windsor did not have an "audit". I asked if he knew of any other agency that may have been involved in the clean up of the site. He said "No". In my effort, I thought there may be a difference between an assessment or an audit. Therefore, I recontacted [Engineer II] in our Public Works Department. He indicated that he was unaware of any E.P.A. being done on site. Furthermore, audits and assessments in environmental studies are interchangeable terminology. This was conveyed to the appellant. Unless the appellant could advise of any further details of environmental studies, I have no other way of doing a further search. The appellant confirmed that he personally attended at the Public Works Department and "asked in the first instance if anything had been done" with respect to "any environment research". He acknowledged that City staff instructed him to forward his request to the FOIC, who he unsuccessfully attempted to see and subsequently contacted by telephone. The appellant indicates that he did not submit a written request because he was not advised that it was required. Based on the above, I accept the City's position that the search for the government-conducted assessment reports was reasonable in the circumstances. DISCUSSION: Section 10(1) of the Act provides: A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, if the disclosure could reasonably be expected to, (a) prejudice significantly the competitive position or interfere significantly with the contractual or other negotiations of a person, group of persons, or organization; (b) result in similar information no longer being supplied to the institution where it is in the public interest that similar information continue to be so supplied; (c) result in undue loss or gain to any person, group, committee or financial institution or agency; Section 10(1) exists in recognition of the fact that in the course of carrying out public respons
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Legislation
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Subject Index
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Published
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Jul 06, 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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